The opinion
Case: 18-14215 Date Filed: 07/18/2019 Page: 1 of 16
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14215
Non-Argument Calendar
________________________
D.C. Docket No. 4:17-cr-10026-JLK-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MISTY MARIE HOWARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 18, 2019)
Before TJOFLAT, JILL PRYOR and JULIE CARNES, Circuit Judges.
PER CURIAM:
Case: 18-14215 Date Filed: 07/18/2019 Page: 2 of 16
Defendant Misty Marie Howard appeals her 24-month sentence, which was
imposed after she pled guilty to one count of conspiring to possess with intent to
distribute detectable amounts of crack cocaine and oxycodone. On appeal, Howard
argues that in calculating her offense level the district court erred in refusing to
apply a two-level downward adjustment for her minor role and in applying a two-
level enhancement for obstruction of justice. After careful review, we conclude
that the district court did not err in refusing to apply the minor role enhancement.
Regarding the obstruction-of-justice enhancement, we must remand because the
district court failed to provide sufficient findings for us to review its decision. We
thus affirm in part and vacate in part.
I. BACKGROUND
A. The Drug Transactions
This case arises out of four transactions in which Howard and her boyfriend,
co-defendant Willie Evens, sold crack cocaine and oxycodone to a buyer who was
working for the government as a confidential source. Before the first transaction,
Evens spoke with the buyer on the phone. They agreed to meet so that the buyer
could purchase oxycodone pills and crack cocaine. Howard accompanied Evens to
the meeting where the buyer paid $1,670 for the drugs.
2
Case: 18-14215 Date Filed: 07/18/2019 Page: 3 of 16
Over the course of several phone calls and text messages, Evens and the
buyer arranged a second drug transaction. When Evens, Howard, and the buyer
met for a second time, the buyer paid Evens $1,750 for oxycodone pills.
For the third transaction, Evens and the buyer again exchanged phone calls
and text messages. Again, Howard accompanied Evens to the meeting. At the
meeting, the buyer paid Evens $1,750 in cash. Howard then passed him a cigarette
box that contained oxycodone pills.
Shortly after the third transaction, Evens was arrested on a federal firearms
charge. After Evens’s arrest, Howard contacted the buyer and told him that she
still was selling narcotics. Over a series of text messages, she arranged a fourth
transaction. Howard met the buyer in a parking lot where he paid her $370 for 10
oxycodone pills.
B. Procedural History
A grand jury charged Howard and Evens with one count of conspiracy to
possess with intent to distribute a controlled substance as well as substantive
counts of possession with intent to distribute a controlled substance. Based on the
indictment, arrest warrants were issued for Howard and Evens. Evens, who was
already in custody on the firearms charge, was promptly arraigned. Evens pled
guilty to the conspiracy count in exchange for the government dismissing the
remaining counts.
3
Case: 18-14215 Date Filed: 07/18/2019 Page: 4 of 16
Howard was given two opportunities to self surrender but instead fled from
law enforcement. Approximately six months after the first self-surrender date,
Howard was arrested by the United States Marshals Service. She subsequently
pled guilty to the conspiracy count in exchange for the government dismissing the
remaining charges.
In advance of sentencing, the probation office prepared a presentence
investigation report (“PSI”). Based on the quantity of drugs involved in the
offense, the probation officer found Howard’s base offense level was 16. The
probation officer then applied a two-level enhancement for obstruction of justice.
The probation officer stated that the enhancement was warranted because Howard
had been given two opportunities to self surrender but failed to turn herself in. The
probation officer also concluded that Howard made a false statement, explaining
that when she failed to show up for the first self-surrender date, she was called
from court, and she reported that she was on her way but was having car trouble.
Despite making this statement, Howard never showed up to court. The probation
officer also applied a two-level reduction for acceptance of responsibility, yielding
a total offense level of 16. Based on the total offense level and Howard’s criminal
history category of II, the probation officer calculated Howard’s total guideline
range as 24 to 30 months’ imprisonment.
4
Case: 18-14215 Date Filed: 07/18/2019 Page: 5 of 16
Howard raised several objections to the PSI. First, she asserted that the
probation officer should have applied a two-level reduction to her offense level
under U.S.S.G. § 3B1.2 because she played only a minor role in the offense.
Second, she argued that the probation officer should not have applied the two-level
enhancement for obstruction of justice under U.S.S.G. § 3C1.1. Howard
acknowledged that she fled prior to her arrest but argued that her conduct did not
constitute obstruction of justice. Third, she requested that the court grant her a
downward variance to avoid an unwarranted sentencing disparity with Evens, who
had been sentenced to only 18 months’ imprisonment for his role in the drug
transaction.1
The government filed a written response to Howard’s objections. In
addressing the obstruction-of-justice enhancement, the government provided a
more detailed narrative about the circumstances surrounding Howard’s failure to
self surrender. The government explained that after Howard was charged, she
retained counsel who contacted the government and requested that she be allowed
to self surrender. The government agreed and set a specific time for her surrender,
arranging it so that she could make her initial appearance before a magistrate judge
1
At the time Evens was sentenced, he was serving a separate 70-month sentence on the
federal firearms arms charge, for which he had been arrested after the third drug transaction. The
district court ordered that his 18-month sentence in this case was to run concurrently with the
sentence for the firearms offense.
5
Case: 18-14215 Date Filed: 07/18/2019 Page: 6 of 16
on the same day. But on the agreed-upon date, Howard failed to appear. That day,
she told her attorney that she was having car trouble but was on her way to court.
Her attorney then communicated this statement to the magistrate judge. Although
the magistrate judge, prosecutor, case agents, and marshals agreed to wait for
Howard, she never came to court. When Department of Homeland Security
(“DHS”) agents subsequently were unable to locate her, her case was transferred to
fugitive status.
Several months later, Howard was contacted by a DHS agent, and she again
agreed to self surrender. On the morning when she was supposed to turn herself in,
Howard texted the agent, stating that she was waiting for an Uber car, then later
texted that she was taking a bus. When the agent called Howard and offered to
pick her up, she hung up on him. She never showed up to meet the agent. Several
days later, she was arrested.
After the government filed its response, the probation officer prepared an
addendum to the PSI. In the addendum, the officer responded to Howard’s
objections. Regarding the obstruction-of-justice enhancement, the addendum
largely repeated the information in the initial PSI about how Howard had provided
false information when she stated on her first self-surrender date that she had car
trouble but was on her way to court. The addendum, like the initial PSI, noted that
6
Case: 18-14215 Date Filed: 07/18/2019 Page: 7 of 16
she was given a second opportunity to self surrender, but it identified no false
statement that she made in connection with her second failure to self surrender.
At the sentencing hearing, Howard renewed her objections to the PSI, which
the district court overruled. In overruling the objection to the obstruction
enhancement, the district court adopted the reasoning in the addendum to the PSI.
Accordingly, the district court found that Howard had twice failed to self surrender
and made a false statement when, on the first scheduled self-surrender date, she
reported that she was on her way to court and was having car trouble but then did
not show up. Neither the addendum nor the court offered any explanation about
why the false statement was material or how it significantly impeded the
prosecution.
The court then considered Howard’s objection regarding the minor-role
reduction. The court found that she had more than a minor role in the criminal
activity. The court noted that she was present at each drug transaction and
coordinated the last transaction on her own.
The court adopted the PSI’s guidelines calculation, which yielded a
recommendation of 24 to 30 months’ imprisonment. Howard renewed her request
for a downward variance, arguing that her sentence should be reduced to avoid an
unwarranted disparity with Evens’s 18-month sentence. The court denied the
7
Case: 18-14215 Date Filed: 07/18/2019 Page: 8 of 16
variance. After considering the § 3553(a) factors, the court imposed a sentence of
24 months’ imprisonment. This is Howard’s appeal.
II. ANALYSIS
Howard argues that the district court made two errors in applying the
Sentencing Guidelines. She contends that the court erred in refusing to apply a
downward adjustment for her minor role and in applying an enhancement for
obstruction of justice. We consider these arguments in turn.
A. The District Court Did Not Clearly Err in Refusing to Apply a Minor-
Role Adjustment.
Howard first argues that the district court erred in denying her a two-level
reduction in offense level under U.S.S.G. § 3B1.2(b) because of her minor role in
the offense. Because the district court’s determination of a defendant’s role in the
offense is a factual finding, we review it only for clear error. United States v.
Rodriguez de Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). “A factual
finding is clearly erroneous when, upon review of the evidence, we are left with a
definite and firm conviction a mistake has been made.” United States v.
Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015). But a “district court’s choice
between two permissible views of the evidence as to the defendant’s role in the
offense will rarely constitute clear error so long as the basis of the trial court’s
decision is supported by the record and does not involve a misapplication of a rule
of law.” United States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016)
8
Case: 18-14215 Date Filed: 07/18/2019 Page: 9 of 16
(alteration adopted) (internal quotation marks omitted). We cannot say that the
district court’s determination that Howard had more than a minor role was clearly
erroneous.
The Sentencing Guidelines provide for a two-level reduction to a
defendant’s offense level if she was a minor participant in the criminal activity.
See U.S.S.G. § 3B1.2(b). A minor participant is one “who is less culpable than
most other participants in the criminal activity, but whose role could not be
described as minimal.” Id. § 3B1.2, cmt. n.5. The question of whether a defendant
is entitled to a minor-role reduction is “based on the totality of the circumstances
and involves a determination that is heavily dependent upon the facts of the
particular case.” Id. § 3B1.2, cmt. n.3(C). The defendant has the burden of
proving her minor role in the offense by a preponderance of the evidence.
Rodriguez de Varon, 175 F.3d at 939.
Two principles guide the determination of whether a defendant played a
minor role in a criminal scheme: (1) “the defendant’s role in the relevant conduct
for which she has been held accountable at sentencing,” and (2) “her role as
compared to that of other participants in her relevant conduct.” Id. at 940. In
addition, commentary to § 3B1.2 provides additional guidance on when a minor
role reduction is appropriate, directing district courts to consider: (1) the degree of
the defendant’s understanding of the scope and structure of the crime; (2) the
9
Case: 18-14215 Date Filed: 07/18/2019 Page: 10 of 16
degree of the defendant’s participation in the planning or organization of the crime;
(3) the degree of the defendant’s decision-making authority; (4) the nature and
extent of the defendant’s participation in the crime, including the acts she
performed and how much discretion and responsibility she had; and (5) how much
the defendant stood to benefit from the crime. U.S.S.G. § 3B1.2, cmt. n.3(C).
Here, the district court did not clearly err when it found that Howard had
more than a minor role. After noting that Howard was present for all the
transactions, the district court explained that she coordinated the fourth transaction
on her own and was the sole recipient of the proceeds from that transaction. Given
the record evidence about Howard’s planning and role in the fourth transaction, we
are not left with a definite and firm conviction that a mistake was made when the
district court denied her request for a minor-role reduction.
Howard nonetheless argues that she was entitled to a minor-role reduction
because her conduct was minor when compared to Evens’s larger role. It’s true
that Evens, not Howard, arranged the first three drug transactions and accepted the
buyer’s payments. But the fact that Evens played a larger role than Howard does
not mean that she played a minor role; we have recognized that for some schemes
none of the participants will qualify as a minor or minimal participant. See
Rodriguez de Varon, 175 F.3d at 944.
10
Case: 18-14215 Date Filed: 07/18/2019 Page: 11 of 16
B. The District Court Failed to Make Sufficient Factual Findings to Allow
for Appellate Review of the Obstruction Enhancement.
Howard also challenges the district court’s application of a two-level
enhancement for obstruction of justice under U.S.S.G. § 3C1.1. With respect to a
sentencing enhancement for obstruction of justice, we review for clear error the
district court’s factual findings and de novo its application of the factual findings to
the Sentencing Guidelines. United States v. Watts, 896 F.3d 1245, 1254 (11th Cir.
2018).
Section 3C1.1 states:
If (1) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to (A) the
defendant’s offense of conviction and any relevant conduct; or (B) a
closely related offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1. Here, we must consider whether the district court erred in
applying the enhancement on the basis that Howard made a materially false
statement to a law enforcement officer that impeded her prosecution. We accept
that Howard’s act of making a false statement to a law enforcement officer could
justify application of the obstruction-of-justice enhancement. But we must vacate
and remand because the district court failed to make sufficient factual findings
about why Howard’s false statement was material and how her false statement, as
opposed to the fact that she failed to self surrender, impeded her prosecution.
11
Case: 18-14215 Date Filed: 07/18/2019 Page: 12 of 16
The commentary to § 3C1.1 tells us that that merely “avoiding or fleeing
from arrest” generally does not qualify as obstruction of justice. U.S.S.G. § 3C1.1,
cmt. n.5(D). 2 The district court nonetheless concluded that the obstruction
enhancement was warranted because Howard made a false statement when she
reported, on the first scheduled self-surrender date, that she was having car trouble.
The commentary states that a defendant engages in obstruction of justice if she
“provide[s] a materially false statement to a law enforcement officer that
significantly obstructed or impeded the official investigation or prosecution of the
instant offense.” Id. § 3C1.1, cmt. n.4(G). A material statement is one that “if
believed, would tend to influence or affect the issue under determination.” Id. §
3C1.1, cmt. n.6. And to establish that the defendant’s conduct obstructed or
impeded the investigation or prosecution, the government must show that “it
fruitlessly spent investigation or prosecution resources due to [the defendant’s]
untruthfulness.” United States v. Banks, 347 F.3d 1266, 1270-71 (11th Cir. 2003). 3
2
The commentary also states that “willfully failing to appear, as ordered, for a judicial
proceeding” constitutes obstruction. U.S.S.G. § 3C1.1, cmt. n.4(E). To the extent that the
district court relied on this standard to apply the enhancement, we cannot say that it justifies
applying the enhancement given that there is no indication that Howard was actually ordered to
appear for either agreed-upon self-surrender date.
3
In Banks, we announced this standard in the context of addressing whether an
obstruction enhancement was warranted based upon a separate portion of the commentary to
§ 3C1.1, which provides that an obstruction enhancement is warranted if the defendant provided
a false name or identification document at arrest so long as the defendant’s conduct caused a
“significant hindrance to the investigation or prosecution of the instant offense.” U.S.S.G.
§ 3C1.1, cmt. n.5(a). But later in Banks we applied the same “significant hinderance” standard
to determine whether the defendant’s false statement to a law enforcement officer “significantly
12
Case: 18-14215 Date Filed: 07/18/2019 Page: 13 of 16
At sentencing, the district court, adopting the probation officer’s addendum
to the PSI, found that Howard had made a false statement to a law enforcement
officer when, on the first scheduled self-surrender date, she falsely stated that she
was having car trouble but was on her way to court. But the district court provided
no explanation as to how this false statement was material or impeded the
investigation or prosecution. Given the district court’s failure to include such
findings, our en banc decision in United States v. Alpert, 28 F.3d 1104 (11th Cir.
1994) (en banc), dictates that we vacate and remand this case so that the district
court can make the required factual findings about how Howard’s false statement
was material and how her particular false statement—as distinguished from the fact
that she failed to surrender—impeded her prosecution.
In Alpert, we considered whether the district court erred in imposing an
obstruction of justice enhancement when a couple fled prior to arrest. After the
couple had been questioned by the government about potential credit card fraud,
they entered into plea negotiations, which progressed to the point of discussing
their potential sentences and the application of specific enhancements under the
Guidelines. Id. at 1106. While the plea negotiations were ongoing, the
government refrained from seeking an indictment. Id. Before the last scheduled
obstructed or impeded the official investigation or prosecution.” See Banks, 347 F.3d at 1270
n.2.
13
Case: 18-14215 Date Filed: 07/18/2019 Page: 14 of 16
negotiation session, the couple disappeared. Id. After the couple fled, the
government presented the case to the grand jury and secured an indictment. Id.
Several months after fleeing, the couple was found in California and arrested. Id.
They ultimately pled guilty to the fraud charges. Id. At sentencing, the district
court applied an enhancement for obstruction of justice, finding that the couple’s
“disappearance and subsequent activities slowed down the criminal process.” Id.
On appeal, we vacated the sentences. We began by explaining that the
couple’s act of fleeing while they were engaged in plea negotiations did not
constitute obstruction of justice. Id. at 1107. We stated that the enhancement
“does not apply to persons engaged in criminal activity who learn of an
investigation into that activity and simply disappear to avoid arrest, without
more.” 4 Id. We then considered whether the couple had engaged in additional
conduct that would warrant application of the enhancement. See id. We observed
that the obstruction enhancement would have been warranted if either defendant
had made a materially false statement to a law enforcement officer that
significantly obstructed or impeded the investigation or prosecution. Id. But we
4
In Alpert, we characterized the couple’s actions as “simply disappear[ing] to avoid
arrest, without more,” even though the couple disappeared during ongoing plea negotiations and
the government, in reliance on those negotiations, had refrained from securing an indictment. Id.
at 1106-07. Consistent with Alpert, we must treat Howard’s act of fleeing after negotiating her
self surrender as simply disappearing to avoid arrest, even though the government had delayed
arresting her in reliance on her promise to self surrender.
14
Case: 18-14215 Date Filed: 07/18/2019 Page: 15 of 16
concluded that we could not engage in “meaningful appellate review” of whether
the enhancement was warranted on this basis because the district court made
insufficient factual findings: the court failed to make findings that the defendants
had made a false statement, the statement was material, and the statement
significantly obstructed or impeded the investigation. Id. at 1107-08. We
remanded the case so that the district court could make such factual findings,
explaining that on remand the court “should note specifically what each defendant
did, why that conduct warrants the enhancement, and, if applicable, how that
conduct actually hindered the investigation or prosecution of the offense.” Id.
Under Alpert, the district court’s findings here were insufficient to allow us
to engage in meaningful appellate review of the court’s decision to apply the
obstruction-of-justice enhancement. At sentencing, when the district court
overruled Howard’s objection, it adopted the reasoning in the probation officer’s
PSI addendum about why the enhancement applied. Although the addendum to the
PSI indicated that Howard made a false statement on the date of the first scheduled
self surrender when she reported having car trouble but being on her way to court,
it included no explanation as to why Howard’s false statement was material or how
it impeded the investigation or prosecution. In the absence of clear factual findings
from the district court about why the statement was material or how her conduct
actually hindered the investigation or prosecution, we cannot assess whether the
15
Case: 18-14215 Date Filed: 07/18/2019 Page: 16 of 16
enhancement was appropriately applied and therefore must vacate the sentence.
See Alpert, 28 F.3d at 1108. If on remand, the district court decides to apply the
enhancement, it must make particularized factual findings as to materiality and
explain how the false statement hindered the prosecution.5
III. CONCLUSION
For the reasons set forth above, we vacate Howard’s sentence and remand
for resentencing consistent with this opinion. 6
VACATED AND REMANDED.
5
We note that Howard also could have obstructed justice if she “provid[ed] materially
false information to a . . . magistrate judge.” U.S.S.G. § 3C1.1, cmt. n.4(F). To the extent that
the district court imposed the obstruction-of-justice enhancement on this ground, we vacate
because we again conclude that the district court failed to provide sufficient factual findings to
allow us to assess whether the enhancement was appropriately applied. If on remand the district
court chooses to apply the obstruction enhancement on the basis that Howard made a false
statement to a magistrate judge, the district court not only must identify the particular false
statement that Howard made to the magistrate judge but also must explain why the statement was
material. See Alpert, 28 F.3d at 1108.
6
Howard also argues her sentence was substantively unreasonable because there was an
unwarranted disparity between her 24-month sentence and Evens’s 18-month sentence. Because
we vacate and remand on the obstruction-of-justice enhancement, we do not reach the question
of whether the sentence imposed was substantively reasonable.
16