United States v. Davis ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-4014
ARNELL DION DAVIS, a/k/a Flip,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Jerome B. Friedman, District Judge.
(CR-03-58)
Argued: June 4, 2004
Decided: August 17, 2004
Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Wilkinson joined. Judge Michael wrote an opinion con-
curring in part and dissenting from Part II.A.2.
COUNSEL
ARGUED: Timothy Vitow Anderson, Chesapeake, Virginia, for
Appellant. Sherrie Scott Capotosto, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Vir-
ginia, for Appellee. ON BRIEF: Paul J. McNulty, United States
Attorney, Michael J. Elston, Assistant United States Attorney, Alex-
andria, Virginia, for Appellee.
2 UNITED STATES v. DAVIS
OPINION
LUTTIG, Circuit Judge:
Appellant, Arnell Davis, was charged with suborning perjury,
obstruction of justice, and related charges stemming from his attempts
to persuade a witness to testify falsely in his favor at his earlier trial
on federal drug and gun possession charges. Due to his deception,
Davis was acquitted of all but a minor drug charge at his first trial.
In the trial below, however, he was convicted of the instant charges,
and sentenced to 62 months imprisonment. Davis appeals from that
judgment, claiming, most significantly, that the district court erred by
granting the government’s motion for a six-level upward departure
based on U.S. Sentencing Commission, Guidelines Manual ("USSG")
§ 5K2.9, p.s. ("Criminal Purpose") (2003).1 For the following reasons,
we now affirm.
I.
A.
When Davis was arrested for speeding in Suffolk, Virginia, in July
2001, police officers recovered a loaded 9mm pistol from the car’s
dashboard, and found almost two pounds of marijuana in a backpack
behind the passenger seat. Davis, the car’s lone occupant, was
charged with possession with intent to distribute marijuana in viola-
tion of 21 U.S.C. § 841; carrying a firearm during and in relation to
a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and pos-
session of a firearm by a drug user, in violation of 18 U.S.C.
§ 922(g)(3). He was tried on these counts before a federal jury but,
except for a simple possession of marijuana conviction, was acquitted
on all counts.
Subsequently, however, the government discovered evidence that
Davis had convinced his ex-girlfriend, Sophia White, to testify falsely
at trial that the marijuana actually was hers and, unbeknownst to
1
All citations to "USSG" in this opinion refer to the 2003 guidelines
manual.
UNITED STATES v. DAVIS 3
Davis, she was holding it for someone else. In May 2003, a second
grand jury returned a four-count indictment charging Davis with con-
spiracy to commit perjury and obstruction of justice, in violation of
18 U.S.C. § 371; witness tampering, in violation of 18 U.S.C.
§ 1512(b)(1); subornation of perjury, in violation of 18 U.S.C.
§ 1622; and obstruction of justice, in violation of 18 U.S.C. § 1503,
and Davis was tried again on each of these different counts.
In that second trial, which led to the convictions and sentence from
which Davis now appeals, the prosecution primarily relied on White’s
testimony, in which she explained how she had perjured herself dur-
ing Davis’ first trial by stating that the marijuana was hers. White’s
testimony was corroborated by a series of letters that Davis wrote to
White when he was in prison awaiting his first trial. After hearing this
evidence, the second jury convicted Davis on all counts. A presen-
tence report was prepared that placed Davis (for reasons explained in
more detail below) in Criminal History Category I with an adjusted
offense level of 19, resulting in a sentencing range of 30-37 months.
The parties agreed, however, that if Davis had been convicted at his
first trial his sentence would have been 60-66 months, given that the
section 924(c) charge, of which Davis was acquitted after White’s
perjured testimony, carried a mandatory minimum sentence of 60
months. See United States v. Davis, 293 F. Supp. 2d 652, 655 (E.D.
Va. 2003). The government moved for an upward departure to
address the disparity between the ranges.
The district court granted the government’s motion, reasoning that
an upward departure was justified because the guideline range did not
adequately reflect the gravity of Davis’ criminal conduct "due to the
unique circumstances of this case." Davis, 293 F. Supp. 2d at 656.
The court upwardly departed six levels to level 25 and sentenced
Davis, within the new sentencing range, to 62 months in prison.
II.
On appeal, Davis argues, first, that the evidence presented at his
second trial was insufficient to support at least two of his convictions
and, second, that the district court erred in granting the government’s
motion for an upward departure. Because, however, the latter claim
is by far the more substantial one, we address that claim first.
4 UNITED STATES v. DAVIS
A.
Pursuant to 18 U.S.C. § 3742, as recently amended by the PRO-
TECT Act,2 we no longer apply a unitary abuse-of-discretion standard
when reviewing departure decisions, but instead review "certain
departure decisions," including "the ultimate decision to depart," "de
novo." See United States v. Stockton, 349 F.3d 755, 764 & n.4 (4th
Cir. 2003) (also concluding that this change to the standard of review
did not raise Ex Post Facto Clause concerns), cert. denied, 124 S. Ct.
1695 (2004); see also United States v. Riggs, ___ F.3d ___, 2004 WL
1208927, *2 & n.1 (4th Cir. June 3, 2004). Nevertheless, these
amendments do not disturb our preexisting standards of review for
factual determinations made during sentencing, nor for the degree of
the departure.3 See also United States v. Thurston, 358 F.3d 51, 70-71
(1st Cir. 2004) (While appellate review of whether a departure deci-
sion was justified under the guidelines is now de novo, "the extent of
the departure granted by the district court is reviewed deferentially,
just as it was prior to the PROTECT Act."). Consequently, we review
the district court’s factual findings regarding its departure for clear
error, see Stockton, 349 F.3d at 764 (citing United States v. Rybicki,
96 F.3d 754, 757-58 (4th Cir. 1996)), and the reasonableness of the
extent to which the district court upwardly departed for abuse of dis-
cretion, see United States v. Gary, 18 F.3d 1123, 1127 (4th Cir.
1994).
2
Prosecutorial Remedies and Tools Against the Exploitation of Chil-
dren Today Act of 2003, Pub. L. No. 108-21, § 401(d), 117 Stat. 650,
670 (2003) (amending 18 U.S.C. § 3742(e), (e)(3)).
3
See 18 U.S.C.A. § 3742(e), (e)(B)(i)-(iii) (West Supp. 2004) (provid-
ing that the court of appeals shall determine, de novo, whether a depar-
ture was "based on a factor that": "does not advance the objectives set
forth in section 3553(a)(2)"; "is not authorized under [18 U.S.C. §]
3553(b)"; or "is not justified by the facts of the case); § 3742(e), (e)(C)
(providing that the court of appeals "shall accept the findings of fact of
the district court unless they are clearly erroneous" and, in determining
whether "the sentence departs to an unreasonable degree from the appli-
cable guidelines range," "shall give due deference to the district court’s
application of the guidelines to the facts" in view of the factors set forth
in section 3553(a) and the district court’s statement of "the reasons for
[its] imposition of the particular sentence").
UNITED STATES v. DAVIS 5
The offense guidelines applied by the presentence report to Davis’
four counts of conviction were USSG §§ 2J1.2 and 2J1.3
("Obstruction of Justice" and "Perjury or Subornation of Perjury,"
respectively). Taken together, these sections direct the sentencing
court to apply USSG § 2X3.1 ("Accessory After the Fact") to an
underlying criminal offense "[i]f the offense involved obstructing the
investigation or prosecution of [the underlying] criminal offense" or
"if the offense involved perjury, subornation of perjury, or witness
bribery in respect to [the underlying] criminal offense," so long as
"the resulting offense level [from either cross reference] is greater
than that determined [by applying sections 2J1.1 or 2J1.2]." See
USSG §§ 2J1.2(c)(1), 2J1.3(c)(1). Section 2X3.1, in turn, calculates
its base offense level from the "offense level" specified in the guide-
lines for the underlying criminal offense that the defendant’s offenses
of conviction for subornation and obstruction of justice attempted to
conceal. That is, except at the extremes or in other circumstances not
relevant here, the base offense level for section 2X3.1 is computed by
subtracting six levels from the offense level for the underlying
offense. See USSG § 2X3.1. This method presented no problem for
Davis’ drug trafficking offense (which has an offense level of eight,
based on the amount of marijuana found). But Davis’ gun charge was
based on 18 U.S.C. § 924(c), which has an offense guideline (section
2K2.4) but has not been assigned an "offense level."4
Thus, section 2X3.1, which would normally produce a heightened
sentence for an offender in similar circumstances, could not be
applied to Davis’ section 924(c) offense. Using only the offense level
for the marijuana charge, the resulting offense level under 2X3.1
would be significantly lower than that obtained by straight application
of sections 2J1.2 and 2J1.3, so the defendant’s sentence was calcu-
lated with respect to those sections only — producing the 30-37
4
We doubt that this omission was accidental. More likely, the Com-
mission just thought that including an offense level for section 924(c)
was unnecessary, given that under section 2K2.4(b) section 924(c)’s
mandatory minimum sentence is the "sentencing range" for that offense.
While the offense level is generally crucial in calculating the sentence for
a given offense, that level is much less relevant for those offenses for
which the sentencing range is created by statute, and to which the typical
reductions or adjustments allowed by the guidelines do not apply.
6 UNITED STATES v. DAVIS
month guideline range. See Davis, 293 F. Supp. 2d at 655. Notably,
however, the presentence report mentioned section 5K2.9 as a factor
that, if proven, could warrant an upward departure.
Davis makes several arguments in support of his ultimate claim
that the upward departure was error. His contentions, grouped
broadly, require us to resolve at least two questions: first, whether the
district court’s identified basis for departure was a permissible one
under the facts of the case, and second, whether the extent of the
departure made by the district court was reasonable. See United States
v. Lawrence, 349 F.3d 724, 726 (4th Cir. 2003). Under the standard
of review set forth above, we review the first question de novo, and
the second for abuse of discretion.
1.
By statute, an upward departure is only justified if "the court finds
that there exists an aggravating . . . circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
[higher] sentence." 18 U.S.C. § 3553(b) (2000); see also USSG
§ 5K2.0, p.s. (implementing and elaborating on section 3553(b)). In
Koon v. United States, 518 U.S. 81 (1996), the Supreme Court inter-
preted the relevant departure provisions and delineated three catego-
ries of departures based on permissible factors (i.e., those that are not
explicitly forbidden):
(1) departures based on an encouraged factor [not taken into
account by the applicable guideline]; (2) departures based
on a discouraged factor, or an encouraged factor already
taken into account in the applicable guideline range; and (3)
departures based on factors not mentioned in the Sentencing
Guidelines.
Davis, 293 F. Supp. 2d at 654; see also Koon, 518 U.S. at 96. The
district court concluded that an upward departure was proper under all
three categories — under the "Criminal Purpose" ground of departure,
section 5K2.9, for the first two, and under section 5K2.0’s provisions
regarding departures based on unmentioned factors, for the third.
Because we conclude that section 5K2.9 is a permissible basis for the
UNITED STATES v. DAVIS 7
instant departure, we do not consider whether any unmentioned fac-
tors also would be sufficient.
Section 5K2.9 authorizes an upward departure "[i]f the defendant
committed the offense in order to facilitate or conceal the commission
of another offense [here, the unaccounted-for underlying gun posses-
sion offense]." USSG § 5K2.9, p.s. Where that factor is present, "the
court may increase the sentence above the guideline range to reflect
the actual seriousness of the defendant’s conduct." Id. Thus, section
5K2.9 clearly is an "encouraged" basis for departure. See United
States v. Barber, 119 F.3d 276, 280 (4th Cir. 1997) (en banc) (factors
that "the Commission has indicated . . . may provide an appropriate
basis for departure" are "considered to be ‘encouraged factors’").
The next question is whether that encouraged factor is accounted
for in the "applicable guideline" here — section 2X3.1, as applied on
a cross-reference from sections 2J1.2 or 2J1.3. We believe that it is.
Section 2X3.1 will be cross-referenced from sections 2J1.2 or 2J1.3
whenever offenses of conviction covered by those guidelines were
committed "to facilitate or conceal" an underlying criminal offense.
See §§ 2J1.2(c)(1), 2J1.3(c)(1). Then, as noted above, the base offense
level for section 2X3.1 as cross-referenced will be based on the
offense level for that same underlying offense. And finally, as with
departures under section 5K2.9, which are authorized "to reflect the
actual seriousness of the defendant’s conduct," the purpose of cross-
referencing section 2X3.1 in cases like this one is to "provide an
enhanced offense level when the obstruction is in respect to a particu-
larly serious offense." USSG § 2J1.2, cmt. background (emphases
added). Thus, that cross-reference to section 2X3.1 generally accounts
for the encouraged factor of section 5K2.9. See Barber, 119 F.3d at280-81 & n.3 (explaining that one way that an applicable guideline
may be considered to "take[ ] [a] factor into account . . . [is] by adjust-
ment to the base offense level through a specific offense characteris-
tic" similar to that relied on by the encouraged factor). Category one
of Koon is inapplicable here.
An upward departure in this case is, however, justified under cate-
gory two of Koon. As noted above, even though section 2X3.1 gener-
ally accounts for the encouraged factor of section 5K2.9, a departure
under the section 5K2.9 may still be warranted if "that factor is pres-
8 UNITED STATES v. DAVIS
ent to such an exceptional or extraordinary degree that it is outside the
heartland of situations encompassed within the applicable guideline."
Barber, 119 F.3d at 280. And if the "set of typical cases embodying
the conduct that [section 2X3.1 as cross-referenced here] describes"
— its "heartland" — encompasses anything, it encompasses those
cases in which the underlying offense for 2X3.1 purposes has an
offense level. See Koon, 518 U.S. at 93. Section 924(c) has no offense
level, however, nor do the guidelines provide a clear method for cal-
culating its offense level.5 In contrast, because the vast majority of
federal crimes are provided an offense level (or a method of calculat-
ing one) by the guidelines, section 2X3.1’s application will not be
hindered in the slightest when those crimes are the underlying offense
for that section.
Under category two of Koon, the district court’s task (and ours on
de novo review) was to "determine not as a general matter whether
a suggested basis for departure is within the heartland, but whether it
is within the heartland given the specific facts of the particular case."
United States v. Hairston, 96 F.3d 102, 106 (4th Cir. 1996) (emphases
added). Because commission of Davis’ offenses of commission to
conceal a section 924(c) offense — the specific facts of this case —
satisfies the encouraged factor of section 5K2.9, but is not accounted
for, at all, by the applicable guideline, section 2X3.1, this case’s facts
are outside of that guideline’s heartland.6
(Text continued on page 10)
5
See United States v. Graham, 210 F.3d 376, 2000 WL 52891, *1 (7th
Cir. 2000) (unpublished) (concluding that it "clearly would be frivolous"
to argue that the sentence for a section 924(c) conviction should have
been reduced for acceptance of responsibility: "The acceptance of
responsibility credit operates by reducing the offense level calculation by
one to three points. But in sentencing for a § 924(c) conviction, there is
no offense level calculation. In fact, there is no offense level.") (citing
United States v. Scaffer, 110 F.3d 530, 533 (8th Cir. 1997).
6
Appellant attempts to counter this conclusion by contending that
924(c) charges are relatively common, and, thus, the Sentencing Com-
mission, "elaborate" as its guidelines are, must have knowingly pre-
vented 924(c) from being considered as an underlying crime in
obstruction of justice cases by omitting to provide for an offense level
for that crime. Under this thinking, Davis’ situation was indeed taken
into account by the sentencing guidelines, but was implicitly rejected as
a permissible basis of departure. See Br. of Appellant at 9.
UNITED STATES v. DAVIS 9
This reasoning is entirely unpersuasive. Assuming that Davis has even
framed the proper inquiry under his own rationale — a better question
would be the number of cases in which uncharged section 924(c) conduct
is concealed by offenses like subornation of perjury or obstruction of jus-
tice for which a defendant is convicted, and Davis has not cited any cases
dealing with that issue — whether a factor is a proper basis for departure
under Koon "does not turn on whether the Commission" must have
"‘thought about’ the factor before formulating the guidelines." Barber,
119 F.3d at 288 (separate op. of Wilkins, J.). Thus, "it is irrelevant
whether [the requirement of an offense level in 2X3.1] may have been
a motivating or even determining factor in leading the Commission to
structure the guidelines in a particular way" by, for example, not assign-
ing an offense level to section 924(c). Id. "Instead, the relevant inquiry
is," as always, "whether the . . . factor is within the heartland of conduct
encompassed by the applicable guideline," id., and as shown above, wit-
ness tampering and the like to "conceal" a section 924(c) offense (the
section 5K2.9 factor in this case) are outside of the heartland of section
2X3.1. See also id. ("The quintessence of the Commission’s direction on
departures and the ultimate point of the Koon decision is that analysis of
whether a factor was ‘considered’ by the Commission in formulating the
guidelines involves an inquiry into the heartland of conduct encompassed
by the applicable guideline —not speculation into the subjective thought
processes that may have led to the development of various guidelines.").
In any event, it is indisputable that a primary reason that departures are
allowed at all is to account for omissions that Congress knew the Sen-
tencing Commission would inevitably make. See Koon, 518 U.S. at 93-
94 (observing that one of the two reasons for the Commission’s approach
to departures is that "it is difficult to prescribe a single set of guidelines
that encompasses the vast range of human conduct potentially relevant
to a sentencing decision"). Davis simply has not demonstrated any foun-
dation for his proffered reconstruction of well-established principles of
guideline departures. And in the end, the inadequacy of the guidelines
regarding the particular instance of the encouraged factor of section
5K2.9 present here is soundly established when, because of a quirk in the
guidelines and absent an upward departure, Davis would have benefitted
at sentencing from his misconduct simply because a cross-reference can-
not be applied to the "particularly serious" section 924(c) offense in this
case, see USSG § 2J1.2, cmt. background — especially when Davis has
failed to offer more than his counterintuitive speculation that such a sen-
tencing benefit was, in fact, the Commission’s intent.
10 UNITED STATES v. DAVIS
Accordingly, even if, as Davis suggests, section 2J1.2 and 2J1.3
offenses like his are almost always done "to facilitate or conceal"
another criminal offense, that would not make an upward departure
under section 5K2.9 improper if, as here: (1) sections 2J1.2 and 2J1.3
themselves provide for a cross-reference to section 2X3.1 to account
for the extra culpability that comes from obstructing justice to conceal
a "particularly serious offense," and (2) section 2X3.1 does not
account for obstruction of justice done "to facilitate or conceal"
Davis’ section 924(c) offense. At least as to that second category,
then, the district court’s conclusion was not in error.7 Because this
case is significantly "different from the ordinary case where [underly-
ing criminal conduct by the defendant is concealed by the defendant’s
subornation and obstruction of justice crimes]," Koon, 518 U.S. at 96,
we hold that the district court did not err in departing upward under
section 5K2.9.
2.
Having determined that a departure was "appropriate in [this] par-
ticular case, the extent thereof need only be ‘reasonable under the cir-
cumstances.’" United States v. Bellamy, 264 F.3d 448, 454 n.3 (4th
Cir. 2001) (citations omitted); 18 U.S.C. § 3742(f)(2). As explained
by the Supreme Court, "the reasonableness determination looks to the
amount and extent of the departure in light of the grounds for depart-
ing." Williams v. United States, 503 U.S. 193, 203 (1992) (emphasis
7
We also reject Davis’ claim that there is no evidence that White or
anyone else made false statements with regard to the gun (rather than the
drugs) and, consequently, there was insufficient evidence to support the
application of section 5K2.9 based on his concealment of a section
924(c) offense. The existence of a drug trafficking crime during and in
relation to which Davis carried the gun (or possessed it in furtherance of
his drug trafficking crime) is a prerequisite for violating 924(c), see 18
U.S.C. § 924(c)(1) (2000); United States v. Studifin, 240 F.3d 415, 419
(4th Cir. 2001). And since Davis’ letters can be fairly read as an attempt
not only to avoid conviction for the drug possession charge, but for the
gun offense based in part on that drug possession as well, the district
court did not clearly err in concluding that Davis’ offenses of conviction
were committed to conceal his section 924(c) offense.
UNITED STATES v. DAVIS 11
added). Under Williams, this is necessarily a wide-ranging and flexi-
ble inquiry:
In assessing reasonableness . . . the Act directs a court of
appeals to examine the [statutory] factors to be considered
in imposing a sentence under the Guidelines, as well as the
district court’s stated reasons for the imposition of the par-
ticular sentence. A sentence thus can be "reasonable" even
if some of the reasons given by the district court to justify
the departure from the presumptive guideline range are
invalid, provided that the remaining reasons are sufficient to
justify the magnitude of the departure.
Id. at 203-04 (citing then-current version of section 3742(e)); see also
18 U.S.C.A. § 3742(e), (e)(C) (West Supp. 2004) (providing that
appellate review of whether a sentence "departs to an unreasonable
degree" must consider the statutory "factors to be considered in
imposing a sentence" as well as the district court’s statement of its
"reasons for the imposition of the particular sentence").
The district court departed "pursuant to § 5k2.9," Davis, 293 F.
Supp. 2d at 655, which provides that "the court may increase the sen-
tence above the guideline range to reflect the actual seriousness of the
defendant’s conduct." Under this framework, the district court, analo-
gizing to section 2J1.2, reasoned that "[a]lthough this section does not
permit consideration of the underlying gun charge, its instruction to
consider the underlying criminal offense guides the extent of the
court’s departure." Davis, 293 F. Supp. 2d at 655-56. After discuss-
ing the standards governing its reasonableness inquiry, the court con-
cluded that the extent of its departure was not unreasonable; a
sentencing range overlapping that which Davis would have received
for the underlying offenses upon conviction was "necessary to
ensure," in the court’s view, "that Davis d[id] not receive a net sen-
tencing benefit for his efforts to conceal his earlier offenses." Id.Thus, in this § 5k2.9 departure, the court concluded that the six-level
increase and the sentence imposed "account[ed] for the seriousness of
the crimes for which [Davis] avoided punishment by his obstruction
of justice and subornation of perjury" — the "conduct" on which the
upward departure is justified — and was "reasonable under the cir-
cumstances." Id. (emphasis added).
12 UNITED STATES v. DAVIS
As the en banc Ninth Circuit has concluded, "where . . . a district
court sets out findings justifying the magnitude of its decision to
depart and extent of departure from the Guidelines, and that explana-
tion cannot be said to be unreasonable, the sentence imposed must be
affirmed." United States v. Sablan, 114 F.3d 913, 919 (9th Cir. 1997)
(en banc) (overruling, in light of Koon, prior precedents that dictated
a "mechanistic" approach to upward departures). Because these
requirements were satisfied here, we cannot say that the district court
abused its discretion in sentencing Davis.
First, the district court did not select the extent of its departure ad
hoc, but rather provided a sufficiently principled explanation for its
decision to depart upward six levels in this case. See United States v.
Terry, 142 F.3d 702, 707 (4th Cir. 1998) (explaining that "it is often
helpful" for district courts to determine reasonableness by reference
to analogous guidelines or cases and instructing that the sentencing
"court must set forth some form of principled justification for its
departure determination.") (emphasis added). Indeed, the court only
departed after analyzing the inadequacy of the applicable guideline
(section 2X3.1) in the instant case, the seriousness of the specific con-
duct that this inadequacy prevented from being addressed, and the
increase in offense level, as well as the sentence imposed, that was
"necessary" to account for that conduct.8
Similarly, the district court’s justification addressed all necessary
factors. When a departure is based on an encouraged ground for
departure set forth in a specific guideline, the district court, in deter-
mining how much to depart in a particular case, must consider the
8
Cf., e.g., Terry, 142 F.3d at 707 n.6 (holding that when a district court
departed upward one level for each of 8 miles of "a scenic roadway not
constructed for high speed driving" on which the defendant drove at dan-
gerous speeds, that "methodology" was not "a principled justification for
departing [upward] by eight levels"); United States v. Gary, 18 F.3d
1123, 1130-31 (4th Cir. 1994) (district court failed to "employ principled
methods" in deciding to depart upward 12-levels for extreme conduct
and extreme psychological injury — a departure that the court concluded
was permissible in that case — when "[i]t appear[ed] that the district
court simply decided to double Gary’s base offense level for the sake of
doubling it").
UNITED STATES v. DAVIS 13
guidance that guideline provides as to the appropriate extent of depar-
ture. See Terry, 142 F.3d at 709. While the applicability of section
5K2.9 is predicated on a determination that "the defendant committed
the offense in order to facilitate or conceal the commission of another
offense," the only guidance section 5K2.9 provides for determining
the extent of a departure under that section is that the upward depar-
ture may be made "to reflect the actual seriousness of the defendant’s
conduct." Without question, the district court’s opinion squarely
addressed and relied on the latter consideration in justifying the extent
of its departure.
And we are satisfied that the district court’s six-level upward
departure was a reasonable way to address the "seriousness" of Davis’
conduct that, because section 924(c) has no offense level, could not
be accounted for under section 2X3.1. Importantly, the departure
complies with our instruction that "an upward departure should ‘not
exceed the sentence that would result under the Guidelines if [the
defendant] actually had been convicted of [the conduct underlying the
departure].’"9 Terry, 142 F.3d at 709 (quoting United States v. Mel-
ton, 970 F.2d 1328, 1334 (4th Cir. 1992) (alterations in the original)
(emphasis added)). The departure is also not exceptionally large rela-
9
On this point, Davis presses the facially meritorious contention that
since we cannot be certain that he would have been convicted at his first
trial had he not committed the offenses for which was convicted at his
second trial, a departure based on the penalty he would have received if
actually convicted of those offenses is unreasonable. But, again, Davis
misconstrues the relevant inquiry. That is, the threshold applicability of
section 5K2.9 in this case requires no more than a conclusion that the
government proved by a preponderance of the evidence that a defen-
dant’s suborning and obstruction of justice were done "to facilitate or
conceal the commission of another offense." USSG § 5K2.9, p.s.; see
United States v. Hill, 322 F.3d 301, 307 (4th Cir. 2003). If that require-
ment is met, then section 5K2.9 indicates the possibility of a departure
to account for the seriousness of Davis’ "conduct" — whether or not the
defendant would have been convicted under the more restrictive eviden-
tiary standards, and higher burden of proof, that would have applied at
a criminal trial for the underlying criminal offense that he attempted to
conceal through his actual offense of conviction. See United States v.
LeMaster, 54 F.3d 1224, 1232 (6th Cir. 1995).
14 UNITED STATES v. DAVIS
tive to upward departures generally,10 and while there are relatively
few cases addressing section 5K2.9 departures, we note that the Ninth
Circuit has upheld a far larger departure under that section in analo-
gous circumstances.11
To be sure, the district court might have determined the extent of
the upward departure differently. The court might have, as the dissent
suggests, tried to approximate the result that application of section
2X3.1 would produce if it could be applied to section 924(c) offenses.
But even assuming that such a methodology would be proper under
the guidelines, the district court was not required to employ it. Nei-
ther this nor any other method has been specified by the Commission
as the proper means to determine the seriousness of criminal conduct
that conceals a section 924(c) offense under section 5K2.9, and noth-
ing in the guidelines compels the conclusion that the district court’s
chosen method was a prohibited one.12
Nor, as the dissent maintains, does Terry dictate a different conclu-
sion. In Terry, we did not hold, as the dissent contends we did, that
the district court is limited to determining the recommended sentence
for analogous conduct and imposing that sentence. We said nothing
more in Terry than that "it is often helpful to look to the treatment of
analogous conduct in other sections of the Sentencing Guidelines"
when deciding upon a departure. Terry, 142 F.3d at 707. Here, the
district court did just that, looking to the treatment of the analogous
10
See, e.g., Gary, 18 F.3d at 1130-31 (collecting cases upholding
upward departures of between 10 and 21 levels); Sablan, 114 F.3d at
915, 918-19 (holding that a 15-level departure to the then-statutory maxi-
mum based on several factors was reasonable).
11
See United States v. Washington, 172 F.3d 1116, 1117-18 (9th Cir.
1999) (holding that a 13-level departure under sections 5K2.0 and 5K2.9
was not unreasonable).
12
As we observed six years ago in Terry — and as appears to remain
the case today — the Commission simply "has not provided the district
courts with any specific guidance for determining the extent of a depar-
ture" that, like section 5K2.9, is governed by the general "Grounds for
Departure" policy statement, section 5K2.0. 142 F.3d at 707 (emphasis
added); see also USSG § 5K2.0 (generally); § 5K2.0, cmt. n.2 ("Scope
of this Policy Statement").
UNITED STATES v. DAVIS 15
conduct of obstruction of prosecution in § 2J1.2. Davis, 293 F. Supp.
2d at 656. The dissent insists that the district court was required to
have imposed the exact sentence, or one approximating the sentence,
recommended in § 2x3.1 (the guideline cross-referenced in § 2J1.2),
or at least to have explained any decision not to impose such sen-
tence. See post at 17-19. But Terry requires nothing of the sort, and
neither do we believe that such is required under 18 U.S.C.
§ 3742(f)(2). We are especially confident of this conclusion where, as
here, the district court departs pursuant to a guideline that itself
instructs on the appropriate extent of any departure. Here, of course,
the district court determined by reference to § 2J1.2 that the "underly-
ing criminal offense" was relevant to any enhancement and then rea-
sonably applied § 5K2.9, imposing a sentence that "account[ed] for
the seriousness of the crimes for which the defendant avoided punish-
ment," i.e., the underlying criminal offense. Davis, 293 F. Supp. 2d
at 656.
Nor is the district court’s method without its own merits. Section
924(c) is a statutory sentence enhancement applied "in addition to the
punishment provided for [the underlying crime]," § 924(c), and for
which, under these circumstances, "the guideline sentence is the mini-
mum term of imprisonment required by statute," without any potential
for downward adjustments for acceptance of responsibility or the like.
See USSG § 2K2.4(b) (emphasis added); supra at 5 n.4. Arguably,
this sentence represents the special culpability with which Congress
views that offense; an alternative methodology that attempted to
create some hypothetical offense level for section 924(c) offenses that
could be used in the section 2X3.1 calculations could very well dis-
count the contribution made by the special characteristics of Davis’
section 924(c) offense to the "seriousness" of his "conduct" as meant
by section 5K2.9 and, if mandated by a court of appeals, could make
short shrift of the deference we owe — by statute, no less — to the
district courts’ expertise on this question. See supra at 4 n.2 (citing
§ 3742(e), (e)(4)); United States v. LeMaster, 54 F.3d 1224, 1233 (6th
Cir. 1995) ("[I]t is for the sentencing court to determine the extent of
the departure based upon the totality of the circumstances. The trial
judge’s determination should be given great deference unless we can
say that there is no basis for the departure.") (emphasis added).
Accordingly, we hold that the district court was well within its dis-
cretion in concluding that Davis’ sentence departed from the applica-
16 UNITED STATES v. DAVIS
ble guideline range by a degree that was reasonable under the
circumstances, and therefore affirm Davis’ sentence.
B.
As a final matter, we briefly address Davis’ two specific challenges
to the sufficiency of the evidence supporting his convictions. First, we
reject Davis’ claim that the "two-witness" rule required the testimony
of two witnesses to convict him for subornation of perjury, and only
one witness (White) actually testified at his trial. Even if this rule
applies to subornation of perjury in addition to perjury itself, the rule
does not require as much as Davis suggests. Indeed, although Davis
cites to United States v. Knohl, 379 F.2d 427 (2d Cir. 1967) in sup-
port of his argument, that case rejects his categorical version of the
two-witness rule on its face, explaining that "the falsity of swearing
or the formal affirmation . . . must be established by the testimony of
two credible witnesses or one such witness plus corroborating cir-
cumstances." Id. at 443 (emphasis added). And from our review of the
record, the production of Davis’ letters was more than adequate cor-
roboration of White’s testimony.13
13
For instance, in one letter Davis wrote the following:
See what they are trying to do is stick me in the pen fed time.
Not just little jail. I don’t know why. I know that I need you to
do what we talked about or I’m done, really done, 10 to 12
years. Damn, that’s what I’ve been told anyway. Look, the only
way out is to make it look good. You have to stand up and act
like you know exactly what the deal is. No stuttering. I can be
helped, but only by you, okay. Please. I’m a write and let you
know what to say, but I have to wait until Monday to talk to my
lawyer. We got to keep the story short and simple. You should
say something like you need rent money bad, down to your last
dollar, and your ex-boyfriend, say no name, said if you hold this
for me [the ex-boyfriend], he’ll pay you — he’ll pay all your rent
for you. Say all you was to do was to hold it.
J.A. 107-08 (Letter read by Sophia White at trial) (emphases added).
Additional letters like the one above were also introduced into evidence,
as was independent corroboration of Davis’ location at the relevant time,
which corresponded with the letters’ indicated return address.
UNITED STATES v. DAVIS 17
Second, we reject Davis’ challenge to his conviction for witness
tampering pursuant to 18 U.S.C. § 1512. Contrary to Davis’ asser-
tions, the current, and relevant, version of this statute does not require
proof that a defendant knowingly engaged in coercive or deceptive
conduct in order to obtain a conviction for witness tampering. Rather,
section 1512 provides that "[w]hoever knowingly uses intimidation,
threatens or corruptly persuades another person, or attempts to do so,
or engages in misleading conduct toward another person, with intent
to" influence a witness at trial is guilty. § 1512(b)(1) (emphasis
added). As we read the statute, "the ‘corruptly persuades’ language of
the [current] statute encompasses non-coercive attempts by a target
of a criminal investigation to tamper with prospective witnesses."
United States v. Khatami, 280 F.3d 907, 908 (9th Cir. 2002) (empha-
sis added). The evidence is easily sufficient to show that Davis "cor-
ruptly persuaded" White to perjure herself, even if he did not coerce
or deceive her to do so. Accordingly, we hold that the evidence at
Davis’ trial was sufficient to support his conviction on all counts, and
thus that the district court’s denials of Davis’ motions for a new trial
and for a judgment of acquittal were not erroneous.
CONCLUSION
For these reasons, the judgment of the district court is affirmed.
AFFIRMED
MICHAEL, Circuit Judge, concurring in part and dissenting in part:
The district court did not adequately justify its upward departure
when it sentenced Arnell Davis for obstructing his earlier prosecution
for gun possession under 18 U.S.C. § 924(c). The court decided to
depart upwardly because the sentencing guidelines do "not account
for obstruction of justice done to ‘facilitate or conceal’ [a] section
924(c) offense." Ante at 10. In considering departure, the court recog-
nized that "the analogous treatment in the Guidelines is found under
section 2J1.2 [obstruction of justice]." J.A. 295. Then, in accordance
with § 2J1.2’s "instruction to consider the underlying [concealed]
criminal offense," id., the court gave Davis a sentence corresponding
to what he would have received if he had been convicted of violating
§ 924(c) at his initial trial. In doing this, the court never discussed
18 UNITED STATES v. DAVIS
guideline § 2J1.2(c), which plainly suggests that obstruction does not
warrant a sentence equal to one that could be imposed for the underly-
ing concealed crime. Because the district court abused its discretion
when it structured the departure in a manner that directly contradicts
the guidelines’ treatment of analogous conduct, I respectfully dissent
from part II.A.2 of the majority opinion. I otherwise concur.
Under the Sentencing Reform Act the extent of any departure from
the guidelines must be "reasonable under the circumstances." United
States v. Terry, 142 F.3d 702, 707 (4th Cir. 1998) (citing 18 U.S.C.
§ 3742(f)(2)). When a court exercises its departure powers, the "stan-
dard of reasonableness . . . demand[s] . . . continued cognizance of
the guidelines." United States v. Hummer, 916 F.2d 186, 195 n.7 (4th
Cir. 1990). In United States v. Terry we explained that:
In determining what is reasonable . . . the sentencing court
should first consider the rationale and methodology of the
Sentencing Guidelines. In particular, it is often helpful to
look to the treatment of analogous conduct in other sections
of the Sentencing Guidelines. In the event the Sentencing
Guidelines do not provide any useful analogies, however,
the sentencing court must set forth some form of principled
justification for its departure determination.
142 F.3d at 707 (internal citations omitted). Terry makes it clear that
when deciding the extent of a departure, the sentencing court should
look first and foremost at the rationale and methodology of the guide-
lines, which is most readily identified by referring to analogous con-
duct. If the guidelines do not provide any useful analogies, however,
the sentencing court must set forth some other principled justification
for its departure.
Section 2J1.2, the guideline for obstruction of justice, provides a
clear analogy for how a defendant like Davis should be sentenced.
Specifically, the section says that when a defendant obstructs the
prosecution of a criminal offense, he is to be sentenced as an acces-
sory after the fact to the underlying offense. U.S.S.G. § 2J1.2(c).
Under § 2X3.1 an accessory after the fact is assigned a base offense
level that is "6 levels lower than the offense level of the underlying
offense." This six level reduction reflects an accessory’s "reduced cul-
UNITED STATES v. DAVIS 19
pability" in comparison to a person who is convicted of the underly-
ing offense. Id. § 2X3.1, cmt. n.2. Thus, § 2J1.2’s rationale and
methodology confirm two points that are relevant to Davis’s case: (1)
when a defendant obstructs the prosecution of an underlying crime,
the punishment level for the underlying crime is the starting point in
calculating the sentence; and (2) although the underlying crime is to
be considered when determining the sentence for obstruction, a defen-
dant should normally receive a lesser sentence than he would have
received if convicted of the underlying crime.
In this case the district court decided to depart because § 2J1.2,
with its cross-reference to § 2X3.1, "do[es] not allow for the consider-
ation of a stand alone 18 U.S.C. 924(c) gun possession charge
because it does not carry an offense level." J.A. 293. In deciding the
extent of the departure, the court began by recognizing that "the anal-
ogous treatment in the Guidelines is found under section 2J1.2." J.A.
295. The court concluded that "[a]lthough this section does not permit
consideration of the underlying gun charge, its instruction to consider
the underlying criminal offense guides the extent of the court’s depar-
ture." Id. The court then departed upward to an offense level yielding
the same sentencing range that would have been applicable if Davis
had been convicted of violating 18 U.S.C. § 924(c) at his initial trial.
The court said that this level was "necessary to ensure . . . that Davis
d[id] not receive a net sentencing benefit for his efforts to conceal his
earlier offenses." Id. In reaching this conclusion, the court never dis-
cussed § 2J1.2’s instruction that a person who obstructs the prosecu-
tion of a crime is to be sentenced as if he was less culpable than a
person who is convicted of the underlying crime. Nor did the court
mention that under § 2J1.2 there is a net sentencing benefit for the
defendant who is convicted of obstruction rather than for his underly-
ing crime.
The district court abused its discretion when it failed to explain
why it structured Davis’s sentence in a manner that directly contra-
dicted the guidelines’ treatment of analogous conduct under § 2J1.2.
See Terry, 142 F.3d at 707. Specifically, Davis was given a sentence
corresponding to a § 924(c) conviction when § 2J1.2, with its cross-
reference to § 2X3.1, plainly says that a defendant’s obstruction of a
prosecution does not warrant a sentence equal to the underlying
crime. It is true that § 2J1.2 cannot be precisely applied to a case
20 UNITED STATES v. DAVIS
involving a § 924(c) offense. That does not mean, however, that the
principles embodied in that analogous section (§ 2J1.2) have no appli-
cation to such a case. As the Seventh Circuit has said, "[a] judge may
not say: ‘I have decided to depart, so I now throw away the guide-
lines.’" United States v. Ferra, 900 F.2d 1057, 1061-62 (7th Cir.
1990), quoted in Terry, 142 F.3d at 707. But that is exactly what
occurred here: the district court determined that a departure was nec-
essary because § 2X3.1 could not be applied to an offense that has no
base offense level; the court thereafter "threw away" the portion of the
guidelines indicating that Davis was less culpable than if he had been
convicted of violating § 924(c).
As the majority recognizes, the district court could have accommo-
dated the guidelines’ treatment of analogous conduct in § 2J1.2 by
"approximat[ing] the result that application of section 2X3.1 would
produce if it could be applied to section 924(c) offenses." Ante at 14.
I agree that the district court was not required to structure its sentence
in such a manner. However, the court had a duty to explain why it
chose not to accommodate a guideline that, in the district court’s own
words, provided "analogous treatment" to Davis’s case. More pre-
cisely, the district court should have explained what it was about
Davis’s conduct (obstructing the prosecution of a § 924(c) offense)
that necessitated treating it differently than conduct generally covered
in § 2J1.2 (obstructing the prosecution of an offense that has a base
offense level). For example, the majority explains that Congress’s
decision to impose a mandatory minimum sentence for violating
§ 924(c) may reflect "the special culpability with which Congress
views that [conduct]." Ante at 15. Accordingly, the majority argues,
the district court’s decision to impose a five-year sentence might take
into account "the special characteristics of Davis’ section 924(c)
offense." Id. While that may be true, the district court’s decision did
not include the explanations offered by the majority. The only reason
the district court departed was because a § 924(c) offense is punish-
able by a mandatory minimum rather than a base offense level. The
court never suggested that there was something more serious in
Davis’s conduct than in conduct obstructing the prosecution of some
other offense. Because the district court did not find Davis’s conduct
to be any more egregious than other conduct falling under § 2J1.2,
that guideline section, it appears, should have been relied upon to set
the parameters of the court’s departure.
UNITED STATES v. DAVIS 21
The majority upholds the departure determination because, in its
view, our circuit only requires that a district court "set forth some
form of principled justification for its departure determination." Ante
at 12 (citing Terry, 142 F.3d at 707). In this case the majority believes
the district court offered a "principled justification" when it said that
the departure was "necessary to ensure . . . that Davis did not receive
a net sentencing benefit for his efforts to conceal his earlier offenses."
Ante at 11 (citing J.A. 295), 12. This "justification," however, directly
contradicts the rationale of § 2J1.2, which provides that a defendant’s
obstruction does not justify a sentence equal to the underlying crime.
I therefore respectfully disagree with the majority’s ultimate position
that the district court was not under any duty to consider § 2J1.2, as
long as it offered any principled justification in support of its depar-
ture.
First, our court has not held that a district court may, in all cases,
ignore the guidelines’ treatment of analogous conduct as long as it
offers "some form of principled justification" for its departure deci-
sion. Ante at 12. In fact, our case law suggests just the opposite. In
Terry we said that "it is often helpful to look to the treatment of anal-
ogous conduct in other sections of the Sentencing Guidelines. In the
event the Sentencing Guidelines do not provide any useful analogies
. . . the sentencing court must set forth some form of principled justifi-
cation for its departure." 142 F.3d at 707 (emphasis added). The
majority reads this language to mean "nothing more . . . than that" a
court may look to analogous conduct in structuring a departure, or it
may not. Ante at 14, 12. This interpretation does not account for the
phrase "in the event," which is generally used to mean "if." See Web-
ster’s Third New Int’l Dictionary 1124 (1993) (defining "if" as "in the
event that"). A more accurate reading of Terry is that if a district court
decides that the guidelines do not provide any useful analogies, then
it may look elsewhere for guidance in structuring its departure.1 In our
case the district court specifically found that § 2J1.2 provided analo-
gous conduct. But rather than using the guidelines’ "treatment of
[this] analogous conduct," Terry, 142 F.3d at 707, to structure its
departure, the district court offered its own justification, one that was
1
Because we review the extent of a departure for abuse of discretion,
we would owe deference to a district court’s decision about whether a
guideline provides a useful analogy.
22 UNITED STATES v. DAVIS
completely at odds with the very section that the court had found to
be analogous. Terry does not allow guidelines’ methodology to be
brushed aside so easily.2
Second, provisions of the Sentencing Reform Act and the guide-
lines support the conclusion that departures should, when possible, be
guided by analogous conduct. For example, 18 U.S.C. § 3553(b)(1)
says that when a court is imposing a sentence for an offense for which
there is no applicable guideline, the court must "have due regard for
the relationship of the sentence imposed to sentences prescribed by
guidelines applicable to similar offenses." Guideline § 2X5.1 says that
if an offense is committed for which "no guideline expressly has been
promulgated," U.S.S.G. § 2X5.1, the court "is required to determine
if there is a sufficiently analogous offense guideline and if so to apply
the guideline that is most analogous," id. at cmt. background. See also
U.S.S.G. § 4A1.3 (when departing because criminal history category
does not adequately reflect the seriousness of defendant’s former
crimes, the court should use "as a reference, the criminal history cate-
gory applicable to defendants whose criminal history . . . most closely
resembles that of defendant"). These provisions make clear that when
there is no applicable guideline, the sentencing court must consider
the guidelines’ treatment of analogous conduct. This same require-
ment should apply when, as in this case, there is a guideline (§ 2J1.2),
but the court decides to depart. See Ferra, 900 F.2d at 1062.
2
The majority suggests that the district court did "look[ ] to the treat-
ment of the analogous conduct" in structuring its departure. Ante at 14-
15. Specifically, according to the majority, the district court "determined
by reference to § 2J1.2 that the ‘underlying criminal offense’ was rele-
vant to any enhancement." Id. at 15. But as I discuss above, § 2J1.2(c)
does not just say that the underlying criminal offense is relevant; it also
provides that obstruction of a prosecution does not warrant a sentence
equal to one that could be imposed for the underlying offense. The
majority does not believe that Terry required the district court to account
for this latter proviso of § 2J1.2(c). I respectfully disagree. Terry recog-
nized that "look[ing] to the treatment of analogous conduct" provides a
principled method for structuring a departure. Terry, 142 F.3d at 707.
The method is only principled, however, if the district court actually
applies the treatment for analogous conduct or explains why that treat-
ment is not appropriate. The district court failed to do either in this case.
UNITED STATES v. DAVIS 23
Finally, a court must consider analogous conduct when structuring
a departure in order to carry out Congress’s intention that "the sen-
tencing guidelines system . . . will guide the judge in making his deci-
sion on the appropriate sentence." S. Rep. No. 98-225 (1984),
reprinted in 1984 U.S.C.C.A.N. 3234. See also Hummer, 916 F.2d at195 n.7 (when deciding how far to depart, district court must remain
"cognizan[t] of the guidelines"). A district court that ignores directly
analogous guidelines is no longer being guided by them. Rather, it is
being guided by its own subjective beliefs about how certain conduct
should be sentenced. That is the exact outcome the guidelines were
designed to avoid.
In sum, the district court here did not provide a reasonable basis for
its departure decision. Accordingly, I would remand for resentencing.
At that time, if the district court imposed the same sentence, it would
have to offer a reasonable justification for why it did not apply the
principles of § 2J1.2 to Davis’s case. See, e.g., United States v. Gary,
18 F.3d 1123, 1125 (4th Cir. 1994) ("We do not imply that the district
court must reduce the upward departure imposed on remand, but sim-
ply that a reasoned basis for the court’s decision must be set forth.")