United States v. Michael Hill , 943 F.2d 873 ( 1991 )

HEANEY, Senior Circuit Judge,

concurring in part and dissenting in part.

I concur in the majority opinion with one exception. I do not believe that the record supports the two-level increase for obstruction of justice, an increase which resulted in at least seven months being added to Hill’s sentence. When determining whether the record supports this upward adjustment, we must keep in mind that the government had the burden of proving by a preponderance of the evidence the facts supporting this upward adjustment. See United States v. Townley, 929 F.2d 365, 369-70 (8th Cir.1991) (preponderance-of-the-evidence standard applies in most cases, although clear-and-convincing standard might apply in exceptional cases). Here, the government failed to carry its burden, and the case should be remanded to the district court with instructions to resen-tence the defendant without an enhancement for obstruction of justice.

The United States Attorney stated that the obstruction adjustment should be made because of a series of phone calls Hill made to the Dobbins’ household before and after his arrest. It is inappropriate, of course, to consider the threats Hill made prior to his arrest or the actions he took in carrying out the threats as evidence justifying an additional two-level increase for obstruction of justice: Hill had already been sentenced for the pre-arrest threats and received a six-level upward adjustment for the conduct evidencing an intent to carry out the threat.

Thus, there was only one proper basis for enhancing Hill’s sentence for obstruction of justice: the telephone calls made by Hill to the Dobbins’ residence after he was incarcerated. The district court made the following findings in that regard:

[Tjhere is testimony in this case which is persuasive to me that Mr. Hill made several calls, Maggie Dobbins, I think, said perhaps six to 10 or something like that, calls while he was incarcerated. And it’s true that none was accepted. But they all were identified as coming from him. If he had intended to mean by that that he wanted to apologize there are other ways that would have been quite simple for him to accomplish that purpose. Calling her over and over again by collect call ... and being rejected over and over again was hardly calculated to cause anybody to suppose that he wanted to apologize. It had the opposite effect, and I think reasonably so.... So I’m finding the gist of paragraph 29 [of the PSI] to be true. That he did ... attempt to obstruct justice by making the telephone calls.

Id. at 75-76. As the district court noted, all of the post-arrest calls were collect, and the Dobbins family did not accept any of them. Consequently, the district court could only speculate as to why Hill called Dobbins.

The mother, Mona Dobbins, was in the courtroom but was not called by the government as a witness. Maggie Dobbins testified that the whole incident caused her ill effects, including nightmares, which she did not have before. At no time, however, did she specifically relate her problems to the telephone calls Hill made after he was incarcerated, and she obviously had no knowledge of why Hill wanted to call because none of the phone calls was ever accepted. The only testimony relevant to the question of intent was Hill’s uncontro-verted testimony that he wanted to write to the Dobbins family to apologize. While the court did not credit Hill’s testimony in this respect, the burden of proof still lay with the government to prove that the calls were made to intimidate Maggie Dobbins. There is no evidence in the record showing that this was the purpose of the calls, and it was sheer speculation for the court to so rule.

One other matter warrants discussion. The transcript of the guilty plea hearing indicates that the government was fully aware before indicting Hill that Hill took actions showing an intent to carry out his threat to kidnap. Hill, however, was never charged with that offense in an indictment. Nonetheless, the actions he took to carry out the threat resulted in an increase in his sentencing range from 15-21 months to 33-41 months. In other words, Hill’s sentence was more than doubled by uncharged conduct. I recognize that our court has permitted this sentencing practice, but to me it is a clear violation of due process. See United States v. Payne, 940 F.2d 286, 295 (8th Cir.1991) (Heaney, J., concurring and dissenting).