United States v. Claiborne

Case: 10-51189 Document: 00511803809 Page: 1 Date Filed: 03/28/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 28, 2012

No. 10-51189 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee

v.

TROY DARNELL CLAIBORNE,

Defendant–Appellant

Appeal from the United States District Court

for the Western District of Texas

Before JONES, Chief Judge, PRADO and SOUTHWICK, Circuit Judges.

PER CURIAM:

This case deals with the district court’s application of the obstruction of

justice enhancement and non-application of the minor role reduction to

Defendant–Appellant Troy Claiborne’s sentence for aiding and abetting the

possession with intent to distribute crack cocaine. We AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 22, 2010, an Odessa Police Department narcotics detective

received information from a confidential informant (“CI”) that a black male,

known as “Twin,” would be selling two ounces of crack to the CI in the H.E.B.

parking lot in Odessa, Texas that night. According to the CI, Twin would be

driving a white Impala with California licenses plates. Based on this tip,

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detectives set up surveillance in the parking lot and observed a white Impala

matching the CI’s description enter and park in the lot. Two black men exited

the car and “were looking around suspiciously as if they were looking for

someone.” Detectives approached the men, who identified themselves as Troy

Claiborne and Levale Weldon. As they were all walking back to the car, a

detective noticed a plastic bag underneath the car on the driver’s side just in

front of the driver’s-side rear tire. The bag contained eight individually-wrapped

packages of crack. Weldon, who owned the Impala, consented to a search of it,

and detectives found white residue, which tested positive for cocaine, on the

floorboards of both the driver’s and the passenger’s side.

Also during the search, three cell phones were recovered—a Samsung, a

Blackberry, and a Motorola. Weldon claimed the Samsung phone was his, and

Claiborne claimed the Motorola. Claiborne initially denied that the Blackberry

was his, but he later claimed the phone. The Blackberry contained text

messages that a detective believed involved drug transactions. Detectives

discovered that the CI had called the Motorola phone when setting up the

purchase. At the time of their arrest, Weldon had $580 on him, and Claiborne

had $1,232. Claiborne claimed that he was unemployed but that he made money

gambling and playing pool. Detectives showed the CI photographs of Weldon

and Claiborne, and the CI identified Weldon as “Twin.” The CI did not, however,

recognize Claiborne.

After the arrests, Claiborne and Weldon were placed in a police car. While

seated in the backseat, Weldon unbuckled both of their seatbelts. Weldon then

started in on a conversation with Claiborne about escaping, asking “Is your

window all the way down like mine?”; “Did he already seat belt you?”; and “Can

you open it up from your door? . . . [’C]uz its gonna take him longer to get to

your side.” Claiborne’s only response to these questions was when Weldon

asked, “You hear me?,” Claiborne replied, “Um-hmm.” Weldon went on to

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explain, “He’s [the detective] gonna try to shut that door . . . pursuing a chase on

you . . . cuz one of us is gonna get away . . . I just can’t live no more . . . .”

After pleading guilty without a plea agreement to aiding and abetting the

possession with intent to distribute five grams or more of crack, see 21 U.S.C. §§

841(a)(1) and 841(b)(1)(B)(iii) and 18 U.S.C. § 2, a Presentence Investigation

Report (“PSR”) was prepared for Claiborne. The probation officer found that

Claiborne had attempted to escape from the police car and recommended

enhancing the offense level for obstructing justice. She calculated a total offense

level of 27—base level of 28, see U.S. Sentencing Guidelines Manual

§§ 2D1.1(c)(6) and (a)(5) (2010), a two-level increase for obstruction of justice, see

id. at § 3C1.1, and a three-level decrease for acceptance of responsibility, see id.

at § 3E1.1. When combined with a criminal history category of I, Claiborne’s

Guidelines range sentence was 70 to 87 months imprisonment. See id. at ch. 5,

pt. A.

Claiborne filed objections to the PSR, arguing, inter alia, that he should

have received a downward adjustment to his offense level, pursuant to § 3B1.2,

because he was a minor participant. The district court determined that

Claiborne had not met his burden of establishing that he was substantially less

culpable than Weldon. The district court imposed a 78-month prison sentence,

in the middle of the Guidelines range, stating, “I’m not departing from the

recommended sentence.” Claiborne timely appealed.

II. STANDARD OF REVIEW

Issues related to a defendant’s sentence are reviewed for reasonableness.

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). This

reasonableness determination takes the form of abuse of discretion review. Id.

There is a two-step process for this review: “first[,] ensure that the district court

committed no significant procedural error”; and second, “consider[] the

substantive reasonableness of the sentence imposed.” Id. (internal quotation

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marks omitted). In going through this two-step process, “a district court’s

interpretation or application of the Sentencing Guidelines is reviewed de novo,

and its factual findings are reviewed for clear error.” Id. (internal quotation

marks omitted). “A factual finding is not clearly erroneous if it is plausible in

light of the record read as a whole.” United States v. Villanueva, 408 F.3d 193,

203 (5th Cir. 2005).

III. DISCUSSION

A. Non-Application of the Minor Role Reduction

A district court may decrease a defendant’s offense level by two levels if it

finds that the defendant was a minor participant in the offense. U.S.S.G.

§ 3B1.2(b). The minor role reduction applies to a defendant “who is less culpable

than most other participants, but whose role could not be described as minimal.”

Id. at § 3B1.2, cmt. n.5. This reduction applies only “when a defendant is

substantially less culpable than the average participant.” Villanueva, 408 F.3d

at 204 (citation and internal quotation marks omitted). “It is not enough that

a defendant does less than other participants; in order to qualify as a minor

participant, a defendant must have been peripheral to the advancement of the

illicit activity.” Id. (internal quotation marks). “A defendant has the burden of

showing that he is entitled to the downward adjustment.” United States v.

Garcia, 242 F.3d 593, 597 (5th Cir. 2001).

Claiborne argues that he acted as a minor participant because (1) the CI

implicated only Weldon, (2) Weldon was driving the Impala on the day of their

arrest and the car belonged to him, and (3) the cocaine was found near the

driver’s rear tire, leading to the conclusion that Weldon—not

Claiborne—possessed the drugs prior to putting them under the tire. The facts

show that Claiborne admitted that he possessed the drugs with the intent to

distribute them “along with Mr. Weldon.” Both Claiborne and Weldon, upon

arriving at the H.E.B. parking lot, exited the Impala and looked around

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“suspiciously as if they were looking for someone.” These actions lead to the

conclusion that Claiborne was involved in the sale to the CI and not a mere

bystander or passenger. Additionally, detectives found cocaine residue on both

the driver’s and the passenger’s floorboards. Claiborne’s Blackberry contained

text messages that a detective believed involved drug transactions, and at the

time of his arrest, Claiborne had $1,232 in cash—despite his claim that he was

unemployed). Finally, the CI called the Motorola cell phone, which Claiborne

claimed was his, to arrange the crack purchase. Although Claiborne might have

been less culpable than Weldon, based on the foregoing facts, Claiborne’s

participation was not peripheral to the advancement of the illicit activity. See

Villanueva, 408 F.3d at 204. Because Claiborne was not substantially less

culpable than the average participant, the district court did not clearly err when

it denied him the minor role reduction under § 3B1.2(b). See id.

B. Application of the Obstruction of Justice Enhancement

A defendant is subject to a two-level increase in his offense level if he

“willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice.” U.S.S.G. § 3C1.1. This adjustment is warranted

where a defendant escaped or attempted to escape from custody. Id. at § 3C1.1,

cmt. n.4(E). Claiborne argues that the PSR demonstrates that Weldon, not

Claiborne, attempted to escape. He notes that Weldon unbuckled their seatbelts

and that Claiborne did not assist, speak to, or communicate with Weldon, except

when Claiborne replied that he had heard Weldon’s plan to escape.

Claiborne, however, failed to object to the application of the two-level

enhancement for obstruction of justice at the district court. This failure to object

below forecloses our review because “[a] district court’s determination that a

defendant has obstructed justice is a factual finding,” United States v. Cisneros,

112 F.3d 1272, 1279 (5th Cir. 1997), and “[q]uestions of fact capable of resolution

by the district court upon proper objection at sentencing can never constitute

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plain error,” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991) (per curiam)

(citing United States v. Mourning, 914 F.2d 699, 703 (5th Cir. 1990)).

IV. CONCLUSION

For the foregoing reasons, we AFFIRM Claiborne’s sentence.

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EDITH H. JONES, Chief Judge, concurring:

I concur in the per curiam opinion, which faithfully follows our twenty

year old precedent establishing that findings of fact by a district court are not

subject to reversal for "plain error." United States v. Lopez, 923 F.2d 47 (5th Cir.

1991), cert. denied, 500 U.S. 924, 111 S. Ct. 2032 (1991). But I am also

constrained to respond to Judge Prado's challenge to this precedent. For the

sake of brevity, I do so in short points.

First, plain error is by definition error so clear and obvious that the

district court should not have erred in the first place. United States v. Olano,

507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993). As the factfinder in sentencing,

the district court is not bound by the rules of evidence, and its findings are

shielded by the clear error standard even when an appellant preserves error for

appeal. Because so many sentencing findings amount to judgment calls, based

in part on the trial court's intimate knowledge of local probation and law

enforcement practices, it seems nearly inconceivable that we could deem their

factual findings "plainly erroneous" under the Olano definition. Further, to

allow appellate second-guessing when no factual error was pointed out below

erodes the distinction between plain error and clear error.

Second, restricting plain error review to issues of law is hardly unfair to

defendants. Under current sentencing procedures, each defendant and his

attorney has ample advance access to the PSR. They can respond directly to the

facts identified as pertinent in the PSR, subject, of course, to rebuttal by the

probation officer and the government. They are well aware of the district court's

fact finding duties and have the opportunity to prepare and persuade the district

court of their view of the facts. We ought to assume that counsel will have

conferred with the client about the facts concerning sentencing. It seems highly

unlikely that a competent counsel will fail to timely raise a factual objection to

an enhancement in the district court.

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Third, this court has, far more often than not, followed Lopez. See, e.g.,

United States v. Conn, 657 F.3d 280, 284 (5th Cir. 2011) (citing Lopez, 923 F.2d

at 50), and legions of unpublished Fifth Circuit decisions.1 That a few opinions

of this court fail to follow Lopez in the past twenty years says less about our

established court precedent than it does about the potential for error in the

increasingly complex law of federal sentencing.

Fourth, this case illustrates why we should not be in the business of

reviewing factfindings on appeal. The evidence relating to the foiled attempt to

escape from the patrol car is a videotape in which most of the action, admittedly,

is committed by Claiborne's co-defendant. The sequence of events was equally

obvious to Claiborne and his counsel as to the trial court, yet the defendant

failed to point out his alleged passivity to the district court. From what superior

vantage point can we say there is "no evidence" to support the enhancement,

when in fact Claiborne's seatbelt was found undone by the officers, and on the

videotape he responds "um-hmm" to an escape query from the other defendant?

The district court might have looked at this video more carefully if Claiborne had

raised the issue; had it done so, we would have no real basis to declare a fact

finding either way — supporting or rejecting an obstruction enhancement —

clear error. To apply "plain error" here would amount to our simply replacing

the factfinder's function with a de novo interpretation of the evidence.

Finally, the fulcrum of the desire to employ plain error review to

sentencing fact issues is the potential impact on the defendant's sentence if the

1

The majority of the recent unpublished opinions follow Lopez. See United States v.

Aguirre, No. 10-51167, 2012 WL 11046 *2 (5th Cir. Jan. 4, 2012); United States v. Marquez-

Murillo, No. 11-50281, 2011 WL 6934419 *1 (5th Cir. Dec. 30, 2011); United States v. Castillo,

445 Fed. Appx. 784, 784-85 (5th Cir. 2011); United States v. Salizar-Pro, 442 Fed. Appx. 908,

910 (5th Cir. 2011); United States v. Miller, 450 Fed. Appx. 336, 338-39 (5th Cir. 2011); United

States v. Candrick, 435 Fed. Appx. 404, 406 (5th Cir. 2011); United States v. Zamora-Melgoza,

396 Fed. Appx. 121, 122 (5th Cir. 2010); United States v. Mendoza, 395 Fed. Appx. 144, 145

(5th Cir. 2010).

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guidelines are misapplied. But the defendant's term of imprisonment is not the

only consideration relevant to the standard of review. I have already explained

why appellate courts are singularly ill-suited to reviewing unobjected-to facts

pertinent to sentencing. It is also important that the public, represented by the

government, be apprised of potential sentencing defects at the trial level, in

order to save resources and utilize law enforcement capabilities efficiently.

Every resentencing compelled following plain error review imposes costs and

dangers when a defendant is remitted from prison back (perhaps hundreds of

miles) to the sentencing court. Arguably, district courts spend more time trying

to foresee and prevent reversal based on the errors not pointed out to them. In

any event, they are blindsided and their schedules adversely affected by the

disorderliness of allowing criminal defendants to prevail on issues raised for the

first time on appeal. The balance of hardships is shared among the defendant,

the public and the courts, it seems to me, when the proper sentencing objections

are not raised in the trial court.

Because I contend that plain error review should not be applied to this

purely factual determination of obstruction of justice, I need only add that I

would be strongly disinclined to find plain error if we did use that standard.

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EDWARD C. PRADO, Circuit Judge, concurring:

I write separately to discuss the court’s review (or rather, the lack thereof)

of Claiborne’s claim that the district court erred in applying the obstruction of

justice enhancement under U.S.S.G. § 3C1.1.

Generally, failure to object to an error at the district court limits this

court’s review to plain error. United States v. Villegas, 404 F.3d 355, 358 (5th

Cir. 2005) (per curiam); see also Fed. R. Crim. P. 52(b). This standard requires

that the defendant show (1) error, (2) that is clear or obvious, (3) and that affects

his substantial rights; (4) if the elements are satisfied, this court may exercise

its discretion to remedy the error if it seriously affects the fairness, integrity, or

public reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129,

135 (2009). In this case, the court declines to review Claiborne’s claimed error

as to the application of the obstruction of justice enhancement based on the rule

from United States v. Lopez, 923 F.2d 47 (5th Cir. 1991) (per curiam), that

“‘[q]uestions of fact1 capable of resolution by the district court upon proper

1

In her concurrence, Chief Judge Jones emphasizes the special role the sentencing

court plays in finding facts, a role which I do not challenge. It should be noted, however, that

the issue of whether the determination that § 3C1.1’s requirements are met is not so clearly

a question of fact. The court correctly, based on this circuit’s earliest-case controls rule, holds

that “‘[a] district court’s determination that a defendant has obstructed justice is a factual

finding.’” Per Curiam Op., supra, at 5 (quoting United States v. Cisneros, 112 F.3d 1272, 1279

(5th Cir. 1997)); cf. United States v. Paden, 908 F.2d 1229, 1236 (5th Cir. 1990) (“[T]he district

court’s determination [that a two-level enhancement under § 3C1.1] is subject to the ‘clearly

erroneous’ standard of review.”). However, there is an intra- and an inter-circuit split as to

whether a § 3C1.1 determination is to be reviewed as a question of fact or as a question of law.

Compare Cisneros, 112 F.3d at 1279 (question of fact) with United States v. Brown, 470 F.3d

1091, 1093–94 (5th Cir. 2006) (question of law: “For an obstruction-of-justice enhancement,

the district court’s factual findings—its findings as to what acts were performed—are reviewed

only for clear error. . . . A ruling that those findings permit an obstruction-of-justice

enhancement is a question of law, reviewed de novo.”); compare United States v. Mabie, 663

F.3d 322, 334 (8th Cir. 2011) (determination that the § 3C1.1 enhancement applies is a

question of law/reviewed de novo), United States v. Doe, 661 F.3d 550, 565 (11th Cir. 2011)

(same), United States v. Taylor, 637 F.3d 812, 817 (7th Cir. 2011); United States v. Cordova

Barajas, 360 F.3d 1037, 1043 (9th Cir. 2004), United States v. Villarman-Oviedo, 325 F.3d 1,

16 (1st Cir. 2003), United States v. Brown, 321 F.3d 347, 351 (2d Cir. 2003), and United States

v. Jones, 308 F.3d 425, 427 (4th Cir. 2002), with United States v. Jackson-Randolph, 282 F.3d

369, 390 (6th Cir. 2002) (question of fact reviewed for clear error); see also United States v.

Henry, 557 F.3d 642, 645 (reviewed for due deference); United States v. Bedford, 446 F.3d

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objection at sentencing can never constitute plain error.’” Per Curiam Op.,

supra, at 5–6 (quoting Lopez, 923 F.2d at 50) (footnote added). Yet, we have not

relied exclusively on this rule in reviewing unobjected-to applications of

Guidelines enhancements.

In United States v. Pattan, 931 F.2d 1035 (5th Cir. 1991), this court

addressed, in the context of the district court’s enhancement under § 3C1.1,

“whether, under the plain error standard, [it] should evaluate the adjustments

based solely on the factual findings actually made by the trial judge or whether

[it] should consider the entire record when [it] evaluate[s] the adjustments.” Id.

at 1042–43. It resolved that, “[g]iven the minimal nature of our review, we find

it appropriate to consider all of the evidence in the record supporting the

adjustments, and will uphold the adjustments if the record as a whole

demonstrates that the adjustments did not result in a miscarriage of justice.”

Id. at 1043. Plain error has previously been described by this court as “error so

obvious that our failure to notice it would seriously affect the fairness, integrity,

or public reputation of the judicial proceedings and result in a miscarriage of

justice.” United States v. Peltier, 505 F.3d 389, 391 n.3 (5th Cir. 2007)

(alteration and internal quotation marks omitted). My reading of Pattan is that

unobjected-to errors in the application of the Guidelines are to be reviewed

under the typical plain error standard of Rule 52(b).

Neither the rule from Lopez nor the plain error review suggested in

Pattan, however, has been consistently adhered to by our court; in fact, this

court has more often applied plain error analysis to review of an unobjected-to

1320, 1324 (10th Cir. 2006) (mixed question of law and fact that is reviewed for clear error).

As there is substantial authority that § 3C1.1 determinations are, at the very least, mixed

question of law and fact that are to be reviewed de novo, Chief Judge Jones overstates the

interference with district courts that our court would have by reviewing these types of

questions.

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enhancement under § 3C1.1.2 Compare United States v. Akinosho, 285 F. App’x

128, 130 (5th Cir. 2008) (applying Lopez) with United States v. Stevenson, 97 F.

App’x 468, 470 (5th Cir. 2004) (conducting a typical plain error analysis) and

United States v. Huerta, 182 F.3d 361, 366 (5th Cir. 1999) (same). Where, as

here, two lines of precedent conflict, our rule is to follow the earlier opinion.

United States v. Wheeler, 322 F.3d 823, 828 n.1 (5th Cir. 2003). Therefore,

because Lopez predates Pattan, the court is correct to apply Lopez and foreclose

review. Nonetheless, I believe the Lopez rule to be inferior and think that our

review of unobjected-to enhancement under the Guidelines ought to be for plain

error.

The Supreme Court has stated that “[a] rigid and undeviating judicially

declared practice under which courts of review would invariably and under all

circumstances decline to consider all questions which had not previously been

specifically urged would be out of harmony with . . . the rules of fundamental

justice.” United States v. Olano, 507 U.S. 725, 732 (1993) (alteration and ellipsis

in original) (internal quotation marks omitted). In so doing, it drew on its prior

opinion in Hormel v. Helvering, 312 U.S. 552 (1941).

Ordinarily an appellate court does not give consideration to issues

not raised below. For our procedural scheme contemplates that

parties shall come to issue in the trial forum vested with authority

to determine questions of fact. This is essential in order that parties

2

Chief Judge Jones states in her concurrence that “[t]he majority of the recent

unpublished opinions follow Lopez,” but she does not confine her universe to the specific

context of the obstruction of justice enhancement under § 3C1.1; she also includes a host of

other determinations made by district judges under the Guidelines. See Jones Op., supra, at

2 n.1. I am not suggesting that every determination made under the Guidelines needs to be

reviewed for plain error, but there is a distinction between “minor, detailed, [and] interstitial

question[s] of sentencing law,” which are given “due deference,” Buford v. United States, 532

U.S. 59, 64 (2001), and “interpretive question[s]” requiring application of the Guidelines such

as the enhancing a defendant’s sentence for obstructing justice or making a “downward

adjustment for acceptance of responsibility.” See United States v. McLaughlin, 378 F.3d 35,

38 n.1 (1st Cir. 2004); see also United States v. Vasquez, 389 F.3d 65, 73–75 (2d Cir. 2004).

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may have the opportunity to offer all the evidence they believe

relevant to the issues which the trial tribunal is alone competent to

decide; it is equally essential in order that litigants may not be

surprised on appeal by final decision there of issues upon which

they have had no opportunity to introduce evidence.

Hormel, 312 U.S. at 556. However, as the Court went on to say, “[r]ules of

practice and procedure are devised to promote the ends of justice, not to defeat

them.” Id. at 557. Continued adherence to the Lopez rule does just that. It

defeats the ends of justice by eschewing plain error’s balance of the competing

concerns that errors be pressed in the district court before being pursued here

and that our rules do not allow for miscarriages of justice.3 The Lopez rule

replaces this nice balance with a rigid rule that insulates from this court’s

review misapplication of sentencing enhancements.

Moreover, the Lopez rule puts us out of step with our sister circuits, as no

other circuit court adheres to the Lopez rule. Each of the other circuit courts has

articulated that unobjected-to Guideline enhancements are to be reviewed for

plain error.4 In United States v. Montgomery, 379 F. App’x 527 (6th Cir. 2010),

the Sixth Circuit noted, “[s]everal circuits have held that ‘questions of fact

3

Proving plain error is no easy feat. As this court has previously stated, “[t]he burden

of showing plain error is a heavy one.” United States v. Andrews, 22 F.3d 1328, 1341 (5th Cir.

1994) (internal quotation marks omitted). It requires error that is “so obvious and substantial

that failure to notice and correct it would affect the fairness, integrity or public reputation of

judicial proceedings.” Lopez, 923 F.2d at 50. The “high bar” erected, United States v. Morin,

627 F.3d 985, 1000 (5th Cir. 2010) (internal quotation marks omitted), gives defendants great

incentive to raise error before the district court while allowing this court to step in and correct

those substantial errors that demand amelioration.

4

See, e.g., United States v. Sahakian, 446 F. App’x 861, 863 (9th Cir. 2011); United

States v. Jumah, 599 F.3d 799, 811 (7th Cir. 2010); United States v. Poe, 556 F.3d 1113, 1128

(10th Cir. 2009); United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006); United States v.

Villafane-Jimenez, 410 F.3d 74, 84 n.9 (1st Cir. 2005); United States v. Dixon, 360 F.3d 845,

847 (8th Cir. 2004); In re Sealed Case, 349 F.3d 685, 690 (D.C. Cir. 2003); United States v.

Brennan, 326 F.3d 176, 200 (3d Cir. 2003); United States v. Clark, 28 F. App’x 34, 37 (2d Cir.

2001); United States v. Wells, 163 F.3d 889, 900 (4th Cir. 1998); United States v. Barajas-

Nunez, 91 F.3d 826, 830 (6th Cir. 1996).

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capable of resolution by the district court upon proper objection at sentencing

can never constitute plain error.’” Id. at 530 (alteration omitted) (quoting Lopez,

923 F.2d at 50) (citing United States v. Bush, 405 F.3d 909, 922 (10th Cir. 2005);

United States v. Elion, 15 F. App’x 14, 16 (1st Cir. 2001); United States v. Alford,

25 F.3d 1041 (4th Cir 1994)). In Montgomery, the court chose not to “go that far”

and resolved the case on plain error analysis. Montgomery, 379 F. App’x at 530.

Additionally, since Bush, Elion, and Alford, each of these circuits has used the

typical plain error review in analyzing unobjected-to enhancements under

§ 3C1.1. See United States v. Salazar, 446 F. App’x 110, 112 (10th Cir. 2011);

United States v. Shawakha, 410 F. App’x 658, 663–64 (4th Cir. 2011); United

States v. Villafane-Jimenez, 410 F.3d 74, 84 n.9 (1st Cir. 2005). It is clear then

that the courts that have dabbled with the Lopez rule, including our own, have

moved away from it.

Finally, this is not merely an esoteric argument about the role of this court

in reviewing sentencing decisions of the district courts or about the proper

balance between competing procedural concerns. Failure to review Claiborne’s

claim that the district court misapplied the obstruction of justice enhancement

will cost Claiborne months, if not years, of additional time in prison because in

my opinion, plain error exists on these facts.

The obstruction enhancement requires willful conduct on the part of the

defendant to whom it is applied. U.S.S.G. § 3C1.1. This court has previously

found such willful conduct where the defendant “actively participated” in the

escape attempt. See United States v. Cisneros, 112 F.3d 1272, 1280 (5th Cir.

1997).5 Given that Claiborne did not unbuckle his seatbelt, agree to help Weldon

5

See also United States v. Whorton, 79 F. App’x 1, at *1 (5th Cir. 2003) (per curiam)

(affirming the application of the obstruction enhancement where the defendant had scraped

mortar from the bricks near his bed and then covered the scraped area with toothpaste

because the defendant acted “voluntarily and intentionally” (internal quotation marks

omitted)); United States v. Barnum, 15 F.3d 181 (5th Cir. 1994) (per curiam) (affirming the

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No. 10-51189

escape, respond to his questions about escaping, or talk about escaping, there is

no evidence that Claiborne plotted an escape or aided and abetted Weldon in

doing so. Cf. Cisneros, 112 F.3d at 1279–80. Therefore, it was clear error for

the district court to have applied the obstruction enhancement to Claiborne.

This finding does not end the inquiry. Because Claiborne failed to object

to the obstruction enhancement’s application at the district court, he must show

a “reasonable probability that, but for the district court’s misapplication of the

Guidelines, [Claiborne] would have received a lesser sentence.” Villegas, 404

F.3d at 364. Absent the misapplication of the obstruction enhancement,

Claiborne’s total offense level would have been 25 and his Guidelines range

would have been 57 to 71 months. See U.S.S.G. ch. 5, pt. A. Although the

correct and incorrect Guidelines ranges overlap, Claiborne’s sentence was not in

the overlapping range. His 78-month term of imprisonment was seven months

greater than the maximum recommended sentence by the correct Guidelines

range.

The facts of this case lead me to conclude that there is a “reasonable

probability” that Claiborne would have received a lesser sentence absent the

district court’s misapplication of the obstruction enhancement. The district

court neither indicated that it would have imposed the same sentence as an

alternative sentence nor expressed an intent to go outside the Guidelines range.

Cf. United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008) (stating that when

the district court imposes a non-Guidelines sentence that does not directly result

from an error in calculating the Guidelines, a sentence may be affirmed). In fact,

application of the obstruction enhancement where shoes were delivered to the defendant while

he was in custody that contained hacksaw blades hidden in the soles because although the

defendant claimed no knowledge of the shoes, the evidence supported the logical and

reasonable inference that the defendant participated in a scheme to have the shoes containing

the blades delivered to him).

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No. 10-51189

the district court specifically denied the Government’s request for an

above-Guidelines sentence, stating that it was not departing from the Guidelines

because the range was “fair and reasonable.” Therefore, I would find the third

prong of plain error—effect on defendant’s substantial rights— met. See United

States v. Carrizales-Jaramillo, 303 F. App’x 215, 217 (5th Cir. 2008) (per curiam)

(finding reversible plain error where the incorrect Guidelines range (30–37

months) and correct Guidelines range (24–30 months) overlapped by one month

but the defendant’s sentence (31 months) was not within the correct Guidelines

range, and the district court did not indicate that it would have imposed the

same sentence or express an intent to sentence above the Guidelines range).

Finally, the sentencing error “seriously affected the fairness, integrity, or public

reputation of judicial proceedings” because it “clearly affected the [defendant’s]

sentence.” United States v. Gonzales, 484 F.3d 712, 716 (5th Cir. 2007)

(alteration and internal quotation marks omitted).

Although the court applies the correct rule under our earliest-case-controls

rule, the rule applied is a bad one and one that for Claiborne, results in a

miscarriage of justice.

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