United States v. Jacob Russell , 701 F. App'x 401 ( 2017 )

Case: 16-51171 Document: 00514240308 Page: 1 Date Filed: 11/16/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-51171
Fifth Circuit
FILED
Summary Calendar November 16, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
JACOB RUSSELL,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:16-CR-152-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Before the court is Jacob Russell’s appeal of his sentence for obstructing
justice through retaliation against a witness, victim, or informant, a violation
of 18 U.S.C. § 1513(b)(2). In sentencing Russell, the district court assessed the
eight-level enhancement under U.S.S.G. § 2J1.2(b)(1)(B), which applies “[i]f
the offense involved causing or threatening to cause physical injury to a person,
or property damage, in order to obstruct the administration of justice.”
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-51171
§ 2J1.2(b)(1)(B). The district court assessed the § 2J1.2(b)(1)(B) enhancement
based on a threatening letter Russell admitted writing to a person he believed
cooperated with law enforcement in Russell’s earlier federal case for conspiracy
to possess with intent to distribute crack cocaine.
In his first argument, Russell contends that the § 2J1.2(b)(1)(B)
enhancement was inapplicable because he did not write the threatening letter
in order to obstruct the administration of justice, as he did not write the letter
until after he had been sentenced in the conspiracy case. According to Russell,
the letter could not have constituted an act of obstruction of justice absent a
pending judicial proceeding that the letter was intended to affect.
We review the district court’s application of the Sentencing Guidelines
de novo and the district court’s factual findings for clear error. United States
v. Salazar, 542 F.3d 139, 144 (5th Cir. 2008). We may affirm a guidelines
enhancement based on any ground supported by the record. United States v.
Garcia-Gonzalez, 714 F.3d 306, 314 (5th Cir. 2013). We do not reach Russell’s
argument that § 2J1.2(b)(1)(B) requires a nexus to a proceeding that was
pending, as Russell’s letter indicates that he threatened the intended recipient
of the letter during the months before Russell’s sentencing in the conspiracy
case. Accordingly, Russell has not shown that the district court erred in
applying the § 2J1.2(b)(1)(B) enhancement.
Russell also claims that his trial counsel provided ineffective assistance
by failing to object in writing that the § 2J1.2(b)(1)(B) enhancement was
inapplicable because Russell wrote the letter after his conspiracy case had
concluded. Russell presented that objection orally at sentencing, and the
district court overruled it. Because the record is sufficiently developed to show
that Russell cannot demonstrate prejudice from the absence of a written
objection by counsel, Russell’s ineffective assistance claim is denied. See
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Case: 16-51171 Document: 00514240308 Page: 3 Date Filed: 11/16/2017
No. 16-51171
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); United States v.
Saenz-Forero, 27 F.3d 1016, 1021 & n.7 (5th Cir. 1994).
AFFIRMED.
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