United States v. Dale, Jason B. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3224
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON B. DALE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 CR 40078—J. Phil Gilbert, Judge.
____________
ARGUED JUNE 4, 2007—DECIDED AUGUST 17, 2007
____________
Before RIPPLE, ROVNER and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Jason B. Dale was indicted on one
count of conspiring to manufacture and to distribute 500
grams or more of a substance containing methamphet-
amine, in violation of 21 U.S.C. §§ 841 and 846. Mr. Dale
pleaded guilty and was sentenced to 180 months’ imprison-
ment. Before this court, he contends that the district court
erred when it applied a two-level increase to his offense
level for obstruction of justice. See U.S.S.G. § 3C1.1. He
further claims that his sentence is unreasonable. For the
reasons set forth in this opinion, we affirm the judgment
of the district court.
2 No. 06-3224
I
BACKGROUND
A.
Mr. Dale and his father were involved in a conspiracy
to manufacture and to distribute methamphetamine that
lasted from July 2002 until May 2005. During that period,
Mr. Dale not only sold methamphetamine but used the
drug himself. While participating in the conspiracy,
Mr. Dale exhibited violent behavior. He threatened a
number of people with violence to avoid prosecution and
had threatened and beaten a former girlfriend whom he
suspected of cooperating with law enforcement. Addition-
ally, following an arrest for driving under the influence,
Mr. Dale had threatened to kill the arresting officer and
to rape the officer’s daughter.
In May 2005, Mr. Dale was confronted about his lifestyle
by C. Randall Shively, his then-current girlfriend’s father.
Mr. Dale left the conspiracy, and Shively took Mr. Dale into
his home. Over the next few months, Mr. Dale stopped
using methamphetamine and broke off contact with his
father. At some point, Mr. Dale began attending religious
services and substance abuse counseling meetings and had
enrolled in college classes. In November 2005, Mr. Dale
learned of a warrant for his arrest in connection with the
methamphetamine conspiracy. He surrendered to authori-
ties the following day and was released on a recognizance
bond.
B.
Mr. Dale was charged with conspiring to manufacture
and to distribute more than 500 grams of a substance
No. 06-3224 3
containing methamphetamine. In May 2006, Mr. Dale
pleaded guilty to the charge, but remained on bond
pending sentencing.
On June 30, 2006, the Probation Department issued its
presentence investigation report (“PSR”). The PSR identi-
fied Maria Winchester, Mr. Dale’s cousin, as a potential
witness against him based on an encounter in May 2005.1
On the night of July 9, 2006, while Mr. Dale remained on
bond awaiting sentencing, Mr. Dale and his brother-in-law,
Matt Carr, went to the Pasta House restaurant, where
Winchester worked. They went there in order to meet Mr.
Dale’s girlfriend and another woman. When Winchester
walked past the table where they were sitting, she heard
someone call her “snitch” or “bitch” and other profane
or otherwise derogatory names. Winchester told her
manager, Vickie Sue Niles, about the comments. Niles
approached the table to confront Mr. Dale and the others.
Mr. Dale attempted to explain his version of events, but
the confrontation soon escalated. Mr. Dale swore at
Niles and got up to leave the restaurant. Mr. Dale passed
Winchester as he left the restaurant and threatened to kill
her.
1
In that incident, Mr. Dale had visited Winchester at work
following a police raid and had tried to give her a coat to hold.
According to Winchester, Mr. Dale told her that he was afraid
that he would be arrested and he did not want the police to
seize cash in his coat. Winchester refused to take the coat, but
Mr. Dale left his coat with her anyway. Either Winchester or her
boss discovered cash and methamphetamine in the coat’s
pockets and called the police. Mr. Dale subsequently was
arrested. Following his arrest, Mr. Dale called Winchester’s
home and left threatening messages with her father.
4 No. 06-3224
Mr. Dale’s bond was revoked because of his threat to
Winchester and because he had consumed alcohol while on
bond. The Government then requested, and the Probation
Department recommended in a revised PSR, that the
district court apply § 3C1.1 and impose a two-level in-
crease in Mr. Dale’s offense level as a result of the threats
made by Mr. Dale to Winchester.
At sentencing, the district court heard testimony from a
number of individuals. Some testified about Mr. Dale’s
conduct when he was involved in the conspiracy; others
testified to the personal progress that Mr. Dale had made
since May 2005. The district court also heard testimony
from Winchester and from co-workers regarding the
incident at the Pasta House. Winchester and others testified
that, following the confrontation between Mr. Dale and
Winchester’s supervisor, Mr. Dale had threatened her life.
The district court credited this testimony and, because
Winchester had been a potential witness in Mr. Dale’s
sentencing at the time of the threat, imposed a two-level
increase in Mr. Dale’s offense level under advisory guide-
lines § 3C1.1 for obstruction of justice.
The district court also applied a two-level enhancement
for possession of a firearm in furtherance of the conspiracy
and a three-level decrease for acceptance of responsibility.
This brought Mr. Dale’s total offense level to 35.2 With
2
In arriving at Mr. Dale’s base offense level, the district court
adopted the drug quantities attributed to Mr. Dale in the PSR.
These quantities included 113.62 grams of methamphetamine
and 340.20 grams of ice. Applying the drug equivalency tables
in § 2D1.1 of the advisory guidelines, these quantities are
equivalent to 7,031.24 kilograms of marijuana. See U.S.S.G.
(continued...)
No. 06-3224 5
Mr. Dale’s criminal history category of I, this computa-
tion resulted in an advisory guidelines range of 168-210
months’ imprisonment. After considering the § 3553(a)
factors and hearing from the Government and Mr. Dale,
the court imposed a sentence of 180 months’ imprisonment.
II
DISCUSSION
Mr. Dale now appeals his sentence. He contends that the
district court erred when it imposed a two-level enhance-
ment for obstruction of justice. He further submits that the
sentence imposed was unreasonable in light of § 3553(a).
“We review the district court’s application of the Guide-
lines de novo and its factual determinations for clear
error.” United States v. Warren, 454 F.3d 752, 762 (7th Cir.
2006). We review the sentence imposed by the district
court taken as a whole for reasonableness in light of the
factors set forth in 18 U.S.C. § 3553(a). United States v.
Williams, 425 F.3d 478, 480 (7th Cir. 2005).
2
(...continued)
§ 2D1.1 Application Note 10 (providing drug equivalency
tables as a means of combining quantities of different drug
types when calculating a base offense level). The base offense
level for more than 3,000 kilograms but less than 10,000 kilo-
grams of marijuana is 34. Thus, starting from a base offense
level of 34, the district court added two levels to Mr. Dale’s
offense level for obstruction of justice and two levels for
possession of a firearm for an offense level of 38. The court then
reduced Mr. Dale’s offense level by three levels for acceptance
of responsibility to arrive at a total offense level of 35.
6 No. 06-3224
A.
Mr. Dale first asserts that the district court erred when
it applied guidelines § 3C1.1 to impose a two-level in-
crease in his offense level for obstruction of justice based
on the threat made to Winchester. After hearing testimony
regarding the events at the Pasta House on July 9, 2006,
the district court concluded that Mr. Dale had threatened
Winchester’s life and that the threat constituted an ob-
struction of justice under § 3C1.1. Mr. Dale submits that
these factual findings do not support an enhancement
for obstruction of justice under § 3C1.1 because the facts do
not demonstrate that Mr. Dale threatened Winchester
because she was a potential witness against him.
Whether a statement can constitute obstruction of justice
presents a legal interpretation of the guidelines and is
subject to plenary review. See United States v. Gibson, 155
F.3d 844, 846 (7th Cir. 1998) (“Whether a . . . statement can
constitute an express threat of death involves the legal
interpretation of a sentencing guideline which we review
de novo.”). If a statement, as a matter of law, can constitute
an obstruction of justice, the determination of whether
the statement did constitute an obstruction of justice
under the circumstances is a question of fact which
we review for clear error. See United States v. Hanhardt, 361
F.3d 382, 387 (7th Cir. 2004), vacated on other grounds,
Altobello v. United States, 543 U.S. 1097 (2005); Gibson, 155
F.3d at 846. Clear error occurs when “after reviewing the
entire evidence, we are left with the definite and firm
conviction that a mistake has been committed.” Hanhardt,
361 F.3d at 388 (citing United States v. McGill, 32 F.3d 1138,
1143 (7th Cir. 1994)).
The advisory guidelines impose a two-level enhance-
ment to a defendant’s offense level for obstruction of
justice in connection with the investigation, prosecution
No. 06-3224 7
or sentencing related to the defendant’s offense of con-
viction.3 U.S.S.G. § 3C1.1. Such obstructive conduct in-
cludes “threatening, intimidating, or otherwise unlawfully
influencing a co-defendant, witness, or juror, directly or
indirectly, or attempting to do so.” Id. Application Note
4(a). We have held that § 3C1.1 “requires specific intent
to obstruct justice,” and the burden rests on the Govern-
ment to establish such intent by a preponderance of the
evidence. United States v. Ewing, 129 F.3d 430, 434 (7th
Cir. 1997); see also United States v. Henderson, 58 F.3d 1145,
1153 (7th Cir. 1995).4 This intent requirement flows from
3
The advisory guidelines provide:
If (A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice during the course of 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 offense level by 2 levels.
U.S.S.G. § 3C1.1 (2005).
4
The Government, relying on United States v. Johnson, 46 F.3d
636 (7th Cir. 1995), submits that any time a witness or potential
witness is threatened, § 3C1.1 permits the sentencing court to
increase the defendant’s offense level for obstruction of justice.
Although some language in Johnson appears to support this
contention, see id. at 638 (“A threat to a potential witness is
sufficient to warrant an enhancement under section 3C1.1, as
long as the statement was intended to threaten, intimidate or
unlawfully influence that person.”), our cases both before and
after Johnson make clear that the burden is on the Government
to establish that the defendant acted with the specific intent to
obstruct justice. See United States v. Ewing, 129 F.3d 430, 434 (7th
(continued...)
8 No. 06-3224
the text of the guideline, which calls for an enhancement
when the defendant “willfully obstruct[s] or impede[s], or
attempt[s] to obstruct or impede, the administration of
justice during the course of the investigation, prosecution,
or sentencing of the instant offense of conviction.” U.S.S.G.
§ 3C1.1 (2005); see also United States v. Altman, 901 F.2d
1161, 1164 (2d Cir. 1990).
Mr. Dale submits that the district court erred when it
applied § 3C1.1 because the Government did not estab-
lish that he acted with specific intent. He points to the
district court’s statement at sentencing that
[a]nytime someone states [] to someone who is a
witness or potential witness or was part of the discov-
ery that provided [] the information for the govern-
ment during the investigation of the instant offense,
threatens to kill somebody, I can’t think of any[]more
obstructive behavior than that.
R.89 at 152. Standing alone, this statement suggests that
the district court believed that any threat to a potential
witness constituted obstruction, regardless of whether
4
(...continued)
Cir. 1997) (after); United States v. Henderson, 58 F.3d 1145, 1153
(after) (7th Cir. 1995); United States v. Cotts, 14 F.3d 300, 307 (7th
Cir. 1994) (before). We note that this requirement is in accord
with each of the other circuits to have addressed the issue. See,
e.g., United States v. Chavarria, 377 F.3d 475, 479 (5th Cir. 2004);
United States v. Gormley, 201 F.3d 290, 294 (4th Cir. 2000); United
States v. Parrott, 148 F.3d 629, 635 (6th Cir. 1998); United States v.
Belletiere, 971 F.2d 961, 965 (3d Cir. 1992); United States v.
Hernandez, 967 F.2d 456, 459 (10th Cir. 1992); United States v.
Watts, 940 F.2d 332, 332-33 (8th Cir. 1991); United States v.
Altman, 901 F.2d 1161, 1164 (2d Cir. 1990).
No. 06-3224 9
the statement was made with the specific intent to ob-
struct justice. However, viewing the record as a whole,
we do not believe that the district court misapprehended
the intent necessary to impose an enhancement under
§ 3C1.1.
Before ruling on the applicability of the obstruction
enhancement, the court read the full text of § 3C1.1 into the
record, including the requirement that the defendant act
willfully in order for his conduct to fall within the enhance-
ment. Because the specific intent requirement is derived
from the text of the guideline itself, see Altman, 901 F.2d at
1164, we shall infer that the district court understood that
the enhancement applied only to willful conduct. Although
the district court did not find explicitly that Mr. Dale
acted with the specific intent to obstruct justice, the
court did conclude that the threat to Winchester was
“obstruction under the guidelines.” R.89 at 153. Because
we believe that the district court understood § 3C1.1 to
require a specific intent to obstruct, the court’s conclusion
that Mr. Dale’s threat constituted obstruction under the
guidelines includes implicitly a finding that Mr. Dale
intended to obstruct justice for purposes of the advisory
guidelines.
Further, based on the evidence before the court, the
district court’s conclusion that the threat amounted to
obstruction of justice under § 3C1.1 does not constitute
clear error. At sentencing, the court heard testimony of
prior threats against Winchester by Mr. Dale and that, on
the date of the Pasta House confrontation, Mr. Dale had
received the PSI that had identified Winchester as a
potential witness against him. Further, Winchester testi-
fied at the sentencing hearing that, before the threat, Mr.
Dale had been making derogatory remarks toward her.
10 No. 06-3224
From this evidence, the court could conclude that Mr.
Dale’s comments toward Winchester before the actual
threat were intended to harass or intimidate her because of
her possible testimony. The court further could con-
clude that, after the confrontation with Niles, Mr. Dale
became angry and escalated his intimidation to a direct
threat on Winchester’s life. On this record, we are not left
“with the definite and firm conviction that a mistake
has been committed.” Hanhardt, 361 F.3d at 388 (citing
McGill, 32 F.3d at 1143). Therefore, there was no clear
error in the district court’s calculation of Mr. Dale’s
advisory guidelines range.
B.
We now turn to Mr. Dale’s assertion that the sentence
imposed by the district court was unreasonable in light
of § 3553(a).5 He contends that the sentence was unrea-
sonable because the court failed to consider sufficiently
Mr. Dale’s personal characteristics that are not accounted
for by the advisory guidelines. He further submits that
his sentence was unreasonable because the court failed
to consider adequately the reasonableness of his sentence
5
The Government asserts that, because Mr. Dale did not object
before the district court to the reasonableness of his sentence,
our review is for plain error. We have held, however, that a
defendant need not object to his sentence on the grounds that
it is unreasonable to preserve appellate review for reasonable-
ness. See United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th
Cir. 2005). Thus, failure on the part of Mr. Dale to object to his
sentence on the specific ground that it was unreasonable did
not result in forfeiture of the argument and plain error does
not apply.
No. 06-3224 11
in light of § 3553(a)’s sentencing factors or to explain
adequately its consideration of those factors.
1.
We turn first to Mr. Dale’s contention that the district
court failed to consider adequately his personal characteris-
tics not accounted for by the advisory guidelines. At
sentencing, Mr. Dale asserted that personal characteristics,
such as his socio-economic status, the fact that he had
become involved with the methamphetamine as a result of
his father, his past substance abuse and his subsequent
voluntary and “extraordinary” rehabilitation efforts war-
ranted a sentence at the low end of the advisory guidelines
range. The district court concluded that these personal
characteristics did not warrant a departure from the
guidelines and imposed a sentence in the middle of the
advisory guidelines range. Mr. Dale contends that, because
the advisory guidelines do not account for these personal
characteristics, the district court relied upon the advisory
guidelines to the exclusion of all other § 3553(a) factors.
Mr. Dale correctly states that district courts have discre-
tion to consider factors other than the advisory guidelines
when imposing a sentence. The court’s discretion in
selecting a sentence is cabined by § 3553(a), and it cannot
“import [its] own philosophy of sentencing if it is inconsis-
tent with” the § 3553(a) factors. United States v. Dean,
414 F.3d 725, 729 (7th Cir. 2005). Of course, the district
court can place significant weight on the guidelines
without rendering the resulting sentence unreasonable.6
6
Mr. Dale points to the district court’s use of the term “down-
ward departure” as evidence of the district court’s “over-
(continued...)
12 No. 06-3224
The sentence imposed must be reasonable with respect
to the factors enumerated in § 3553(a), and among
those factors is the advisory guidelines. See 18 U.S.C.
§ 3553(a)(4)(A). Indeed, the advisory guidelines themselves
“seek to embody the § 3553(a) considerations.” Rita v.
United States, 127 S. Ct. 2456, 2464 (2007); see also United
States v. Gama-Gonzalez, 469 F.3d 1109, 1110-11 (7th Cir.
2006).
Nevertheless, Mr. Dale asserts that the district court
relied on the advisory guidelines to the near-exclusion of
other factors and that this approach was no different than
treating the advisory guidelines as mandatory, thereby
violating his Sixth Amendment rights under United States
v. Booker, 543 U.S. 220 (2005). We cannot accept this argu-
ment. Judicial fact-finding at sentencing offends the Sixth
Amendment only when the applicable “law forbids a
judge to increase a defendant’s sentence unless the judge
finds facts that the jury did not find (or the offender did
not concede).” Rita, 127 S. Ct. at 2466. The Supreme Court
in Booker held that such Sixth Amendment problems arise
when a sentence “is imposed under a mandatory sen-
tencing scheme.” United States v. White, 443 F.3d 582, 592
6
(...continued)
reliance” on the guidelines in assessing his sentence in light of
the § 3553(a) factors. Although United States v. Booker, 543 U.S.
220 (2005), renders the concept of “departures” obsolete, we
have held that, unless there is reason to believe that the use of
the term “departures” made a substantive difference, there is
no error when using the term. See United States v. Rosby, 454
F.3d 670, 676-77 (7th Cir. 2006). This is particularly so when
the defendant invites the court to use the term by asking for a
“departure” in the first place, as is the case here. See id. at 677.
No. 06-3224 13
(7th Cir. 2006). However, as long as the district court treats
the guidelines as advisory, the constitutional infirmity
identified in Booker is eliminated. Id. Here, the district
court stated explicitly that it considered the guidelines
advisory. The court also stated that it had taken into
account Mr. Dale’s personal characteristics when arriving
at his sentence. Therefore, we cannot conclude that the
district court’s reliance on the advisory guidelines rendered
his sentence unreasonable.
2.
Mr. Dale next asserts that the district court failed to
account sufficiently for § 3553(a)’s sentencing factors. Post-
Booker, we require the sentencing court to follow a two-part
procedure in arriving at its sentence. United States v. Holt,
486 F.3d 997, 1007 (7th Cir. 2007). First, the court must
calculate the defendant’s advisory guidelines sentenc-
ing range. Id. Second, the court then must consider the
factors set forth in § 3553(a). Id. As already discussed, the
district court correctly calculated Mr. Dale’s advisory
guidelines range.
When considering the § 3553(a) factors, the district court
must give the defendant the opportunity to invite the
court’s attention to those factors that might warrant a non-
guidelines sentence. Id. The court then must provide “an
adequate statement of the judge’s reasons, consistent
with section 3553(a), for thinking the sentence that he
has selected is indeed appropriate for the particular
defendant.” Dean, 414 F.3d at 729. Although the state-
ment must provide an adequate basis for the court of
appeals to review the district court’s decision, the district
court need not “rehearse on the record all of the consider-
ations that 18 U.S.C. § 3553(a) lists.” Id. (citing United States
14 No. 06-3224
v. George, 403 F.3d 470, 472-73 (7th Cir. 2005)). The record
simply must confirm that the district court “has given
meaningful consideration to the section 3553(a) factors.”
Williams, 425 F.3d at 480.
At sentencing, after the district court calculated Mr.
Dale’s advisory guidelines range, the Government re-
quested a sentence in the middle of the advisory guidelines
range and the court gave Mr. Dale the opportunity to set
forth his arguments for a lower sentence, including a non-
guidelines sentence. Mr. Dale pointed to his socio-eco-
nomic status, the fact that he had become involved with the
methamphetamine as a result of his father, his past sub-
stance abuse and his subsequent voluntary and “extraor-
dinary” rehabilitation efforts as reasons justifying a
sentence at the bottom of the advisory guidelines range.
Mr. Dale contended that, because the advisory guide-
lines do not account for these factors, a sentence at the
low end of the advisory guidelines was commensurate with
his true culpability.
After Mr. Dale had concluded his statement, the court
stated that, when reaching its final sentencing decision,
it would consider the § 3553(a) factors, “including the
nature and characteristics of this defendant, the offense, the
need for rehabilitation, [and] the need for deterrence.” R.89
at 156. This record demonstrates that the district court
followed the procedures that we have set out for determin-
ing a defendant’s sentence. Because the sentence imposed
was within the properly-calculated advisory guidelines
range, it is entitled to a presumption of reasonableness.
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
The record confirms that this presumption is well-founded
in the present case.
No. 06-3224 15
After considering Mr. Dale’s personal characteristics,
the court expressed concern that the progress Mr. Dale
had made was not as great as Mr. Dale had contended,
particularly in light of his violation of his bond by consum-
ing alcohol and the threat made to Winchester. With
respect to Mr. Dale’s offense of conviction itself, the district
court pointed to testimony that it had heard regarding Mr.
Dale’s conduct while he was engaged in this offense,
including testimony about threats of violence that he
made to police officers and a former girlfriend. Addition-
ally, the district court noted the serious nature of Mr.
Dale’s offense, involving a conspiracy to manufacture and
to distribute methamphetamine spanning three years. In
light of these considerations, we believe that the district
court’s decision to impose a sentence in the middle of the
advisory guidelines range was reasonable in light of
§ 3553(a).
3.
Mr. Dale also asserts that the presumption of reasonable-
ness afforded to sentences within the advisory guidelines
range renders the guidelines effectively mandatory, and
thereby violates his Sixth Amendment rights under Booker.
This contention was rejected by the Supreme Court in
Rita v. United States, 127 S. Ct. 2456 (2007). In Rita, the
Court held that the Sixth Amendment does not prohibit
an appellate presumption of reasonableness to within-
guidelines sentences, even if such presumption en-
courages district courts to impose sentences within the
advisory guidelines. Id. at 2466-67.
16 No. 06-3224
Conclusion
For the reasons set forth in this opinion, we affirm the
judgment of the district court.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-17-07