United States v. Carl Cutro , 458 F. App'x 284 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4486
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARL CUTRO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
Senior District Judge. (3:10-cr-00034-nkm-1)
Submitted: September 8, 2011 Decided: December 20, 2011
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. Timothy J. Heaphy,
United States Attorney, Roanoke, Virginia; Ronald M. Huber,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carl Cutro challenges both a two-level obstruction
enhancement and a denial of a two-level acceptance of
responsibility reduction of his sentence stemming from his
assault on a government informant Cutro believed provided
information leading to his arrest. For the reasons that follow,
we affirm.
I.
A.
During the summer of 2010, Cutro was under
investigation for theft of guns and merchandise from a Greene
County, Virginia pawnshop. At the same time, Keith Marks--a
friend of Cutro’s--was cooperating with a local drug task force,
serving as a confidential informant and making undercover buys.
On August 31, 2010, Cutro was arrested and charged
with being a felon in possession of a firearm. After his
arrest, Cutro admitted to his involvement in various gun thefts.
During questioning, Cutro was asked about certain sawed-off
shotguns that he and Marks had attempted to sell. The question
led Cutro to conclude that Marks had been cooperating with
authorities.
On September 27, 2010, Cutro pleaded guilty to three
charges: being a felon in possession of a firearm, in violation
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of 18 U.S.C. § 922(g)(1) (Count One); the theft of firearms from
a Federal Firearms Licensee, in violation of 18 U.S.C. § 922(u)
(Count Two); and the interstate transportation of stolen
merchandise, in violation of 18 U.S.C. § 2314 (Count Three).
While awaiting sentencing, Cutro was confined at the Central
Virginia Regional Jail in the Western District of Virginia,
where Marks was also being held. Cutro was able to enter
Marks’s cellblock and assault him. Marks later told
investigators that during the assault, Cutro repeatedly said,
“You had better not testify against me.” S.J.A. 107. When
investigators subsequently interviewed Cutro he admitted that he
gained access to Marks’s cellblock by falsely telling a jail
guard that he belonged there. Cutro also admitted that he
struck Marks, causing him to fall to the ground, and continued
to assault Marks until help arrived.
On November 10, 2010, a federal grand jury returned a
two-count indictment, charging Cutro with causing bodily injury
to Marks with the intent to retaliate against him for
information he provided to law enforcement, in violation of 18
U.S.C. 1513(b)(2) (Count One); and assault with the intent to
influence, delay, and prevent testimony of Marks in an official
proceeding, in violation of 1512(a)(2)(A) (Count Two).
On March 7, 2011, Cutro pleaded guilty to Count One in
exchange for the dismissal of Count Two. The plea agreement
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provided that Cutro would be incarcerated for 24 months on Count
One.
B.
On April 18, 2011, a combined sentencing hearing was
held before the district court where Cutro was to be sentenced
on the original firearms convictions and the retaliation
conviction. For the firearms convictions, the district court
determined Cutro’s criminal history category to be IV and
calculated his offense level as 24. This offense level included
a two-level enhancement for obstruction of justice for Cutro’s
attack on Marks. Also as a result of the attack, Cutro was
denied a reduction in his offense level for acceptance of
responsibility. Cutro’s sentencing guidelines range for the
firearms convictions was between 77 and 96 months’ imprisonment.
The district court sentenced Cutro to 84 months’ imprisonment on
the firearms convictions.
For the retaliation conviction, Cutro was sentenced to
24 months incarceration, pursuant to the plea agreement, to run
consecutively with the sentence on the firearms convictions.
This appeal followed.
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II.
The issues before us on appeal are whether the
district court erred in imposing a two-level enhancement for
obstruction of justice and denying Cutro a two-level adjustment
for acceptance of responsibility in calculating his offense
level for the firearms convictions. We consider each issue in
turn.
A.
We first consider Cutro’s argument that the district
court erred in imposing a two-level enhancement for obstruction
of justice in calculating his guidelines range for the firearms
conviction. The district court’s ultimate determination of
whether particular conduct constitutes obstruction of justice
pursuant to U.S.S.G. § 3C1.1 is a legal question we review de
novo. United States v. Saintil, 910 F.2d 1231, 1232 (4th Cir.
1990). We review the district court’s underlying factual
findings for clear error. United States v. Daughtrey, 874 F.2d
213, 217 (4th Cir. 1989). However, where, as here, the
defendant failed to object to the enhancement in the district
court, this court reviews for plain error. United States v.
Wells, 163 F.3d 889, 900 (4th Cir. 1998).
Cutro challenges the two-level increase because he had
already pleaded guilty on the firearms charges--all the charges
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for which Marks could have been a witness. Because Marks could
no longer be a witness against him, Curtro argues, the assault
did not obstruct justice.
A defendant may receive a two-point enhancement to his
offense level if he obstructs or impedes justice pursuant to
U.S.S.G § 3C1.1, which states:
If (A) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administration
of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to
(i) the defendant’s offense of conviction and any
relevant conduct; or (ii) a closely related offense,
increase the level by 2 levels.
Application Note 3 of § 3C1.1 states:
Obstructive conduct can vary widely in nature. . . .
Application Note 4 sets forth examples of the types of
conduct to which this adjustment is intended to apply.
Application Note 5 sets forth examples of less serious
forms of conduct to which this enhancement is not
intended to apply. . . . Although the conduct to
which this adjustment applies is not subject to
precise definition, comparison of the examples set
forth in Application Notes 4 and 5 should assist the
court in determining whether application of this
adjustment is warranted in a particular case.
The examples in note 4 include “threatening, intimidating, or
otherwise unlawfully influencing a . . . witness. . . or
attempting to do so,” and “other conduct prohibited by
obstruction of justice provisions under Title 18, United States
Code (e.g., 18 U.S.C. §§ 1510, 1511).” U.S.S.G. § 3C1.1 n.4(A),
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(I) (2011). The examples in note 5 consist of various types of
false statements and fleeing from arrest.
Comparing the examples of conduct to which the
enhancement applies to the examples of conduct to which the
enhancement does not apply, we conclude that Cutro’s assault on
Marks subjects him to enhancement under § 3C1.1. First, the
evidence shows that Cutro assaulted Marks because Marks was a
potential witness against him. 1 This behavior constitutes an
attempt to unlawfully influence a witness. Second, for the
assualt on Marks, Cutro pleaded guilty to violating 18 U.S.C.
1513--retaliating against a witness--one of the “obstruction of
justice provisions” referred to in note 4. 2 Accordingly, we find
1
It is of no moment that the assault took place after Cutro
was convicted of the crimes for which Marks could be a witness
to. Indeed, the guidelines specifically contemplate that the
enhancement would be applied to activity taking place after
conviction. See U.S.S.G. § 3C1.1 (covering activity that
relates “to the investigation, prosecution, or sentencing”
(emphasis added)). In addition, there is always the possibility
that Marks could be called to testify later should Cutro’s
convictions be vacated. Cutro appears to have considered such a
possibility when he said to Marks, while striking him, “You had
better not testify against me.”
2
In making a similar argument, the government quotes the
guidelines as stating that obstruction of justice includes
“conduct prohibited by 18 U.S.C. §§ 1501-1516.” Appellee’s Br.
10. We could, at first, not locate the quoted language in §
3C1.1. After some investigation, we discovered why: the quoted
language was removed from the guidelines by amendment in 1997.
See U.S.S.G. Appendix C n.566. We take this opportunity to
remind the government of the importance of accurate citation.
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no error in the district court’s application of the obstruction
of justice enhancement.
B.
We next consider Cutro’s argument that the district
court committed procedural error by refusing to grant Cutro a
two-level reduction for acceptance of responsibility in
calculating his guidelines range for the firearm convictions.
This challenge is subject to de novo review. See United States
v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).
Cutro argues that the district court committed
procedural error by concluding that it was precluded from
simultaneously imposing both acceptance of responsibility and
obstruction of justice adjustments. This argument is without
merit. Although it would have been error for the district court
to find itself so precluded--see U.S.S.G. § 3E1.1(a) n.4; United
States v. Hargrove, 478 F.3d 195, 202 (4th Cir. 2007)--Cutro
points to nothing in the record--nor do we find anything on
independent review--to suggest that the district court came to
any such conclusion. Accordingly, we affirm the district
court’s denial of an acceptance of responsibility adjustment.
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III.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
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