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United States v. Leon Henry , 425 F. App'x 116 ( 2011 )


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  •                                                                   NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 08-1757
    ____________
    UNITED STATES OF AMERICA
    v.
    LEON HENRY,
    Appellant
    ____________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. No. 06-cr-00033-02)
    District Judge: Honorable Jan E. Dubois
    ____________
    Submitted Under Third Circuit LAR 34.1(a)
    April 26, 2011
    Before: BARRY, HARDIMAN and NYGAARD, Circuit Judges.
    (Filed: April 26, 2011)
    ____________
    OPINION OF THE COURT
    ____________
    HARDIMAN, Circuit Judge.
    Leon Henry (Leon or Henry) appeals his judgment of sentence following a jury
    trial. Because the District Court committed no error, we will affirm.
    I
    Because we write for the parties, who are well acquainted with the case, we review
    only briefly the essential facts and procedural history.
    In 2003, Leon and his brother Andre Henry (Andre) wanted to purchase firearms,
    but could not do so directly because they were convicted felons. Accordingly, they
    recruited two women, Tameka Niblack and Starlene Herbert, to act as “straw” purchasers.
    In their first attempt to purchase an assault rifle for the Henrys, the women were rebuffed
    by a gun store clerk because they did not know how to operate the weapon. Undaunted
    by this rejection, the Henrys drove Niblack the next day to a different gun store, where
    she successfully purchased a Bushmaster AR-15 rifle, ammunition, and a gun cleaning
    kit. During the following week, in two separate transactions, Niblack purchased two
    Glock 9mm handguns. Niblack gave all three weapons and accessories to the Henrys.
    At trial and during sentencing, the Government introduced evidence that prior to
    Niblack‟s purchases, Leon had helped Andre conceal evidence and launder money from
    Andre‟s earlier crimes, which included eight robberies of fast food restaurants with a fake
    firearm, two robberies of the Pulaski Savings Bank with an AK-47 rifle, and two
    attempted carjackings, during one of which Andre shot at a police officer. The
    Government also introduced evidence that the Henrys and two conspirators were planning
    a third bank robbery at which Leon was to stay outside the bank and act as a sniper if
    police arrived, although Leon was eventually acquitted of this conspiracy. Fortunately,
    Andre was arrested for violating his parole before a third bank robbery could occur.
    2
    Leon was arrested after Andre and was charged with one count of conspiracy to
    make false statements to a federal firearm licensee, and two counts of making such
    statements. Andre and five other conspirators were also charged in the indictment, but
    those charges are not germane to this appeal. A superseding indictment was filed,
    followed by a second superseding indictment charging twenty-eight counts against the
    seven defendants. Leon was charged with: (1) being a felon in possession of a firearm in
    violation of 18 U.S.C. § 922(g)(1); (2) conspiring to make false statements to a federal
    firearm licensee in violation of 18 U.S.C. § 371; (3) making false statements to a federal
    firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A); and (4) conspiracy to commit
    armed bank robbery, in violation of 18 U.S.C. § 371. Following a successful motion to
    sever, Leon was tried alone, and the jury found him guilty of the firearms offenses but
    acquitted him of conspiracy to commit bank robbery. After a four day sentencing
    hearing, the District Court sentenced Leon to 106 months imprisonment.
    At sentencing, the Government sought sentencing enhancements under the United
    States Sentencing Guidelines (USSG) for, inter alia, obstruction of justice (USSG §
    3C1.1) and possessing or transferring a gun with knowledge, intent or reason to believe it
    would be used in a felony offense (USSG § 2K2.1(b)(5)). The Government also moved
    for upward departures because Henry engaged in multiple acts of obstruction of justice
    and because he threatened a prosecutor. The Government proffered multiple witnesses to
    testify in support of these enhancements. The District Court did an admirable job
    weighing the voluminous evidence and determining whether each alleged act supported
    3
    an enhancement, departure, or variance.
    First, the District Court found that Henry attempted to convince Niblack to stage a
    break-in and file a false police report that the guns had been stolen. Supp. App. 321, 334.
    The District Court reasonably found that this “was an unlawful attempt to influence a
    witness to lie to the police,” which amounted to obstruction of justice pursuant to
    application note 4(a) to USSG § 3C1.1. 
    Id. at 334.
    Second, the Government presented somewhat equivocal evidence to show that
    Leon had, pursuant to an earlier agreement with Andre, gone to the apartment of one of
    the straw purchasers to prevent her from testifying by killing her, but that he had
    abandoned the plan. The District Court found that this did not amount to an attempt to
    obstruct justice and declined to enhance based on the evidence. 
    Id. at 323.
    Third, the Government proffered evidence that Leon, at Andre‟s behest,
    approached two potential witnesses outside the grand jury room. The Government argued
    that this amounted to an attempt to interfere with the grand jury, but the District Court
    found that speaking to the witnesses, without any evidence of threats or intimidation,
    could not support an enhancement for obstruction of justice. 
    Id. at 325.
    Fourth, the Government proffered evidence that Henry had first deliberately
    hidden the guns, then, after the police failed to find them, had hidden them again
    elsewhere, and finally, once he was in custody, had telephoned a compatriot and
    instructed him to hide them in yet a third location. The District Court rejected the
    defense‟s argument that simply concealing evidence could not amount to obstruction of
    4
    justice and found that because Henry “took deliberate steps, with knowledge of an
    investigation, to conceal the weapons [it] amount[ed] to obstruction of justice.” 
    Id. at 332;
    see USSG § 3C1.1 cmt. n. 4(d) (2002).
    Fifth, the Government presented evidence that, once he was incarcerated, Henry
    spoke to co-defendant and potential witness Herbert through the prison‟s plumbing
    system. When Herbert declined to speak with Henry, he told her not to testify and
    threatened to poison everyone on her floor in the prison. The District Court found that
    this threat constituted obstruction of justice. Supp. App. 336; USSG § 3C1.1 cmt. n. 4(a)
    (2002).
    Finally, the Government presented evidence that Henry told another prisoner that
    he was planning to kill the Assistant United States Attorney prosecuting his case.
    Specifically, Henry told the prisoner (1) that he had read a transcript of his trial during
    which, at sidebar, the prosecutor had requested time to take her daughter to the hospital,
    and (2) that he intended to use the Bushmaster AR-15 rifle, which the Government had
    never found, to kill the prosecutor and her family. Henry‟s prison confidante informed
    the prosecutor and testified against Henry at sentencing, and this testimony was
    corroborated by another prisoner. Defense counsel argued that because the threat had not
    been communicated by Henry to the prosecutor it could not constitute a real threat or an
    attempted obstruction of justice. The District Court disagreed. Supp. App. 339.
    In sum, the District Court found four acts that could constitute obstruction of
    justice—urging Niblack to file a false police report, concealing and re-concealing the
    5
    weapons to hinder the investigation, threatening to poison Herbert‟s prison floor to
    prevent her from testifying, and threatening to kill the prosecutor and her family—and
    rejected two others—the alleged aborted attempt to kill a witness, and speaking to
    potential grand jury witnesses.
    After making these findings, the District Court ruled on the applicability of the
    various guidelines and enhancements. First, it found that the four-level enhancement
    under USSG § 2K2.1(b)(5) was applicable, for two independent reasons, namely because
    Henry
    had reason to believe that the weapons for which he is criminally
    responsible, the Bushmaster AR-15 and the two Glocks, would be used or
    possessed in connection with another felony offense [and also because,]
    with respect to the threat on [the prosecutor,] the defendant possessed that
    Bushmaster, although it was possessed at the time of the statement
    constructively only, he knew where it was . . . the Government didn‟t know
    where it was, he possessed that weapon constructively with the intent to
    commit another felony offense, that is the murder of [the prosecutor].
    
    Id. at 315.
    The District Court also granted a two-level enhancement for obstruction of justice
    under USSG § 3C1.1 “because of the attempt of the defendant to have a witness make a
    false police report.” 
    Id. at 343.
    It then found that “the separate acts of obstruction, the
    concealment of evidence and the threats to co-defendant, warrant[ed] a two-level increase
    in offense level, and . . . depart[ed] upward by two levels” for those acts. 
    Id. at 345.
    Finally, the District Court addressed the Government‟s motion for an upward
    departure for the threats against the prosecutor. The Government argued that this
    6
    warranted a three level upward departure by analogy to USSG § 3A1.2—an enhancement
    for an official victim—but the District Court rejected this argument because the
    prosecutor was not a victim of Henry‟s offenses of conviction. Nonetheless, the District
    Court departed upward an additional two levels based on the threat to the prosecutor. 
    Id. at 346.
    At the conclusion of sentencing, the District Court clarified that both upward
    departures—for the threat against the prosecutor and the multiple acts of obstruction of
    justice—were pursuant to USSG § 5K2.0 which “provides for a departure, „if the Court
    finds that there exists an aggravating or mitigating 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 sentence different from that described.‟” 
    Id. at 366
    (quoting USSG § 5K2.0 (2002)).
    II
    On appeal, Henry challenges the District Court‟s application of the two-level
    enhancement for obstruction of justice under USSG § 3C1.1 and the two additional two-
    level upward departures under USSG § 5K2.0.
    We review district court sentencing decisions for abuse of discretion, looking first
    for procedural error and then examining the sentence for substantive reasonableness.
    United States v. Wise, 
    515 F.3d 207
    , 217-18 (3d Cir. 2008). We review a district court‟s
    legal interpretation of the Guidelines de novo. United States v. Grier, 
    475 F.3d 556
    , 561-
    68 (3d Cir. 2007) (en banc). District courts make sentencing-related factual findings by a
    preponderance of the evidence standard. United States v. Fisher, 
    502 F.3d 293
    , 307 (3d
    7
    Cir. 2007). Accordingly, “if the asserted procedural error is purely factual, our review is
    highly deferential and we will conclude there has been an abuse of discretion only if the
    district court‟s findings are clearly erroneous.” 
    Wise, 515 F.3d at 217
    .
    A
    Henry argues that the District Court erred by using the threats to the prosecutor as
    the basis for an obstruction of justice enhancement under USSG § 3C1.1. We disagree.
    In fact, the District Court did not impose an enhancement for obstruction of justice
    under USSG § 3C1.1 based on Henry‟s threat against the prosecutor. Instead, it imposed
    a two-level upward departure under USSG § 5K2.0 for that threat. The District Court
    explicitly predicated the obstruction of justice enhancement on Henry‟s attempt to
    convince Niblack to file a false police report. Supp. App. 339, 343. This was not error.
    Nonetheless, Henry argues that the District Court erred because it found that the threat
    against the prosecutor could support an obstruction of justice enhancement, even absent
    evidence that Henry intended it to be communicated to the prosecutor, thereby
    influencing or obstructing her prosecution of him.
    We have not addressed whether USSG § 3C1.1 requires a threat to be
    communicated to the intended victim or the related question of what constitutes evidence
    of intent for the enhancement. Other circuit courts of appeals are split on the issue. See
    United States v. Brooks, 
    957 F.2d 1138
    , 1150-51 (4th Cir. 1992) (holding that the
    enhancement “requires that the defendant either threaten the codefendant, witness, or
    juror in his or her presence or issue the threat in circumstances in which there is some
    8
    likelihood that the codefendant, witness, or juror will learn of the threat.”); United States
    v. Searcy, 
    316 F.3d 550
    , 552-53 (5th Cir. 2002) (joining the Second, Eighth, Ninth, and
    Eleventh Circuits in holding that a threat need not be directly communicated to the victim
    to support an enhancement). In this appeal, where the enhancement was not even applied
    based on the threat, we have no occasion to resolve these questions.
    B
    Second, Henry argues that the District Court imposed the enhancement for the
    threat based on the same conduct which formed the basis of another enhancement, namely
    the four-level enhancement for “possess[ing] or transferr[ing] any firearm or ammunition
    with knowledge, intent, or reason to believe that it would be used or possessed in
    connection with another felony offense.” USSG § 2K2.1(b)(5). This argument fails for
    three reasons, two of which are fact-based and one of which is a question of law. First,
    the District Court imposed the § 2K2.1 enhancement both because of the threat to the
    prosecutor and because Henry had reason to believe that the weapons would be used in
    connection with another felony offense, namely another robbery with or by Andre. Supp.
    App. 315. Second, possessing or transferring a weapon with knowledge that it will be
    used in a felony is not the same conduct as making a threat to use that weapon. Finally,
    “[o]nly when the Guidelines explicitly prohibit double counting will it be impermissible
    to raise a defendant‟s offense level under one provision when another offense Guideline
    already takes into account the same conduct.” 
    Fisher, 502 F.3d at 309
    . Accordingly, the
    District Court did not err in imposing a two-level upward departure under USSG § 5K2.0
    9
    for Henry‟s threat to the prosecutor along with the other enhancements.1
    III
    For the foregoing reasons, we will affirm the District Court‟s judgment of
    sentence.
    1
    Having found no procedural error in the District Court‟s Guidelines calculations,
    Henry‟s substantive unreasonableness argument necessarily fails as it is premised on his
    claim that his offense level was calculated improperly.
    10
    

Document Info

Docket Number: 08-1757

Citation Numbers: 425 F. App'x 116

Judges: Barry, Hardiman, Nygaard

Filed Date: 4/26/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024