United States v. Markietta Harvey , 423 F. App'x 657 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3241
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Markietta Harvey, *
* [UNPUBLISHED]
*
Appellant. *
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Submitted: April 15, 2011
Filed: August 8, 2011
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Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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PER CURIAM.
Markietta Harvey pled guilty to conspiracy to defraud, in violation of 18 U.S.C.
§ 371, and aggravated identify theft, in violation of 18 U.S.C. § 1028A. The district
court1 sentenced Harvey to 70 months imprisonment. Harvey appeals her sentence,
contending that the district court erred in applying an obstruction of justice
1
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
enhancement under the Guidelines. See United States Sentencing Commission,
Guidelines Manual, §3C1.1. We affirm.
I.
Harvey joined an identity-theft ring organized by her boyfriend Stephen
Baldwin. The group opened credit accounts to obtain goods and services under stolen
identities, then sold the fraudulently obtained items for cash. To accomplish this,
group members were provided with a counterfeit state identification card and the
personal information of the individual whose identity had been stolen. Several group
members would travel together from Illinois to Missouri to open accounts and obtain
merchandise. While on one such trip, Harvey and the other group members were
apprehended.
Harvey pled guilty to aggravated identity theft and conspiracy to defraud. For
the aggravated identity theft count, the district court imposed the statutorily mandated
24 months imprisonment, see 18 U.S.C. § 1028A(a)(1), (b)(2). For the conspiracy to
defraud count, the district court calculated an adjusted offense level of 17, then added
two levels for obstruction of justice under section 3C1.1. Based on an offense level
of 19 and a criminal history category IV, the court calculated a Guidelines range of
46 to 57 months imprisonment and imposed a sentence of 46 months to be served
consecutively with the 24-month term.
II.
Harvey challenges the district court’s decision to impose the obstruction of
justice enhancement, contending that the district court erred in finding that she
attempted to intimidate a witness in her case because none of the Government’s
proffered evidence showed intent. We defer to the district court’s decision to impose
an obstruction of justice enhancement unless the court makes insufficient findings.
-2-
United States v. Cunningham, 593 F.3d 726, 730 (8th Cir. 2010). “The district court
must find the predicate facts supporting an enhancement for obstruction of justice by
a preponderance of the evidence, and we review those findings for clear error.”
United States v. Montes-Medina, 570 F.3d 1052, 1061 (8th Cir. 2009).
The obstruction of justice enhancement applies when 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.” U.S.S.G. §3C1.1. The commentary to section 3C1.1 explains
that “threatening, intimidating, or otherwise unlawfully influencing” a witness
“directly or indirectly, or attempting to do so,” is conduct that warrants the
obstruction of justice enhancement. U.S.S.G. §3C1.1 comment. (n.4).
Based on the testimony of Terrick Harvey, Harvey’s brother and one-time
member of the identity-theft ring, the district court found that Harvey attempted to
intimidate Terrick. The testimony reflected that Harvey sent a letter to Otis Morgan,
one of Terrick’s fellow inmates in the Phelps County Jail, and informed him that
Terrick planned to testify against her. Morgan then approached Terrick and warned
him against testifying because doing so would jeopardize Terrick’s safety. The
district court credited Terrick’s testimony, and the “court’s assessment of witness
credibility is virtually unassailable on appeal.” United States v. Harris, 493 F.3d 928,
932 (8th Cir. 2007).
Harvey nevertheless contends that Terrick’s testimony was insufficient to prove
Harvey’s intent because it only showed that Harvey sent the letter, not that she
intended to intimidate or threaten Terrick by doing so. This argument fails, however,
because we have long held that intent may be proven with circumstantial evidence.
-3-
See United States v. Dvorak, 617 F.3d 1017, 1023-24 (8th Cir. 2010), cert. denied,
131 S. Ct. 1539 (2011). Accordingly, the district court did not clearly err.2
In addition, we modify the judgment in this case to correct a clerical error;
Harvey is guilty of violating 18 U.S.C. § 371, rather than “18 U.S.C. § 3711.” See
28 U.S.C. § 2106 (providing that an appellate court may modify any judgment
brought before it for review).
III.
We affirm the sentence imposed by the district court and modify the judgment
to reflect that Harvey is guilty of violating 18 U.S.C. § 371.
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2
We do not reach Harvey’s additional argument regarding acceptance of
responsibility because it is predicated on the reversal of the district court’s application
of the obstruction of justice enhancement, and Harvey acknowledges that hers is not
an “extraordinary case” warranting the application of both the obstruction of justice
enhancement and the acceptance of responsibility reduction, see U.S.S.G. §3E1.1
comment. (n.4).
-4-