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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 8, 2009 Decided March 6, 2009
No. 07-3142
UNITED STATES OF AMERICA,
APPELLEE
v.
RICARDO HENRY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06cr00079-01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee and Mary M.
Petras, Assistant Federal Public Defenders, entered
appearances.
Jeffrey A. Taylor, U.S. Attorney, argued the cause for
appellee. With him on the brief were Roy W. McLeese III,
2
Elizabeth Trosman, Thomas E. Zeno, and Suzanne G. Curt,
Assistant U.S. Attorneys.
Before: ROGERS and BROWN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This appeal involves the question
whether harassing telephone calls made by Ricardo Henry to the
family of a government auditor constitute obstructing justice
within the meaning of § 3C1.1 of the U.S. Sentencing
Guidelines (“U.S.S.G.”) and so justified a two-point
enhancement of his sentence. Section 3C1.1 requires “willful”
conduct. Although a finding regarding a defendant’s intent to
obstruct justice may not be required where conduct is obviously
obstructive and the defendant knew it would be, the obstructive
nature of Henry’s conduct is clouded because he apparently
attempted to disguise his identity in placing the calls and did not
otherwise link the calls to the auditor’s investigation of him.
Accordingly, we must remand the case for the district court to
clarify the factual basis for the enhancement and, if necessary,
resentencing.
I.
Henry was president of Insight Therapeutic Services, Inc.,
a mental health clinic in the District of Columbia that submitted
claims to Medicaid for mental health services rendered by Henry
and others. On May 11, 2006, Henry was indicted for health
care fraud, submitting false claims to Medicaid, bankruptcy
fraud, and a variety of related offenses. On December 12, 2006,
he pled to one count of submitting a false Medicaid claim, and
the government moved to dismiss the remaining charges. The
calculated Sentencing Guidelines range, including a two-point
3
§ 3C1.1 enhancement for obstruction of justice, was 27 to 33
months; the government recommended a sentence of no more
than 27 months as set out in the plea agreement. The district
court sentenced Henry to 20 months incarceration and 24
months supervised release.
In enhancing Henry’s sentence, the district court based its
understanding of the relevant facts on the grand jury testimony
of Henry’s sister and an FBI agent, as well as a report written by
Special Agent Gerald Goldstein of the Office of the D.C.
Inspector General. That record indicates Agent Goldstein was
investigating Henry for Medicaid fraud. Henry apparently knew
this because Agent Goldstein had in person requested documents
from Henry in November 2001 and was the affiant on a search
warrant for Henry’s place of business in June 2002. Henry left
several telephone messages on Agent Goldstein’s answering
machine in regard to the investigation after each of these two
encounters. On August 31, 2002, Agent Goldstein’s two adult
daughters received telephone calls from a blocked number in
which the caller identified himself as an agent of the Justice
Department. The caller claimed to be investigating Agent
Goldstein for “abusing his power” and stated he would send an
agent to meet with the daughters. The caller had an accent, but
the record is unclear as to what kind: Agent Goldstein in 2007
reported that one of his daughters identified the caller’s accent
as Carribean, but the sealed record presents contradictory
evidence. Both calls ended inconclusively soon afterward, and
the daughters informed their father of the calls. On September
5, 2002, Agent Goldstein’s mother received a similar call, which
she immediately reported to her son.
The district court found by a preponderance of the evidence
that Henry made the calls to the Agent’s family, and, although
Henry denied it at the sentencing hearing, he now concedes as
much, see Appellant’s Br. at 12. The district court adopted the
4
recommendation of the presentencing report and, over Henry’s
objection, added a two- point enhancement for obstruction of
justice based on the calls. Henry had argued that his conduct did
not constitute obstruction of justice because he attempted to
disguise his identity and avoided otherwise linking the calls to
the ongoing investigation and thus intended only to harass and
not to intimidate or influence a witness or hamper the
investigation. The district court rejected his argument,
observing: “Special Agent [Goldstein] linked these calls to the
Defendant, [with] the heavy Carribean accent, and the
Defendant in these voice mails had accused the Special Agent
of, quote, abusing his authority, unquote, which [during] one of
the calls the caller had told the agent’s family about Special
Agent Goldstein and used those words.” Sentencing Hr’g. at 7.
The district court therefore concluded that Henry’s “purpose was
to influence the witness [Agent Goldstein].” Id. Unpersuaded
by Henry’s objection that his behavior did not show an intent to
obstruct justice because there was not a significant enough link
between the calls and the investigation, the district court stated:
“I don’t know of any other message other than I can get to you
through family or whatever . . . . So, I think in terms of the
intent, I think it goes beyond just harassing . . . .” Id. at 18.
II.
On appeal Henry contends that a sentencing enhancement
under § 3C1.1 can apply only when a court finds the defendant
either intended to obstruct justice or engaged in “inherently
obstructive” conduct. Because he made efforts to hide the link
between the harassing calls and the investigation, and because
the record does not support the district court’s apparent
conclusion that he made the calls using his own accent, Henry
maintains that the district court erred in enhancing his sentence
and his case must be remanded for resentencing.
5
A.
The Supreme Court has instructed that “a district court
should begin all sentencing proceedings by correctly calculating
the applicable Guidelines range.” Gall v. United States, 128 S.
Ct. 586, 596 (2007); see United States v. Gardellini, 545 F.3d
1089, 1092 n.2 (D.C. Cir. 2008). The parties disagree about the
proper standard for our review. The government would apply a
clear error standard to the obstruction of justice ruling, citing
United States v. Dozier, 162 F.3d 120, 123 (D.C. Cir. 1998),
while Henry distinguishes that case as involving the purely
factual question of what conduct was committed whereas his
appeal involves the question whether conduct that was clearly
committed constitutes obstruction under U.S.S.G. § 3C1.1. In
Henry’s view the relevant precedent is United States v. Day, 524
F.3d 1361 (D.C. Cir. 2008), where the court upheld a § 3C1.1
enhancement because it was “not error under the due deference
standard,” id. at 1373-74.
Before United States v. Booker, 543 U.S. 220 (2005), this
court reviewed sentencing challenges under the “trichotomy”
established in 18 U.S.C. § 3742(e): “[P]urely legal questions are
reviewed de novo; factual findings are to be affirmed unless
‘clearly erroneous’; and we are to give ‘due deference’ to the
district court’s application of the guidelines to facts.” United
States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). Due deference
lies “presumably . . . somewhere between de novo and ‘clearly
erroneous.’” Id. In Booker, the Supreme Court held § 3742(e)
unconstitutional to the extent it required an appellate court to
reverse a sentence that fell outside the Guidelines range, 543
U.S. at 245. In United States v. Tann, 532 F.3d 868 (D.C. Cir.
2008), this court held that, after Booker, the trichotomy
described in Kim remains in place and the due deference
standard still applies to the application of Guidelines to facts:
6
The “due deference” standard survives Booker because
that case did “not change[] how the Guidelines range
is to be calculated.” United States v. Dorcely, 454 F.3d
366, 375 n.6 (D.C. Cir. 2006). Accordingly, when we
apply the first step of the two-step process outlined in
Gall and [United States v.] Olivares [473 F.3d 1224
(D.C. Cir. 2006)], we do precisely what we did prior to
Booker — determine whether the district court
correctly calculated the Guidelines range and remand
for resentencing if it did not. We therefore see no
reason to think Booker displaced the congressionally
mandated standard of review of a district court’s
application of the Guidelines to facts. As we noted in
Olivares, every circuit to have considered the matter
has arrived at the same conclusion. 473 F.3d at
1227-28.
Tann, 532 F.3d at 874.
Tann involved a two-point sentencing enhancement for the
abuse of a position of trust, id.; U.S.S.G. § 3B1.3. Due
deference is also appropriate here. Although at times our §
3C1.1 precedent has used phrases more in keeping with review
for clear error, see, e.g., United States v. Monroe, 990 F.2d 1370
1376 (D.C. Cir. 1993), or de novo review, see, e.g., United
States v. Taylor, 997 F.2d 1551, 1560 (D.C. Cir. 1993), when the
court has focused on whether particular conduct was sufficient
to warrant the enhancement, it has largely accorded due
deference, see, e.g., Day, 524 F.3d at 1373-74; United States v.
Maccado, 225 F.3d 766, 769 (D.C. Cir. 2000); see also Kim, 23
F.3d at 517.
B.
Section 3C1.1 of the 2000 version of the Guidelines, which
applies to Henry’s sentencing, provides:
7
If (A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice during the course of the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to
(i) the defendant’s offense of conviction and any
relevant conduct; or (ii) a closely related offense,
increase the offense level by 2 levels.
U.S. SENTENCING GUIDELINES MANUAL § 3C1.1 (2000). The
Commentary includes non-exhaustive lists of conduct that does
and does not constitute obstruction of justice, and states that
“[a]lthough the conduct to which this adjustment applies is not
subject to precise definition, comparison of the examples . . .
should assist the court.” U.S.S.G. § 3C1.1, cmt. n.3. Among the
examples of obstructive conduct is “threatening, intimidating, or
otherwise unlawfully influencing a co-defendant, witness, or
juror, directly or indirectly, or attempting to do so.” Id. at cmt.
n.4(a). In Henry’s case, the district court applied the sentencing
enhancement based on such conduct, finding it foreseeable that
Agent Goldstein, as the lead investigator, would be a likely
witness at Henry’s trial.
Because § 3C1.1 applies to the “willful” obstruction or
“attempted” obstruction of justice, it clearly contemplates some
form of intent. See BLACK’S LAW DICTIONARY 1630 (8th ed.
2004) (defining willful as “[v]oluntary and intentional, but not
necessarily malicious.”); id. at 137 (defining attempt as “[a]n
overt act that is done with the intent to commit a crime but that
falls short of completing the crime”). The parties disagree,
however, about what a defendant need intend under the law of
this circuit. Henry argues the district court must find that the
defendant specifically intended to obstruct justice, at least where
the defendant’s conduct is not “inherently obstructive,” while
the government argues the court need only find the defendant
8
intended to engage in an act listed as an example in the
Commentary. Henry is correct to the extent our precedent holds
that a § 3C1.1 enhancement is only appropriate where the
defendant acts with the intent to obstruct justice, a requirement
that “flow[s] logically from the definition of the word ‘willful,’
which, this court has suggested, ‘requires that the defendant
consciously act with the purpose of obstructing justice.’”
Monroe, 990 F.2d at 1376 (quoting United States v. Thompson,
962 F.2d 1069, 1071 (D.C. Cir. 1992)). Other circuits have
come to the same conclusion. See, e.g., United States v. Gage,
183 F.3d 711, 716 (7th Cir. 1999); see id. at 717-18 (Posner, J.,
concurring) (collecting cases in the 2d, 5th, 7th, 9th, and 10th
Circuits).
However, where a defendant willfully engages in behavior
that is inherently obstructive – that is, behavior that a rational
person would expect to obstruct justice – this court has not
required a separate finding of the specific intent to obstruct
justice. For example, in Maccado, the court upheld a § 3C1.1
enhancement for failure to provide a handwriting example
because such failure “clearly has the potential to weaken the
government’s case, prolong the pendency of the charges, and
encumber the court’s docket” and the record did not show a lack
of such an intent. 225 F.3d at 772. Still, our precedent is clear
that where a defendant offers evidence that he acted without any
subjective motivation to obstruct justice, a court must evaluate
that evidence and can apply a § 3C1.1 enhancement only upon
finding the defendant acted “with the purpose of obstructing
justice,” Monroe, 990 F.2d at 1376. Again, in Maccado, the
court held that although a § 3C1.1 enhancement normally
applies for the objectively obstructive conduct of failing to
provide a handwriting exemplar, “[i]t remains for the district
court to determine whether a defendant has offered a sufficient
reason for failing to comply with the court order as would make
application of the guideline inappropriate.” 255 F.3d at 772. In
9
other words, although a court ordinarily may rely on the willing
commission of conduct that, objectively viewed, tends to
obstruct justice, such an objective standard serves only as a
proxy of the actual subjective intent required by the Guideline.
Where conduct is directly and inherently obstructive, the court
may infer an intent to obstruct justice. But where the evidence
shows such a proxy is not reliable and the defendant did not
have the required intent, an enhancement is not warranted.
United States v. Taylor, 997 F.2d 1551 (D.C. Cir. 1993),
relied on by the government, is not to the contrary. The
defendant in Taylor argued he fled the courthouse during jury
deliberations out of fear, without an intent to obstruct justice,
and so enhancement under § 3C1.1 was unwarranted. This court
upheld the enhancement in large part because the Guidelines had
recently been amended to include flight to escape sentencing as
an example of obstructive conduct. Id. at 1559-60. Although
this holding has sometimes been interpreted as a signal that the
specific intent to obstruct justice is not necessary under § 3C1.1,
see Maccado, 225 F.3d at 772; Gage, 183 F.3d at 718 (Posner,
J., concurring), such an interpretation is in tension with the
Guidelines and with Taylor itself, which quoted Monroe for the
proposition that “the willfulness requirement of section 3C1.1
arguably ‘requires that the defendant consciously act with the
purpose of obstructing justice.’” 997 F.2d at 1560 (quoting
Monroe, 990 F.2d at 1376). The court in Taylor proceeded to
describe how the defendant’s behavior did, in fact, show an
intent to obstruct justice:
It is not a foregone conclusion the defendant’s
motivation of fear would have taken his conduct out of
the mens rea requirement our sister circuits discerned
under the unamended Guideline. That is, he fled
because he was afraid, but presumably what his fear
motivated him to accomplish was the obstruction of
10
justice. It seems unlikely that he fled thinking the
criminal justice process would go on in his absence,
and if he thought so originally, he must have known
better by the time he was free for five days before he
ultimately surrendered to the bench warrant.
Id.
Thus, the court’s reliance in Taylor on the Commentary
listing of the conduct at issue is best understood not as an
exception to the requirement of a showing of intent to obstruct
justice, but rather as an acceptance of the Sentencing
Commission’s judgment that the defendant’s behavior in that
case necessarily showed such intent. As Taylor embraced our
holding in Monroe that the text of § 3C1.1 requires the intent to
obstruct justice, 997 F.2d at 1560, had Taylor further held that
an enhancement is warranted because the defendant engaged in
behavior listed in the Commentary, regardless of intent, it would
have elevated the Commentary over the text of the Guidelines
themselves in an impermissible manner. Stinson v. United
States, 508 U.S. 36, 43, 45 (1993). Furthermore, nothing in
Taylor contradicts the holding of Maccado that, even given
inherently obstructive conduct, a court must review proffered
evidence of a non-obstructive intent. In Taylor, this court, like
the district court, considered and rejected the defendant’s
explanation that he fled only out of fear because the record
showed he was aware of the requirement to be present, knew his
failure to appear would obstruct justice, and willfully absented
himself nevertheless, 997 F.2d at 1560, and so was “motivated
. . . to accomplish . . . the obstruction of justice.” Id. Of course,
where conduct is inherently obstructive and no evidence is
proffered to show non-obstructive intent, the district court can
presume the existence of the requisite intent.
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For these same reasons, the government’s contention that a
court need find only that a defendant engaged willingly in
behavior listed in the Commentary examples, even in the face of
evidence of a lack of intent to obstruct justice, is not well taken.
Some of the examples listed in the Commentary, like failure to
appear at a sentencing, require only factual findings by a court;
the court need only find the defendant committed that act, and
did so knowingly, to rely on the judgment of the Sentencing
Commission that commission of the act shows the requisite
intent, absent a showing of a contrary intent. See Taylor, 997
F.2d at 1560. Other Commentary examples, such as “indirectly
attempting” to “unlawfully influenc[e] a . . . witness,” require
legal conclusions as to intent, and in order to find the
defendant’s conduct falls within the ambit of the Commentary
example, a court must find the defendant willfully engaged in
behavior that is objectively obstructive. For example, while the
Commentary lists “committing, suborning, or attempting to
suborn perjury” as an example of obstructive conduct, without
any mention of the required intent, the Supreme Court has held
that “a district court must review the evidence and make
independent findings necessary to establish a willful impediment
to or obstruction of justice, or an attempt to do the same.”
United States v. Dunnigan, 507 U.S. 87, 95 (1993); see United
States v. Smith, 374 F.3d 1240, 1245 (D.C. Cir. 2004). Where
threatening a witness is found to be inherently obstructive, and
the defendant fails to proffer sufficient evidence of a different
intent, a court need look no further because the conduct itself
creates the presumed inference of obstructive intent. Where the
conduct is indirect or ambiguous, a court must make a supported
finding that the defendant acted with the intent to obstruct
justice. See Maccado, 225 F.3d at 772.
C.
On the current record, Henry’s conduct in making the
telephone calls to the investigator’s family does not appear
12
inherently obstructive. It is possible to harass an investigator or
witness without obstructing the investigation. Anonymously
dumping garbage in an investigator’s yard, for example, would
be harassing but not obstructive. As we read the sentencing
transcript, the district court did not conclude the act of making
the calls was inherently obstructive, but rather relied on two
factors to link Henry’s conduct to the investigation and thereby
find he intended to obstruct justice: his accent and his use of the
phrase “abuse his power.” It would not be clear error to find
Henry made the call using his own accent since Agent Goldstein
so stated in his declaration and his relatives were able to identify
Henry’s voice from a recording as the same voice they heard
during the calls. It is not clear that the district court was making
such a finding, however, because the court did not mention the
evidence that indicated Henry may have attempted to disguise
his identity by affecting a different accent. But even if the
district court had made such a finding it would not suffice to
show the requisite intent. Facts focused on by the district court
— such as Henry’s accent and his use of the phrase “abuse of
power” — do not say anything about Henry’s intent to obstruct.
Neither the district court nor the parties suggest that his attempt
to preserve his anonymity (or his failure to do so) is dispositive
of the question of intent. This is especially so in light of the
evidence that Henry also used a false name and blocked his
telephone number. According due deference to the district’s
court’s application of law to facts, these two factors are
insufficient to support the finding that Henry’s purpose was to
influence Agent Goldstein as a witness.
Henry objected at sentencing that there was not a
“significant enough link” between his telephone calls to the
investigator’s family and the on-going investigation of him. By
this he presumably meant that he could not have intended to
obstruct justice because, if his apparent plan to harass
anonymously had succeeded, and if Agent Goldstein had been
13
motivated to execute his duties less vigorously, Agent Goldstein
would not have known what investigation to sabotage. Neither
the district court nor the government have addressed this
inconsistency. The district court replied to Henry’s objection
that “the whole point” of the Guidelines in punishing attempted
“indirect” influence or intimidation of witnesses “is that you
don’t have to say I’m doing this so that he stops . . . [the]
investigation into . . . my activities . . . . But clearly it’s targeted
to people who would be . . . associated with the Special [A]gent
who clearly would be family who would let him know. And I
don’t know of any other message other than I can get to you
through family or whatever.” Sentencing Hr’g 17-18. The
district court thus concentrated on the severity of the threat or
the link between Agent Goldstein and his family, rather than on
the link between the calls and the investigation. The district
court was correct that Henry cannot be relieved of the § 3C1.1
enhancement simply because he called Agent Goldstein’s family
members, rather than the Agent himself. However, unlike the
defendant in United States v. Jackson, 974 F.2d 104, 105 (9th
Cir. 1992), who attempted to influence a witness indirectly,
Henry took steps to prevent Agent Goldstein from knowing who
made the threats or linking those threats to the Agent’s
investigation of Henry. The district court stated the implied
message in Henry’s calls was “I can get to you through family,”
Sentencing Hr’g at 18, but on this record Henry seems to have
attempted to obscure the identity of the “I” doing the
threatening.
The government suggests the calls were linked when Agent
Goldstein discovered the identity of the caller. But the question
is whether Henry intended that they be linked. The
government’s reliance on United States v. Searcy, 316 F.3d 550
(5th Cir. 2002), for the proposition that a threat need not be
direct in order to obstruct justice is misplaced. In Searcy, the
defendant, who was on pre-trial release, had unsuccessfully
14
attempted to plant drugs at the home of a cooperating witness
who had informed on the defendant, id. at 551. Unlike Henry’s
intent, Searcy’s intent to obstruct was clear because “had
Searcy’s plan succeeded, the credibility of a potential
Government witness would have been undermined, adversely
affecting the Government’s ability to present its case.” Id. at
553. To the extent the government relies primarily on United
States v. Chavarria, 377 F.3d 475 (5th Cir. 2004), in urging that
Henry had the requisite intent, that case is clearly
distinguishable. In Chavarria, the defendant had made a
graphic threat to an arresting officer, threatening to disembowel
him and burn down his house, and claiming membership in a
well-known gang. Id. at 477. The district court rejected the
defendant’s explanation he had reacted in pain without any
intent to obstruct justice, and the enhancement for obstruction of
justice was upheld on appeal on review for clear error.
Whatever the persuasive force of Chavarria, see id. at 482
(Dennis, J., dissenting), the officer/potential-witness could have
no doubt that the threat was directly tied to the defendant’s case,
and, to the extent the officer found the threat credible and
adjusted his behavior, the threat would obstruct the prosecution
of the defendant’s case. If Henry’s calls had remained
anonymous, the record suggests no reason to think they were of
such number or severity that could have affected Agent
Goldstein’s investigation of Henry.
Henry’s conduct in calling Agent Goldstein’s family is
difficult to explain. Perhaps he intended, as he contends, only
to inflict petty revenge with no effect on the investigation.
Perhaps, as the government suggests, he wanted to impede the
investigation but not leave enough evidence to get caught doing
so. Perhaps he had some other intent altogether, or a murky
intent, or multiple, inconsistent intents. A number of these
scenarios are consistent with the record evidence and would still
qualify him for the sentencing enhancement. However, absent
15
findings by the district court that offer a sufficient explanation
of what intent Henry had, other than the summary assertion that
his “purpose was to influence the witness” — a conclusion that
is difficult to square with the evidence of his efforts at
concealment without further findings or explanation — a
remand is necessary. Accordingly, we remand the case for the
district court to clarify the factual basis for the enhancement
and, if necessary, resentencing.