United States v. Self ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4183
RANDY E. SELF,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CR-95-315-3)
Argued: October 28, 1997
Decided: December 31, 1997
Before WILKINS and MICHAEL, Circuit Judges, and
CAMPBELL, Senior Circuit Judge of the United States
Court of Appeals for the First Circuit, sitting by designation.
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Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Michael and Senior Judge Campbell joined.
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COUNSEL
ARGUED: James Mixon Griffin, GRIFFIN & LYDON, L.L.P.,
Columbia, South Carolina, for Appellant. Sean Kittrell, Assistant
United States Attorney, Charleston, South Carolina, for Appellee. ON
BRIEF: J. Rene Josey, United States Attorney, Charleston, South
Carolina, for Appellee.
_________________________________________________________________
OPINION
WILKINS, Circuit Judge:
Randy E. Self appeals the sentence imposed upon him by the dis-
trict court following his plea of guilty to being a felon in possession
of a firearm. See 18 U.S.C.A. § 922(g)(1) (West Supp. 1997). Self
principally contends that the district court erred in enhancing his
offense level by two levels pursuant to U.S. Sentencing Guidelines
Manual § 3C1.1 (1995) based on a finding that Self obstructed justice
by attempting to have witnesses murdered. We affirm.
I.
On the evening of October 10, 1994, two elderly sisters, Martha
and Cherry Coleman, were attacked by Self and his accomplice,
James Shoemake, in the sisters' Columbia, South Carolina home. Self
knocked on the door of the Coleman home and attempted to gain
entrance by misrepresenting his identity. When this attempt failed, the
two men forced their way into the home. Self pistol-whipped one of
the sisters with a 9mm semi-automatic pistol, demanded money, and
threatened to kill his victims. Self and Shoemake then fled in Self's
automobile after taking a small amount of cash. Within minutes, City
of Columbia Police Department officers apprehended them, having
been alerted by the sisters' neighbors. The officers recovered a 9mm
Ruger--which had been stolen by Self and Shoemake in a burglary
in the days prior to the robbery--on the floor of the passenger side
of the vehicle.
Following their arrest, Self and Shoemake were incarcerated in the
Richland County Detention Center. During the first few weeks of
their incarceration, Self attempted to solicit another inmate, Charles
Parker, who was due to be released soon thereafter, to murder the
Coleman sisters in return for $5,000 so that they would not be able
to testify. Shoemake and another inmate, Wesley Timberlake, over-
heard this conversation. Also during his incarceration, Self used the
telephone to make numerous obscene and threatening calls to various
individuals.
2
Thereafter, Self pled guilty in district court to violating 18
U.S.C.A. § 922(g)(1) in connection with his possession of the 9mm
Ruger recovered during his arrest. The presentence report recom-
mended a base offense level of 24 because Self had at least two prior
felony convictions for crimes of violence or controlled substance
offenses. See U.S.S.G. § 2K2.1(a)(2). This offense level was
increased by two levels because the firearm was stolen, see U.S.S.G.
§ 2K2.1(b)(4), and by four levels because the firearm was possessed
in connection with another felony, see U.S.S.G. § 2K2.1(b)(5). The
report also recommended that the offense level be increased by two
levels because the victims were unusually vulnerable, see U.S.S.G.
§ 3A1.1(b), and by two levels because the victims were physically
restrained, see U.S.S.G. § 3A1.3. Finally, a two-level enhancement
was recommended for obstruction of justice based upon Self's
attempt to have the Coleman sisters murdered so that they could not
testify against him. See U.S.S.G. § 3C1.1. These enhancements
resulted in an adjusted offense level of 36 and, when combined with
Self's Criminal History Category VI, resulted in a guideline range of
324-405 months imprisonment.
Self made numerous objections to the presentence report. Of partic-
ular significance here, Self objected to the § 3C1.1 enhancement for
obstruction of justice, denying that he actually solicited the murder of
the Coleman sisters and contending that even if he had, such conduct
would not provide an adequate basis for the enhancement. During the
sentencing hearing, Shoemake and Timberlake testified that they
overheard Self solicit Parker to murder the Coleman sisters. In addi-
tion, an affidavit submitted by Parker that was consistent with the
other testimony was introduced. Based on this evidence, the district
court found that Self had attempted to obstruct justice by trying to
hire Parker to kill witnesses. Rejecting Self's objections to the presen-
tence report and the Government's request for an upward departure
based on the inadequacy of Self's criminal history score, see U.S.S.G.
§ 4A1.3, the district court sentenced Self to 405 months imprison-
ment.
II.
Section 3C1.1 provides for a two-level increase in offense level
"[i]f the defendant willfully obstructed or impeded, or attempted to
3
obstruct or impede, the administration of justice during the investiga-
tion, prosecution, or sentencing of the instant offense." U.S.S.G.
§ 3C1.1. Application note three to § 3C1.1 provides a nonexhaustive
compendium of the type of conduct that qualifies for this enhance-
ment, which includes "threatening, intimidating, or otherwise unlaw-
fully influencing a ... witness ... or attempting to do so" and
committing "conduct prohibited by 18 U.S.C. §§ 1501-16." U.S.S.G.
§ 3C1.1, comment. (n.3(a), (i)).
Self first contends that the finding of the district court that he
attempted to have the Coleman sisters murdered is clearly erroneous,
arguing that the testimony supporting the finding was incredible. See
United States v. Murray, 65 F.3d 1161, 1165 (4th Cir. 1995) (recog-
nizing that determination by the district court that a defendant
engaged in conduct that obstructed justice is a finding of fact subject
to clearly erroneous standard of review); United States v. Puckett, 61
F.3d 1092, 1095 (4th Cir. 1995) (same). We disagree. Two witnesses
testified during the sentencing hearing that they overheard Self solicit
Parker to murder the Coleman sisters, and a consistent affidavit sub-
mitted by Parker was presented. The district court considered the pos-
sible motives of these witnesses to fabricate their testimony, yet found
the witnesses to be credible. On this record, the finding of the district
court that Self attempted to have the Coleman sisters murdered is not
clearly erroneous. See Puckett, 61 F.3d at 1095 (holding that resolu-
tion of factual dispute based on credibility of witnesses is not clearly
erroneous); United States v. Uwaeme, 975 F.2d 1016, 1018 (4th Cir.
1992) (explaining that this court "must give due regard to the opportu-
nity of the district court to judge the credibility of the witnesses, and
shall accept the findings of fact of the district court unless they are
clearly erroneous" (internal quotation marks omitted)); see also 18
U.S.C.A. § 3742(e) (West Supp. 1997).
Self next maintains that assuming he actually attempted to have the
Coleman sisters murdered so that they could not testify against him,
that conduct cannot form the basis for a § 3C1.1 enhancement. Self
recognizes that attempting to have a witness killed easily falls within
the type of conduct that constitutes an obstruction of justice.1 But, he
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1 18 U.S.C.A. § 1512(a) (West Supp. 1997) specifically prohibits "at-
tempts to kill another person, with intent to ... prevent the attendance or
testimony of any person in an official proceeding."
4
asserts that his attempt to have the Coleman sisters killed does not sat-
isfy the requirement of the guideline that the conduct occur "during
the investigation ... of the instant offense." U.S.S.G. § 3C1.1. Self cor-
rectly observes that pursuant to § 3C1.1, because obstructionist con-
duct must occur "during" the investigation, prosecution, or
sentencing, such conduct occurring before any investigation begins is
not encompassed within the guideline. See United States v. Gacnik,
50 F.3d 848, 852 (10th Cir. 1995); United States v. Kirkland, 985
F.2d 535, 537-38 (11th Cir. 1993); United States v. Luna, 909 F.2d
119, 120 (5th Cir. 1990) (per curiam); see also United States v.
Emery, 991 F.2d 907, 912 n.6 (1st Cir. 1993) (recognizing that "the
text of [§ 3C1.1], on its face, seems to require that some investigation
be underway"). But see United States v. Barry , 938 F.2d 1327, 1333-
35 (D.C. Cir. 1991). Self also contends that the term "instant offense"
refers merely to the offense of conviction. And, finally, he maintains
that the investigation by federal officers into possible federal firearms
charges did not begin until after he solicited the murders. From these
premises, Self contends that because the offense of conviction was a
§ 922(g)(1) violation--i.e., a federal firearms offense--the solicita-
tion of the murder of the Coleman sisters could not have occurred
"during the investigation ... of the instant offense" because the investi-
gation into that charge had not yet begun. We reject Self's analysis.
As an initial matter, it is by no means clear that the factual predi-
cate upon which Self's argument is based--that federal officials had
not begun an investigation when he attempted to have the Coleman
sisters killed--is correct. The district court did not resolve this factual
issue, and the record is unclear concerning whether a federal investi-
gation had begun at the time. The Government argues that on October
11, the day after Self was arrested, a state officer assigned to a joint
federal-state violent crime task force began an investigation into the
incident and that an agent of the United States Bureau of Alcohol,
Tobacco, and Firearms worked with the state agent that day. The
Government also contends that the federal investigation began no
later than October 20 and that because Parker indicated that the solici-
tation occurred in early to mid-October, it is unclear when the
obstructionist conduct actually occurred in relation to the commence-
ment of the investigation. If a resolution of this issue were critical to
the outcome of this appeal, we would be required to remand this mat-
ter to the district court to make an additional factual finding. We con-
5
clude, however, that a determination of this factual question is
irrelevant for the reasons set forth below.
Section 3C1.1 draws no distinction between a federal investigation
and a state investigation. It merely requires that the conduct occur
during the investigation of "the instant offense." U.S.S.G. § 3C1.1.
The failure of the guideline to distinguish between an investigation by
federal officials as opposed to state officials undoubtedly is founded
in a recognition that state officers are authorized to and frequently do
investigate criminal conduct that ultimately is prosecuted under fed-
eral law. Indeed, in the initial stages of a criminal investigation, it
may be anything but clear whether the conduct being investigated vio-
lates state law, federal law, or both. Accordingly, the appropriate
focus of inquiry is not whether federal officials had begun involve-
ment with the investigation, but whether the investigation was for "the
instant offense."2 Thus, we turn to address the meaning of that term.
The term "offense" is defined in the guidelines to mean "the
offense of conviction and all relevant conduct under§ 1B1.3 (Rele-
vant Conduct) unless a different meaning is specified or is otherwise
clear from the context." U.S.S.G. § 1B1.1, comment. (n.1(l)). And,
§ 1B1.3(a)(1) includes as relevant conduct:
(A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or will-
fully caused by the defendant; and
(B) in the case of jointly undertaken criminal activity ... all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity,
that occurred during the commission of the offense of con-
viction, in preparation for that offense, or in the course of
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2 This conclusion accords with that of the other courts of appeals that
have addressed this issue. See United States v. Smart, 41 F.3d 263, 265-
66 (6th Cir. 1994) (per curiam); United States v. Adediran, 26 F.3d 61,
64-65 (8th Cir. 1994); United States v. Emery , 991 F.2d 907, 911-12 (1st
Cir. 1993); United States v. Lato, 934 F.2d 1080, 1082-83 (9th Cir.
1991).
6
attempting to avoid detection or responsibility for that
offense.
U.S.S.G. § 1B1.3(a)(1). As a general matter, then, the term "offense"
refers to the offense of conviction including relevant conduct within
the meaning of § 1B1.3; however, if a defendant obstructs the investi-
gation only of another individual's offense or an offense committed
by the defendant that is neither the offense of conviction nor relevant
conduct to the offense of conviction, the enhancement would not
apply. See United States v. Gacnik, 50 F.3d 848, 852-53 (10th Cir.
1993); United States v. Bagwell, 30 F.3d 1454, 1458-59 (11th Cir.
1994); United States v. Yates, 973 F.2d 1, 4-5 (1st Cir. 1992). But see
United States v. Kirk, 70 F.3d 791, 797-98 (5th Cir. 1995) (stating
that "[a]lthough [§ 3C1.1] clearly contemplates a relationship between
the information concealed and the offense conduct, it does not require
that it be related directly to a particular offense to which the defendant
pleads guilty" and upholding an obstruction enhancement when the
conduct impeded the investigation of offenses with which the defen-
dant was charged but which were neither the offense of conviction
nor relevant conduct of that offense).
Self, however, contends that the guideline definition of "offense"
and § 1B1.3 leave open the possibility that the definition of the term
"offense" may be narrower if so specified in the applicable guideline
and that the modifier "instant" in § 3C1.1 operates as such a limita-
tion. Under Self's reading of the guideline, the term "instant offense"
means the offense of conviction without relevant conduct. See United
States v. Perdomo, 927 F.2d 111, 117-18 (2d Cir. 1991) (holding that
the term "instant offense" means offense of conviction without rele-
vant conduct); United States v. Dortch, 923 F.2d 629, 632 (8th Cir.
1991) (stating that "the term `instant offense' refers to the offense of
conviction" and reversing an enhancement based on conduct commit-
ted during the course of relevant conduct); see also United States v.
Woods, 24 F.3d 514, 516-17 (3d Cir. 1994) (explaining that § 3C1.1
"adjustment applies only when the defendant has made efforts to
obstruct the investigation, prosecution, or sentencing of the offense of
conviction").
An amendment to the guidelines that became effective November
1, 1997 makes clear that Self's reading of the term"instant offense"
7
is mistaken. See United States v. Capers, 61 F.3d 1100, 1109 (4th Cir.
1995) (explaining that an amendment that merely clarifies the opera-
tion of an existing guideline, rather than introduces substantive
changes, may be applied retroactively). The amendment modified
U.S.S.G. § 1B1.1 to illuminate the meaning of the term "instant
offense" and provides that "[t]he term`instant' is used in connection
with `offense,' `federal offense,' or `offense of conviction,' as the
case may be, to distinguish the violation for which the defendant is
being sentenced from a prior or subsequent offense, or from an
offense before another court." U.S.S.G. § 1B1.1, comment. (n.1(l))
(1997). This clarifying definition makes crystalline that the term "in-
stant" is added to the term "offense" to distinguish the offense of con-
viction from other offenses that are not before the court; it is not
intended to negate the application of relevant conduct principles in
determining the scope of the guideline. Thus, the Sentencing Com-
mission has made plain that by adding the modifier"instant" in
§ 3C1.1, it did not intend to exclude the relevant conduct of
§ 1B1.3(a)(1) in assessing whether a defendant's obstructionist con-
duct satisfies that section. Consequently, we hold that the term "in-
stant offense" in § 3C1.1 refers to the offense of conviction including
relevant conduct.
Here, it is clear that when Self solicited the murder of the Coleman
sisters, there was an ongoing criminal investigation. Obviously, that
investigation included the robbery and assault of the Coleman sisters.
And, as such, the solicitation of the murders occurred during the
investigation of the instant offense within the meaning of § 3C1.1
because it took place during the investigation of the robbery and
assault, which are relevant conduct for the offense of conviction, a
violation of § 922(g)(1).3 Furthermore, it is not disputed that the cir-
cumstances surrounding Self's possession of the 9mm Ruger were
being investigated by state officials when Self solicited the murders;
therefore, even though federal officials may not have been involved
in the investigation at that time, the offense of conviction nevertheless
was being investigated. Accordingly, we conclude that the district
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3 The robbery and assault are part of the relevant conduct of the
§ 922(g)(1) offense because they were "committed ... by the defendant ...
during the commission of the offense of conviction." U.S.S.G.
§ 1B1.3(a)(1).
8
court did not err in enhancing Self's offense level by two levels for
his obstruction of justice by attempting to have the Coleman sisters
murdered.
III.
For the foregoing reasons,4 we affirm the sentence imposed by the
district court.
AFFIRMED
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4 We have carefully considered Self's other allegations of error and
find them to be without merit.
9