United States v. Hughes ( 2005 )

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FILED
March 8, 2005
No. 03-4172
CR-02-65-PJM
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DAVID C. HUGHES
Defendant - Appellant
--------------------
O R D E R
--------------------
Panel rehearing of this case is granted at the direction
of the Court.
Entered for a panel composed of Chief Judge Wilkins,
Judge Traxler, and Judge Gregory.
For the Court,
/s/ Patricia S. Connor
_________________________
CLERK
Rehearing granted, March 8, 2005
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4172
DAVID C. HUGHES,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-02-65-PJM)
Argued: October 29, 2004
Decided: January 24, 2005
Before WILKINS, Chief Judge, and TRAXLER and
GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded with instructions by
published opinion. Chief Judge Wilkins wrote the opinion, in which
Judge Traxler and Judge Gregory joined.
COUNSEL
ARGUED: William Collins Brennan, Jr., BRENNAN, TRAINOR,
BILLMAN & BENNETT, L.L.P., Upper Marlboro, Maryland, for
Appellant. Stuart A. Berman, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Mary-
land, for Appellee. ON BRIEF: Thomas M. DiBiagio, United States
Attorney, Baltimore, Maryland, for Appellee.
2 UNITED STATES v. HUGHES
OPINION
WILKINS, Chief Judge:
David C. Hughes appeals his convictions for five counts of bank-
ruptcy fraud and perjury and his subsequent sentence. We affirm
Hughes’ convictions. However, in light of United States v. Booker,
No. 04-104, 2005 WL 50108 (U.S. Jan. 12, 2005),1 we find plain error
in sentencing, exercise our discretion to notice the error, vacate the
sentence, and remand to the district court for resentencing consistent
with the remedial scheme set forth in Justice Breyer’s opinion for the
Court in Booker. See Booker, Opinion of Justice Breyer for the Court
at 16-17.
I.
In an effort to avoid foreclosure on her Virginia townhouse,
Hughes’ wife, Norma Gerstenfeld, filed for Chapter 11 bankruptcy
protection in October 1997. Because Gerstenfeld suffered from a
physical disability, Hughes assisted her in nearly every step of the
bankruptcy proceedings. The actions giving rise to Hughes’ convic-
tions began when Hughes assisted Gerstenfeld in filing schedules
with the bankruptcy court, under penalty of perjury, that understated
the value of her personal property by several hundred thousand dol-
lars. Then, without permission from the bankruptcy trustee, Hughes
arranged with auction houses in Maryland and New York for the
appraisal and sale of some of Gerstenfeld’s most valuable assets. On
two subsequent occasions while under oath before the bankruptcy
court, Hughes testified falsely that he had not authorized the sale of
Gerstenfeld’s property by the auction houses.
Hughes was charged with three counts of bankruptcy fraud, see 18
U.S.C.A. § 152 (West 2000), and two counts of perjury, see 18
U.S.C.A. § 1623(a) (West 2000). A jury returned guilty verdicts on
all five counts. At sentencing, the district court grouped the five
counts together pursuant to United States Sentencing Guidelines Man-
ual § 3D1.2(c) (2000) and calculated the sentence as follows:
1
Consolidated with United States v. Fanfan, No. 04-105 (U.S. Jan. 12,
2005).
UNITED STATES v. HUGHES 3
Base offense level for fraud, § 2F1.1(a): 6
Enhancement for loss greater than $200,000,
§ 2F1.1(b)(1)(I): +8
Enhancement for more than minimal planning,
§ 2F1.1(b)(2)(A): +2
Enhancement for commission of offense during
bankruptcy proceeding, § 2F1.1(b)(4)(B): +2
Enhancement for abuse of position of trust,
§ 3B1.3: +2
Enhancement for obstruction of justice,
§ 3C1.1: +2
Final Offense Level: 22
The enhancements to Hughes’ sentence were based upon facts found
by the district court, not by the jury.2 Based on an Offense Level of
22 and a Criminal History Category of I, the court sentenced Hughes
to 46 months in prison. Hughes now appeals.
II.
Hughes first argues that the evidence against him was insufficient
to support his convictions on the first three counts in the indictment,
namely for making false statements in bankruptcy, see 18 U.S.C.A.
§ 152(3); concealing assets, see id. § 152(1); and fraudulently trans-
ferring assets, see id. § 152(7). "In evaluating the sufficiency of the
evidence to support a criminal conviction, we must determine—
viewing the evidence and all of the inferences reasonably to be drawn
from it in the light most favorable to the Government—whether a rea-
sonable trier of fact could have found the defendant guilty beyond a
2
The only exception to this statement is the enhancement for commis-
sion of the offense during a bankruptcy proceeding, see § 2F1.1(b)(4)(B).
Hughes does not challenge this enhancement on appeal.
4 UNITED STATES v. HUGHES
reasonable doubt." United States v. Rahman, 83 F.3d 89, 93 (4th Cir.
1996).
To be convicted under § 152(1), (3), and (7), a defendant must be
proven to have acted "knowingly and fraudulently." 18 U.S.C.A.
§ 152(1), (3), (7). Hughes contends that the Government failed to
prove that he acted fraudulently because it failed to present evidence
that he intended to deceive any creditor, trustee, or bankruptcy judge.
See United States v. Sabbeth, 262 F.3d 207, 217 (2d Cir. 2001) (hold-
ing that to sustain convictions under § 152, government must prove
defendant acted with "intent to deceive"); United States v. Gellene,
182 F.3d 578, 586-87 (7th Cir. 1999) (same). He argues that his dis-
closure of a trust held for Gerstenfeld’s benefit and valued at approxi-
mately $5 million removed any motivation he might have had to
conceal other personal assets since the disclosure enabled the estate
to pay all creditors in full. What Hughes fails to acknowledge is that
the Government presented evidence that Gerstenfeld lacked authority
to liquidate the trust and instead was at the mercy of the trustee, who
had discretion over the trust disbursements. Indeed, it was not clear
at the time of the alleged concealment that the reorganization plan
would provide for full payment to all creditors. A reasonable jury thus
could have concluded that Hughes had ample motive and intent to
deceive the creditors and the bankruptcy court. We therefore conclude
that the evidence against Hughes was sufficient to support the bank-
ruptcy fraud convictions.
III.
Next, Hughes argues that the district court violated his Sixth
Amendment rights by imposing a sentence exceeding the maximum
authorized by the jury findings alone. In light of Booker, we conclude
that the district court plainly erred in this regard.3 Accordingly, we
vacate the sentence and remand to the district court for resentencing
consistent with the remedial scheme set forth in Justice Breyer’s opin-
ion for the Court in Booker. See Booker, Opinion of Justice Breyer
for the Court at 16-17.
3
We of course offer no criticism of the district judge, who followed the
law and procedure in effect at the time of Hughes’ sentencing.
UNITED STATES v. HUGHES 5
A.
For almost two decades, sentences for federal offenses have been
imposed pursuant to the Federal Sentencing Guidelines, a regime
drafted and revised by the United States Sentencing Commission at
the direction of Congress. See generally Sentencing Reform Act of
1984, codified as amended at 18 U.S.C.A. § 3551 et seq. (West 2000
& Supp. 2004) and at 28 U.S.C.A. §§ 991-998 (West 1993 & Supp.
2004). Designed to facilitate uniformity in sentencing by accounting
for the offense of conviction, the "real conduct" underlying the
offense, and the individual characteristics of each defendant, the
guidelines prescribe ranges of sentences that were generally binding
on the district courts. See 18 U.S.C.A. § 3553(b)(1). After a defendant
was convicted, the guidelines required the district court to make a
series of factual findings about the characteristics of the defendant
and of the offense, calculating the final sentence using the facts found
by the jury and the facts found independently by the court prior to
sentencing. Only under very limited circumstances were courts per-
mitted to depart from the ranges prescribed by the guidelines. See id.(requiring a district court to sentence within the guideline range "un-
less the court finds that there exists an aggravating or mitigating cir-
cumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the
guidelines"); United States v. Fenner, 147 F.3d 360, 363 (4th Cir.
1998).
In Booker, the Supreme Court ruled that the Sixth Amendment is
violated when a district court, acting pursuant to the Sentencing
Reform Act and the guidelines, imposes a sentence greater than the
maximum authorized by the facts found by the jury alone. See
Booker, Opinion of Justice Stevens for the Court at 20. The Court
noted that by virtue of § 3553(b)(1), "[t]he Guidelines as written . . .
are not advisory; they are mandatory and binding on all judges" and
therefore "have the force and effect of laws." Id. at 9. In light of the
binding nature of the federal regime, the Court found no distinction
of constitutional significance between the guidelines and the state
sentencing regime it evaluated and found wanting in Blakely v. Wash-
ington, 124 S. Ct. 2531 (2004). See id. at 11. The Court concluded
that enhancing sentences based on facts found by the court alone and
not by the jury violated the Sixth Amendment imperative that "[a]ny
6 UNITED STATES v. HUGHES
fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt." Id. at 20 (citing
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
Having determined that this feature of the federal sentencing
regime was unconstitutional, the Court next decided upon an appro-
priate remedial scheme that would best effectuate Congress’ intent in
passing the Sentencing Reform Act in light of the Court’s constitu-
tional holding. See Booker, Opinion of Justice Breyer for the Court
at 2. Rejecting a solution that would have preserved the mandatory
nature of the guidelines while grafting upon them a requirement that
all facts providing the basis for enhancements be found by a jury, see
id. at 3, 5-6, the Court ruled that Congress would have preferred a
solution that rendered the guidelines advisory and restored discretion
to courts to impose sentences within the range prescribed by the stat-
utes of conviction, see id. at 22, as long as those sentences are reason-
able, see id. at 18. The Court therefore severed and excised the
provisions of the Sentencing Reform Act that mandated sentencing
and appellate review in conformance with the guidelines, see id. at 16
(severing and excising 18 U.S.C.A. § 3553(b)(1) and 18 U.S.C.A.
§ 3742(e)), thereby rendering the guidelines "effectively advisory," id.
at 2.
In the wake of Booker, therefore, the discretion of a sentencing
court is no longer bound by the range prescribed by the guidelines.
Nevertheless, a sentencing court is still required to "consult [the]
Guidelines and take them into account when sentencing," id. at 22.
Consistent with the remedial scheme set forth in Booker, a district
court shall first calculate (after making the appropriate findings of
fact) the range prescribed by the guidelines. Then, the court shall con-
sider that range as well as other relevant factors set forth in the guide-
lines and those factors set forth in § 3553(a) before imposing the
sentence. See id. at 16-17. If the court imposes a sentence outside the
guideline range, it should explain its reasons for doing so.4 In light of
4
Even the dissent in Booker, uncontradicted by the opinion of the
Court, acknowledged the "surviving requirement that the court set forth
UNITED STATES v. HUGHES 7
the excision of § 3742(e) by the Supreme Court, we will affirm the
sentence imposed as long as it is within the statutorily prescribed
range, see Apprendi, 530 U.S. at 490, and is reasonable, see Booker,
Opinion of Justice Breyer for the Court at 18.
The Booker Court concluded that this remedial scheme should
apply not only to those defendants, like Booker, whose sentences had
been imposed in violation of the Sixth Amendment, but also to those
defendants, like Fanfan, who had been sentenced under the mandatory
regime without suffering a constitutional violation. See id. at 25 (stat-
ing that Fanfan’s sentence did not violate the Sixth Amendment but
noting that "the Government (and the defendant should he so choose)
may seek resentencing under the system set forth in today’s opin-
ions"); id. ("[W]e must apply today’s holdings—both the Sixth
Amendment holding and our remedial interpretation of the Sentencing
Act—to all cases on direct review.").
B.
Hughes’ sentence exceeded the maximum sentence then authorized
by the facts found by the jury alone, in violation of Booker. However,
Hughes raised this issue for the first time on appeal. Because this
issue was not advanced in the district court, we review the district
court decision for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). Notwithstanding the
heavy burden that a defendant faces when alleging plain error in sen-
tencing, we conclude that the district court plainly erred in imposing
a sentence on Hughes that exceeded the maximum allowed based on
the facts found by the jury alone.
‘the specific reason for the imposition of a sentence different from that
described’ in the Guidelines." Booker, Dissenting Opinion of Justice
Scalia at 3 (quoting 18 U.S.C.A. § 3553(c)(2)). This requirement, from
§ 3553(c)(2), was not excised by Booker, and it continues to govern sen-
tencing courts.
8 UNITED STATES v. HUGHES
1.
"In reviewing for plain error, our initial inquiry is whether an error
occurred." United States v. Hastings, 134 F.3d 235, 239 (4th Cir.
1998). In Booker, the Court ruled that a sentence exceeding the maxi-
mum allowed based only on the facts found by the jury violates the
Sixth Amendment. See Booker, Opinion of Justice Stevens for the
Court at 20. Here, under the mandatory guideline regime in existence
at the time of sentencing, that maximum would have been calculated
according to an Offense Level of 10 (corresponding to a prescribed
range of 6 to 12 months’ imprisonment), which is the maximum
authorized by the facts found by the jury.5 The imposition of a 46-
month sentence, in part based on facts found by the judge, therefore
constituted error.
2.
"Next, the error must be plain." Hastings, 134 F.3d at 239. For pur-
poses of plain-error review, "‘[p]lain’ is synonymous with ‘clear’ or,
equivalently, ‘obvious.’" Olano, 507 U.S. at 734. An error is plain
"where the law at the time of trial was settled and clearly contrary to
the law at the time of appeal." Johnson v. United States, 520 U.S. 461,
468 (1997); accord United States v. David, 83 F.3d 638, 645 (4th Cir.
1996) (holding that an error is plain when "an objection at trial would
have been indefensible because of existing law, but a supervening
decision prior to appeal reverses that well-settled law"). When
Hughes was sentenced, any claim that imposition of a sentence
greater than the maximum authorized under the guidelines by the
facts found by the jury alone would violate the Sixth Amendment was
foreclosed by circuit precedent. See United States v. Kinter, 235 F.3d
192, 199-202 (2000). Booker has now abrogated our previously set-
tled law. The error committed by the district court in sentencing
Hughes was therefore plain.
5
Hughes conceded that the jury-found facts authorized the enhance-
ment under U.S.S.G. § 2F1.1(b)(4)(B). That provision requires a two-
level increase or a minimum Offense Level of 10.
UNITED STATES v. HUGHES 9
3.
"Third, [Hughes] must establish that the error affected his substan-
tial rights, i.e., that it was prejudicial." Hastings, 134 F.3d at 240. To
demonstrate that the error was prejudicial, Hughes must show that
"the error actually affected the outcome of the proceedings." Id. Here,
the error alleged by Hughes was that the district court imposed a sen-
tence greater than the maximum authorized by the facts found by the
jury alone. Had the district court imposed a sentence within that maxi-
mum, Hughes’ sentence would have been calculated according to an
Offense Level of 10 (corresponding to a prescribed range of 6 to 12
months’ imprisonment)—markedly lower than the final Offense
Level of 22 (corresponding to a prescribed range of 41 to 51 months’
imprisonment) used by the district court.6 We therefore conclude that
the error affected Hughes’ substantial rights. Accord United States v.
Promise, 255 F.3d 150, 160 (4th Cir. 2001) (en banc) (holding that
Apprendi error resulting in increased sentence affected defendant’s
substantial rights).
4.
Finally, it remains within our discretion to determine whether the
district court error warrants reversal. "Our discretion is appropriately
exercised only when failure to do so would result in a miscarriage of
justice, such as when the defendant is actually innocent or the error
seriously affects the fairness, integrity or public reputation of judicial
6
The question for purposes of determining whether Hughes was preju-
diced is not what the district court would have done had it imposed a sen-
tence in the exercise of its discretion pursuant to § 3553(a). Hughes does
not argue that the district court erred by failing to regard the guidelines
as advisory in sentencing him. Rather, Hughes argues that the district
court erred by imposing a sentence that was greater than the maximum
authorized by the facts found by the jury alone. Therefore, the prejudice
inquiry concerns what sentence the court would have imposed had it not
committed the error of going beyond the facts found by the jury in
imposing a sentence under the mandatory guideline regime then in exis-
tence. This case does not present the question of whether a defendant
suffers prejudice because a sentencing court fails to treat the guidelines
as advisory in determining the sentence.
10 UNITED STATES v. HUGHES
proceedings." Hastings, 134 F.3d at 244 (alteration & internal quota-
tion marks omitted). We have no difficulty concluding that an exer-
cise of our discretion is warranted here.
Booker wrought a major change in how federal sentencing is to be
conducted. As the law now stands, sentencing courts are no longer
bound by the ranges prescribed by the guidelines. As long as a sen-
tence falls within the statutorily prescribed range, the sentence is now
reviewable only for reasonableness. Under the record before us,7 to
leave standing this sentence imposed under the mandatory guideline
regime, we have no doubt, is to place in jeopardy "the fairness, integ-
rity or public reputation of judicial proceedings." Hastings, 134 F.3d
at 244 (internal quotation marks omitted). We therefore exercise our
discretion to correct this plain error.8
7
The record does not provide any indication of what sentence the dis-
trict court would have imposed had it exercised its discretion under
§ 3553(a), treating the guidelines as merely advisory. Cf. United States
v. Hammoud, 381 F.3d 316, 354 (4th Cir. 2004) (en banc) (recommend-
ing "that district courts within the Fourth Circuit announce, at the time
of imposing a guidelines sentence, a sentence pursuant to 18 U.S.C.A.
§ 3553(a), treating the guidelines as advisory only"). We are not called
upon today to decide whether we would notice the error had the district
court indicated that it would have imposed the same sentence in the exer-
cise of its discretion.
8
In determining whether the exercise of our discretion is warranted, it
is not enough for us to say that the sentence imposed by the district court
is reasonable irrespective of the error. The fact remains that a sentence
has yet to be imposed under a regime in which the guidelines are treated
as advisory. To leave standing this sentence simply because it may hap-
pen to fall within the range of reasonableness unquestionably impugns
the fairness, integrity, or public reputation of judicial proceedings.
Indeed, the determination of reasonableness depends not only on an eval-
uation of the actual sentence imposed but also the method employed in
determining it.
Moreover, declining to notice the error on the basis that the sentence
actually imposed is reasonable would be tantamount to performing the
sentencing function ourselves. This is so because the district court was
never called upon to impose a sentence in the exercise of its discretion.
That the particular sentence imposed here might be reasonable is not to
say that the district court, now vested with broader sentencing discretion,
UNITED STATES v. HUGHES 11
IV.
As noted in Part III.A., the first step for sentencing courts is to
determine the range prescribed by the guidelines after making such
findings of fact as are necessary. Here, the district court has already
determined that the guideline range for Hughes’ convictions is 41 to
51 months (based on an Offense Level of 22 and a Criminal History
Category of I). Hughes challenges this calculation on a number of
grounds. Because the district court must consider the correct guideline
range before imposing a sentence on remand, the same calculation
issues already raised by Hughes are likely to arise again. We therefore
take this opportunity to address them.9
A.
Hughes first argues that the district court erred by applying an
eight-level increase to his offense level to account for an intended loss
of $343,696. See U.S.S.G. § 2F1.1(b)(1)(I) (calling for an eight-level
enhancement for losses between $200,000 and $350,000). Hughes
argues that this enhancement was improper because there was no
actual loss to the creditors. He correctly notes that under the reorgani-
zation plan, all of the creditors were to be paid in full. He also asserts
that his intention in transferring Gerstenfeld’s personal property to the
auction houses—without permission of the bankruptcy trustee—"was
to sell it to raise money to pay the creditors sooner—not to harm
them." Br. of Appellant at 26.
We review de novo the district court interpretation of what consti-
tutes "loss" under § 2F1.1 of the guidelines. See United States v. Mil-
ler, 316 F.3d 495, 498 (4th Cir. 2003). Once the correct interpretation
could not have imposed a different sentence that might also have been
reasonable. We simply do not know how the district court would have
sentenced Hughes had it been operating under the regime established by
Booker.
9
While we address Hughes’ challenges here, we do not hold that in
every case involving a Booker issue, this court must first address alleged
calculation errors before vacating and remanding for resentencing in
light of Booker.
12 UNITED STATES v. HUGHES
is established, we accept the district court calculation of loss absent
clear error. See id. at 503.
"Loss under § 2F1.1(b)(1) is the actual, probable, or intended loss
to the victims." United States v. Parsons, 109 F.3d 1002, 1004 (4th
Cir. 1997) (emphasis added) (internal quotation marks & alteration
omitted). The intended loss "will be used if it is greater than the actual
loss," U.S.S.G. § 2F1.1, comment. (n.8), "even if this exceeds the
amount of loss actually possible, or likely to occur, as a result of the
defendant’s conduct," Miller, 316 F.3d at 502. Thus, in determining
the amount of loss in a bankruptcy fraud case, courts may look to "the
amount of loss [the defendant] intended to cause by concealing
assets," rather than "the amount of loss creditors actually suffered."
United States v. Walker, 29 F.3d 908, 913 n.4 (4th Cir. 1994).
The district court observed that at the time of the concealment it
was far from clear that there would be sufficient assets to pay the
creditors in full. This, to the district court, implied that Hughes
"wished to preserve [the concealed] assets and not have them taken
potentially in litigation or, if need be, sold and the assets used for per-
sonal reasons and not made available." J.A. 323-24. On that basis, the
district court calculated the amount of intended loss as the value of
the assets concealed by Hughes—$343,696. We find no error in this
conclusion and affirm the determination of the district court on this
issue.
B.
Next, Hughes asserts that the district court erred in applying a two-
level enhancement for "more than minimal planning." U.S.S.G.
§ 2F1.1(b)(2)(A). "[M]ore than minimal planning" is defined in part
as "more planning than is typical for commission of the offense in a
simple form." § 2F1.1, comment. (n.2) (incorporating by reference
§ 1B1.1, comment. (n.1(f))).
The district court found that Hughes’ conduct in concealing his
wife’s assets met this standard based on the following: "[H]e engaged
an appraiser. He arranged for auction houses. He actually transferred
the assets, some of them at least himself, attended the auctions . . . .
[H]e was clearly involved in trying to get these assets sold and get
UNITED STATES v. HUGHES 13
proceeds, again, all the time, not disclosing." J.A. 330. Hughes argues
that his conduct involved nothing more than moving the assets from
his home to the auction house and having them appraised: "There was
a simple transfer—there was a simple appraisal," he asserts. Br. of
Appellant at 29.
We review the district court conclusion that Hughes’ offense
involved more than minimal planning for clear error. See United
States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995). Given the multiple
steps taken by Hughes to have Gerstenfeld’s assets transferred to the
auction houses and appraised, we conclude that the district court did
not clearly err in applying the enhancement for more than minimal
planning.
C.
Finally, Hughes argues that the district court erred in applying a
two-level enhancement for obstruction of justice. We find no merit to
any of Hughes’ arguments on this issue.
1.
Hughes first contends that the enhancement to his bankruptcy fraud
offense level constituted impermissible double-counting because his
false statements before the bankruptcy court were part and parcel of
his bankruptcy fraud offenses. As noted above, Hughes was convicted
of three counts of bankruptcy fraud and two counts of perjury. Rather
than imposing separate sentences for the bankruptcy fraud and perjury
offenses, the district court grouped the offenses together, see U.S.S.G.
§ 3D1.2, imposed one sentence for the bankruptcy fraud offenses, and
accounted for the perjury offenses by applying a two-level enhance-
ment to the bankruptcy fraud offense level. No independent sentence
was imposed for the perjury convictions. See id. § 3C1.1, comment.
(n.8).10
10
In relevant part, § 3C1.1, comment. (n.8) provides:
If the defendant is convicted both of an obstruction offense . . .
and an underlying offense (the offense with respect to which the
obstructive conduct occurred), the count for the obstruction
14 UNITED STATES v. HUGHES
An enhancement for obstruction of justice constitutes impermissi-
ble double-counting only when the conduct giving rise to the
enhancement is identical to the conduct giving rise to the underlying
conviction. Compare United States v. Clark, 316 F.3d 210, 213 (3d
Cir. 2003) (rejecting enhancement when the obstruction—providing
a forged birth certificate to authorities—was identical to the offense
of falsely representing oneself as a United States citizen), and United
States v. Lamere, 980 F.2d 506, 516-17 (8th Cir. 1992) (rejecting
enhancement when the obstruction—concealing counterfeit money
from investigators—was identical to the offense of possessing or con-
cealing counterfeit money), with United States v. Oladipupo, 346 F.3d
384, 385-86 (2d Cir. 2003) (per curiam) (affirming enhancement
when the obstruction—filling out an affidavit containing a false
identity—was different from the offense of illegal reentry after depor-
tation), and United States v. Sabino, 307 F.3d 446, 451 (6th Cir.
2002) (reversing ruling that imposition of enhancement was imper-
missible double-counting when the alleged obstruction—testifying
falsely before a grand jury—did not arise from "precisely the same"
conduct as did the underlying conspiracy offense (emphasis & inter-
nal quotation marks omitted)).11 Here, the conduct giving rise to
Hughes’ bankruptcy fraud convictions included making false state-
ments on the bankruptcy schedules, concealing assets from the bank-
ruptcy trustee, and transferring assets for sale by the auction houses
without the trustee’s permission. In contrast, the conduct giving rise
offense will be grouped with the count for the underlying offense
. . . . The offense level for that group of closely related counts
will be the offense level for the underlying offense increased by
the 2-level adjustment specified by this section, or the offense
level for the obstruction offense, whichever is greater.
The district court calculation comported with these instructions.
11
See also United States v. Mutuc, 349 F.3d 930, 938 (7th Cir. 2003)
(affirming obstruction enhancement to underlying bankruptcy fraud
offense level). The facts of Mutuc are similar to those here: The defen-
dant committed perjury in the context of a bankruptcy proceeding. He
was convicted of bankruptcy fraud, and the court upheld a two-level
obstruction enhancement to account for the defendant’s perjury. How-
ever, the issue of double-counting was neither raised nor addressed by
the court, so Mutac cannot be regarded as directly on point.
UNITED STATES v. HUGHES 15
to the two-level enhancement for obstruction of justice consisted of
Hughes’ perjury before the bankruptcy court. Because the conduct
giving rise to Hughes’ bankruptcy fraud convictions was not identical
to that giving rise to the obstruction enhancement, the district court
did not err in applying the two-level enhancement under § 3C1.1.12
Additionally, we note that our conclusion is consistent with Appli-
cation Note 7 of § 3C1.1, which prohibits an obstruction enhancement
if the defendant’s underlying conviction is itself for an obstruction
offense, unless the conduct further obstructed the investigation, prose-
cution, or sentencing of the obstruction offense significantly. See
U.S.S.G. § 3C1.1, comment. (n.7). Note 7 enumerates those offenses
that are considered obstruction offenses for purposes of this limita-
tion: contempt, obstruction of justice, perjury or subornation of per-
jury, bribery of witness, failure to appear by material witness, failure
to appear by defendant, payment to witness, accessory after the fact,
or misprision of felony. See id. By enumerating a list of obstruction
offenses and prohibiting enhancements to those offenses for obstruc-
tive conduct, the guidelines appear already to account for impermissi-
ble double-counting in this context. That bankruptcy fraud is not
included in this enumerated list further supports our conclusion that
the enhancement to Hughes’ offense level did not reflect impermissi-
ble double-counting. The district court determination on this issue is
therefore affirmed.
12
We note that our decision may be in tension with the Eighth Circuit
decision in United States v. Lloyd, 947 F.2d 339 (8th Cir. 1991) (per
curiam). There, the defendant was convicted of bankruptcy fraud and
received an obstruction enhancement for concealing assets from the
bankruptcy trustee and for committing perjury during the bankruptcy
proceedings. The court of appeals reversed the enhancement because
"[t]his conduct [was] the basis for the criminal charges against Lloyd."
Lloyd, 947 F.2d at 340. It is unclear from the very brief opinion which
conduct the court was referring to as "[t]his conduct." If the court was
referring to the concealment of assets, Lloyd is in accord with the above-
cited cases, because "concealing assets" was the conduct giving rise to
Lloyd’s bankruptcy fraud conviction. Id. However, to the extent the court
was referring to the perjury, Lloyd contradicts the above cases because
the perjury was not the conduct giving rise to the bankruptcy fraud con-
viction, yet the court still found impermissible double-counting.
16 UNITED STATES v. HUGHES
2.
Hughes next asserts that his perjurious statements were made in the
bankruptcy court, not in the district court, and therefore fall outside
the scope of the "investigation, prosecution, or sentencing of the
instant offense of conviction." U.S.S.G. § 3C1.1(A) (emphasis added).
The district court rejected this narrow interpretation of § 3C1.1: "The
whole transaction involving the defendant was being investigated by
[the bankruptcy court]," and Hughes’ perjury "was part and parcel of
the whole transaction." J.A. 359-60. The conclusion of the district
court was correct. "‘[I]nstant offense’ in § 3C1.1 refers to the offense
of conviction including relevant conduct." United States v. Self,
132 F.3d 1039, 1044 (4th Cir. 1997) (emphasis added). Here, the "in-
stant offense[s]" were the bankruptcy fraud charges. Hughes’ perjuri-
ous statements before the bankruptcy court fall within the definition
of "relevant conduct" because they were "committed . . . by the defen-
dant . . . during the commission of the offense of conviction . . . or
in the course of attempting to avoid detection or responsibility for that
offense." U.S.S.G. § 1B1.3(a)(1) (defining relevant conduct). There-
fore, under Self, Hughes’ perjurious statements fall within the scope
of "the instant offense of conviction," and the district court conclusion
to that effect is affirmed. Accord United States v. Bennett, 252 F.3d
559, 566 (2d Cir. 2001) (upholding obstruction enhancement when
defendant obstructed investigation by Securities and Exchange Com-
mission that occurred before defendant was indicted).
3.
Finally, Hughes argues that his perjurious statements were not
obstructive because he never disputed the existence of the personal
assets; rather, he simply lied about authorizing their sale by the auc-
tion houses. Thus, according to Hughes, his perjurious statements did
not impede the investigation in any way. The district court disagreed,
finding that Hughes’ statements represented "willful obstruction of
justice . . . during the investigation of the instant offense of convic-
tion." J.A. 361.
We review the district court conclusion that Hughes’ statements
were obstructive for clear error. See United States v. Kiulin, 360 F.3d
456, 460 (4th Cir. 2004). Because the bankruptcy court was investi-
UNITED STATES v. HUGHES 17
gating all aspects of Gerstenfeld’s Chapter 11 petition, including the
location and value of her personal assets and whether they had been
transferred to the auction houses, we find that the conclusion of the
district court that Hughes’ perjurious statements were obstructive is
not clearly erroneous.
V.
For the reasons set forth above, we affirm Hughes’ convictions. We
also conclude that the district court did not err in its initial calculation
of the guideline range. However, in light of Booker, we vacate
Hughes’ sentence and remand for resentencing. Because we conclude
that the district court correctly determined the range prescribed by the
guidelines, on remand the court shall consider that range13 as well as
other relevant factors set forth in the guidelines and those factors set
forth in § 3553(a) before imposing the sentence.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS
13
Of course, if new circumstances have arisen or events occurred since
Hughes was sentenced that impact the range prescribed by the guide-
lines, the district court should adjust its calculation accordingly.