holding that obstructive conduct must occur after an investigation has begun, and citing the Sentencing Commission’s statement that its amendments to § 3C1.1 were meant to clarify “the temporal element of the obstruction guideline (i.e., that the obstructive conduct must occur during the investigation, prosecution, or sentencing of the defendant’s offense of conviction),” Supplement to Appendix C, Amendment 581 (1998)
How later courts described this case
- holding that obstructive conduct must occur after an investigation has begun, and citing the Sentencing Commission’s statement that its amendments to § 3C1.1 were meant to clarify “the temporal element of the obstruction guideline (i.e., that the obstructive conduct must occur during the investigation, prosecution, or sentencing of the defendant’s offense of conviction),” Supplement to Appendix C, Amendment 581 (1998)
- holding that an Allen charge omitting the reasonable doubt standard was not prejudicial where a previously issued charge protected the jury’s understanding of reasonable doubt
- lawful restraint of victim by police is “aggravating factor that intensifies the wilfulness, the inexcusableness and reprehensibleness of the crime”
- ‘Whether examined under legal canons of statutory interpretation or plain English rules of syntax, the phrase ‘during the investigation’ should be read to modify the immediately preceding phrase, ‘administration of justice,’ not the more remote clause [‘the defendant willfully ... attempted to obstruct or impede’].”
Written by the judges who cited it.
The opinion
WIENER, Circuit Judge,
specially concurring.
I concur in the foregoing opinion, including its analysis of U.S.S.G. § 3C1.1 in sections IIIC and D and its conclusion that the sentence enhancement provisions of § 3C1.1 are inapplicable to obstructive conduct that occurs before the commencement of an investigation. Nevertheless, I write separately to express my consternation with what I perceive to be absurd results produced by that rule, for which perception the instant case could well be Exhibit I: A high ranking county law enforcement officer blatantly commits a federal crime in full view of several subordinate officers (who are presumably at-will employees) and immediately threatens them with loss of employment if they break the unwritten “code of silence” either by reporting the crime or responding truthfully to investigatory questions about the crime; yet because the perpetrator’s obstructive conduct at the scene of the crime of necessity predates the commencement of any investigation, his sentence is immune from enhancement for obstruction of justice.
I reluctantly agree that this result is mandated by the Sentencing Commission’s 1998 amendment of the commentary to § 3C1.1—specifically U.S.S.G. § 3C1.1, comment, (n.1) (1998)—and the explanation contained in U.S. Sentencing Guideline Manual, Supplement to Appendix C, Amendment 581 (1998) that “the obstructive conduct must occur during the investigation, prosecution, or sentencing of the defendant’s offensive conviction.” I just cannot fathom why that should be!
The plain language of § 3C1.1 clearly does not command such a bizarre result under any known rules of interpretation. Whether examined under legal canons of statutory interpretation or plain English rules of syntax, the phrase “during the investigation” should be read to modify the immediately preceding phrase, “administration of justice,” not the more remote clause (“the defendant willfully ... attempted to obstruct or impede”). When § 3C1.1 is given such a faithful reading, Clayton’s warning to his deputies immedi *357 ately after the completion of his criminal conduct was obviously and specifically intended to obstruct or impede the facet of the administration of justice that would take place during the investigation of his offense (and likely during prosecution and sentencing as well). Indeed, if the subject Guideline were meant to be applied as the Sentencing Commission now instructs through its 1998 amendments, why was it not originally written to read:
If the defendant, during the investigation, prosecution, or sentencing of the instant offense, willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice, increase the offense level by 2 levels.
Such a rearrangement of the various clauses and phrases of this directive would dispel any doubt and justify the inclusion of a “temporal element.” As it stands, though, the plain wording of the Guideline should make the enhancement applicable to Clayton. Still, I concede that the 1998 amendments condemn the actual language of § 3C1.1 to the dustbin of careless drafting (or careless reading) by construing that wording to inoculate the obstructer’s sentence from being enhanced when his obstructive conduct precedes the commencement of an investigation.
Inasmuch as I am aware of nothing in the legislative history of this Guideline that reflects an intent of Congress to exempt obstructive conduct like Clayton’s solely on the basis of timing vis-a-vis the commencement of an investigation, I urge that the Sentencing Commission, or the Congress itself, either fix the problem or explain this aberration for the benefit of sentencing courts and those of us who must review their work on appeal. Please enlighten us all: Is the panel’s analysis in the foregoing opinion simply wrong? If not, what policy dictates the Sentencing Commissions’s interpretation which, I submit, produces such an anomalous result?