United States v. Lawrence Kominek , 651 F. App'x 603 ( 2016 )

FILED
NOT FOR PUBLICATION
JUN 02 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10206
Plaintiff - Appellee, D.C. No. 3:14-cr-00025-HDM-
VPC-1
v.
LAWRENCE KOMINEK, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior District Judge, Presiding
Argued and Submitted May 9, 2016
San Francisco, California
Before: KLEINFELD, IKUTA, and WATFORD, Circuit Judges.
Lawrence Kominek was convicted of two counts of methamphetamine
distribution in the United States District Court for the District of Nevada. He now
appeals the district court’s imposition of a two level sentencing enhancement under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the United States Sentencing Guidelines § 3C1.1 for obstruction of justice. We
have jurisdiction under 28 U.S.C. § 1291 and we affirm.
Under the Guidelines, “[o]bstructive conduct can vary widely in nature,” and
can include “threatening” a person involved in the justice system “directly or
indirectly.” U.S.S.G. § 3C1.1 cmt. n.3, n.4(A). We are bound by this commentary
because it is neither inconsistent with nor a plainly erroneous reading of § 3C1.1.
United States v. Bernardo, — F.3d —, 2016 WL 1445223, at *2 (9th Cir. 2016)
(“[T]he commentary in the Guidelines Manual that interprets or explains a
guideline is authoritative unless it . . . is inconsistent with, or a plainly erroneous
reading of, that guideline.” (quoting United States v. Martin, 796 F.3d 1101, 1108
(9th Cir. 2015) (internal quotation marks omitted))). Conduct that is sufficiently
threatening to a person who plays a role in the defendant’s future sentencing
proceedings, whether or not the threat is made directly to the threatened person, is
disruptive to the criminal justice system. See United States v. Jackson, 974 F.2d
104, 106 (9th Cir. 1992) (“Where a defendant’s statements can be reasonably
construed as a threat, even if they are not made directly to the threatened person,
the defendant has obstructed justice.”).
Here, the district court did not clearly err in concluding that Kominek’s
conduct obstructed justice. See id. at 105 (“Whether a defendant obstructed justice
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under the Guidelines is a factual determination we review for clear error.”). The
district court found that Kominek spoke with another prisoner over an eight month
period of time about how to send a message to the prosecutor “as a form of
intimidation.” The court found that during the course of the conversation,
Kominek told the other prisoner that it was better to use C-4 explosives (that
Kominek could provide) than a grenade to blow up the prosecutor’s car, and
Kominek also provided instructions on how to attach the explosive to the
prosecutor’s car. Further, the district court found that Kominek gave authorities
information about these conversations in part to remove himself as a possible
suspect if the prosecutor’s car were blown up. Given these findings, which are
supported by the record, the district court did not clearly err in concluding that
Kominek’s role in planning how to intimidate the prosecutor constituted
obstruction of justice. Nor did the court err in characterizing this obstructive
conduct as meeting the requirements of § 3C1.1, which includes “threatening”
conduct. U.S.S.G. § 3C1.1 cmt. n.4(A). The fact that Kominek’s threatening
statements were not made directly to the prosecutor is no obstacle to the
application of § 3C1.1. See Jackson, 974 F.2d at 106.
AFFIRMED.
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FILED
United States v. Kominek, No. 15-10206
JUN 02 2016
KLEINFELD, Senior Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent.
The district court finding was that Kominek “immersed himself” in a
conversation with a fellow prisoner who expressed an intent to intimidate the
prosecutor. There was no finding that Kominek intended to intimidate the
prosecutor, and there was no finding that Kominek communicated to or threatened
the prosecutor directly or indirectly. Kominek’s only communication was with the
FBI to disclose the conversations in which his acquaintance expressed a desire to
harm the prosecutor. Kominek’s stated intent was partly to remove himself as a
suspect if his fellow prisoner did indeed cause the prosecutor’s car to be blown up.
Reporting a possible future crime to the authorities with an intention not only to
prevent it but also to remove oneself as a possible suspect, facilitates justice rather
than obstructing it. Since there was no finding, and no facts to support a finding,
that Kominek directly or indirectly threatened the prosecutor, the two-level
obstruction of justice enhancement was erroneously imposed.
United States v. Jackson, 974 F.2d 104, 106 (9th Cir. 1992) does not dictate
otherwise. In Jackson, the defendant was assigned a two-level increase for
obstruction of justice for making copies of a cooperation agreement with a witness
with the words “rat” written on it, and distributing these copies around the city of
Portland. The reason this behavior constituted a threat, even though it was
indirectly, rather than directly, communicated to the witness, is that the witness
would know immediately from the “rat” notation on his plea agreement that his
safety was in danger. No inference of intimidation can be made here. Kominek’s
only communication, to the FBI, would support an inference that he was thwarting
rather than making a threat, and if he had “immersed” himself, had also withdrawn
from any plot against the prosecuting attorney.
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