United States v. Fisher

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 11, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 19-4096
v. (D.C. No. 4:18-CR-00081-DN-2)
(D. Utah)
WEST FISHER,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges.
_________________________________
Defendant West Fisher was sentenced to 188 months’ imprisonment after his
conviction by a jury on one count of possession of methamphetamine with intent to
distribute and one count of distribution of methamphetamine. In computing the
sentencing guidelines range, the district court increased Defendant’s offense level by
2 for obstruction of justice under USSG § 3C1.1. It recognized two grounds for the
enhancement: (1) Defendant’s retrieval of drug proceeds from the home of his
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
codefendant, Jason Saunders, after Saunders was arrested and needed the money for
bail, and (2) his threatening statements about witnesses during a phone call to his
girlfriend while he was in pretrial detention.
On appeal Defendant does not challenge his conviction but contends that he
should be resentenced because his offense level should not have been enhanced under
the obstruction-of-justice guideline. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm the judgment. Defendant forfeited the legal theories he presents on appeal
regarding the drug-proceeds ground for the enhancement because they were not
presented to the district court. And he has conceded that he is not entitled to relief if
his arguments are considered under plain-error review. We therefore need not
consider whether the enhancement could also be predicated on the threatening
statements.
I. BACKGROUND
The Federal Drug Enforcement Agency (DEA) began investigating Defendant and
his codefendant Saunders in March 2018 after receiving information from the Sevier
County Sheriff’s Department that Defendant was bringing large quantities of
methamphetamine from out of state for sale in Utah. On July 3, 2018, the Sheriff’s
Department executed a warrant to search Saunders’s home. They found a little less than
a pound of methamphetamine in a safe in his bedroom and on his coffee table. Saunders
was arrested and taken to the county jail.
A week later Saunders called Defendant from jail on a monitored phone line. He
told Defendant that he had $27,000 at his home that officers had not found while
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executing the search warrant; and he asked Defendant to get the key to his home from
him at the jail and retrieve $2500 to use to bail him out. Law-enforcement officers then
observed Defendant and his girlfriend, Laurie Layton, go to the jail and then to
Saunders’s home. The officers stopped Defendant and Layton as they drove away from
the home and asked about the money. Layton told the officers that she had it and gave
them $2500.
A superseding indictment on October 31, 2018, charged Defendant with
possession of methamphetamine with intent to distribute and distribution of
methamphetamine. He was arrested on the indictment on November 11. While he was
awaiting trial in jail, he had a recorded phone conversation with Layton in which he
stated:
I’ll just go to prison for a fuckin’ couple of years because a dude got busted. So
I’m going to take the rap for this mother fuckn’ punk. I should have slit his fuckn’
throat when he was here. . . . Yeah. You know what’s going to happen when I get
out? I’m going to kill the fuckn’ punk ass pig [DEA Agent]. He’s a dead
motherfucker. [Cooperating Witness 1] is a dead motherfucker. [Cooperating
Witness 2] is a dead motherfucker. They’re dead when I get out of that mother
fuckn’ prison. . . . No, there’s two motherfucking options. I’m not playing this
mother fuckn’ game with these fucking bitch ass snitches.
R., Vol. II at 9. Layton cautioned him about the threats. The witnesses mentioned by
Defendant testified against him at trial, and Defendant was convicted on both counts.
II. DISCUSSION
Defendant’s sole argument on appeal is that the district court improperly
increased his offense level for obstruction of justice under USSG § 3C1.1. The
district court ruled that Defendant engaged in two acts of obstruction. One was the
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conversation with Layton in which he threatened witnesses. The other was his
removing drug money from Saunders’s home to pay Saunders’s bail. We must affirm
unless Defendant successfully challenges both grounds for the enhancement, since
one act of obstruction suffices for imposition of the enhanced offense level.
We need not, however, address every challenge raised by the appellant in this
court. Failure to preserve an issue in the district court forfeits the right to review of
that issue on appeal. See Ave. Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 885
(10th Cir. 2016); United States v. Buonocore, 416 F.3d 1124, 1128 (10th Cir. 2005)
(“In general, this court will not consider a theory on appeal not raised or ruled on
below.”); Fed. R. Crim. P. 51(b) (“A party may preserve a claim of error by
informing the court . . . of . . . the party’s objection to the court’s action and the
grounds for that objection.”). For an objection to a court ruling to preserve an
argument against the ruling, it “must be definite enough to indicate to the district
court the precise ground for [the] party’s complaint.” United States v. Winder, 557
F.3d 1129, 1136 (10th Cir. 2009) (internal quotation marks omitted). Otherwise, “the
district court is deprived of the opportunity to correct its action in the first instance.”
Id. The mere fact that the theory presented on appeal falls under the same general
rubric as one presented to the district court is not sufficient to preserve the theory for
appellate review. See United States v. A.B., 529 F.3d 1275, 1279 n.4 (10th Cir. 2008)
(“We have repeatedly declined to allow parties to assert for the first time on appeal
legal theories not raised before the district court, even when they fall under the same
general rubric as an argument presented to the district court.”).
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We now address whether Defendant preserved below his appellate arguments
challenging the drug-proceeds ground for imposing the obstruction-of-justice
enhancement to his offense level.
The presentence report prepared by the probation office recommended that
Defendant receive a two-level enhancement under § 3C1.1 for his conduct in
retrieving cash from the home of his codefendant. Defense counsel filed written
objections to the recommendation. His argument against basing the enhancement on
his retrieval of the drug proceeds was that getting money to bail Saunders out of jail
was “not an obstruction of justice in the traditional sense of the crime.” R., Vol. II at
28. Counsel explained, “Being asked [by] a friend to go to his house and get some
bail money to bail him out of jail is not the standard set of circumstances that the
obstruction of justice statute is meant to prevent.” Id. He quoted the Utah
obstruction-of-justice statute and, without pointing to any particular language in the
statute, said that “[c]learly this enhancement does not apply, in that the behavior
mentioned by law enforcement, and even the charging document in the State of Utah,
could not support a conviction of this crime by [Defendant].”1 Id.
1
The Utah statute states:
(1) An actor commits obstruction of justice if the actor, with intent to hinder,
delay, or prevent the investigation, apprehension, prosecution, conviction, or
punishment of any person regarding conduct that constitutes a criminal offense:
(a) provides any person with a weapon;
(b) prevents by force, intimidation, or deception, any person from performing
any act that might aid in the discovery, apprehension, prosecution,
conviction, or punishment of any person;
(c) alters, destroys, conceals, or removes any item or other thing;
(d) makes, presents, or uses any item or thing known by the actor to be false;
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Defense counsel made more or less the same argument at the sentencing
hearing. He argued:
[U]nder Utah State law, I don’t think . . . that going to someone’s house,
getting money from their house and bailing someone out at their request is an
obstruction of justice. . . . [I]t’s not one of the elements. It’s not, go get some
money and get me an airport ticket to get me out of the country and come bail
me out. It’s simply, go to my house, pick up the money, come bail me out.
R., Vol. III at 442–43. Again, counsel did not point to any particular language in the
state statute.
The government responded that Defendant went to Saunders’s house “to get
drug money” that officers had not found when they executed the search warrant. Id.
at 445. Therefore, the government argued, Defendant “[took] evidence from the
scene,” which is “obstruction of justice in and of itself.” Id. Defense counsel did not
respond to this argument. The district court ruled that the guideline applied because
it provides that “an attempt to interfere with prosecution [is] an obstruction of
justice.” Id. at 446.
(e) harbors or conceals a person;
(f) provides a person with transportation, disguise, or other means of
avoiding discovery or apprehension;
(g) warns any person of impending discovery or apprehension;
(h) warns any person of an order authorizing the interception of wire
communications or of a pending application for an order authorizing the
interception of wire communications;
(i) conceals information that is not privileged and that concerns the offense,
after a judge or magistrate has ordered the actor to provide the information;
or
(j) provides false information regarding a suspect, a witness, the conduct
constituting an offense, or any other material aspect of the investigation.
Utah Code Ann. § 76-8-306 (West 2020)
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Apparently recognizing the validity of the government’s removal-of-evidence
theory, Defendant does not argue on appeal that taking the drug money from
Saunders’s home could not constitute obstruction of justice. Rather, he argues that
for the obstruction-of justice enhancement to apply to an attempt to conceal evidence,
the evidence at issue “must relate to the crime of conviction,” Aplt. Br. at 14 (internal
quotation marks omitted), and “the conduct at issue must have occurred during the
investigation, prosecution, or sentencing of the instant offense,” id. at 13–14 (internal
quotation marks omitted). He explains that his “crime of conviction did not include
or otherwise require consideration of Mr. Saunders’ proceeds of the crimes with
which he had been charged at the time,” id. at 15, and that the temporal requirement
was not satisfied because when he picked up the drug proceeds there was no
indication of a pending investigation against him. He also argues he had no intent to
conceal evidence of his crime of conviction because there was no reason to believe
that an investigation of his drug dealing was under way or imminent when he took
the cash.
In short, Defendant’s brief on appeal argues that regardless of whether his
conduct obstructed the prosecution of Saunders, it did not obstruct the prosecution
against him. That was not the argument Defendant made in district court, where he
asserted that the conduct did not obstruct justice. Defendant’s reply brief on appeal
argues that what he said in his objections to the PSR and at his sentencing hearing
adequately alerted the district court to the issues raised on appeal. Respectfully, we
cannot agree.
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We recognize that even when an issue is forfeited, the defendant may still
pursue plain-error review. See Fed. R. Crim. P. 52(b) (“A plain error that affects
substantial rights may be considered even though it was not brought to the court’s
attention.”); United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006) (“[A]
party that has forfeited a right by failing to make a proper objection may obtain relief
for plain error[.]” (emphasis omitted)). But not only has Defendant failed to ask for
plain-error review or to argue why the district court’s imposition of the offense-level
enhancement would be plain error, he has conceded that he does not believe that his
sentence was plainly erroneous. He states in his reply brief, “As the government
notes, we did not argue plain error in our opening Brief. Candidly, we do not believe
that the circumstances of this case and applicable case law support reversal of the
District Court’s application of USSG § 3C1.1 based on a plain error analysis.” Aplt.
Reply Br. at 1 n.2. We therefore hold that he has waived his right to plain-error
review and affirm his sentence.
III. CONCLUSION
We AFFIRM the judgment below.
Entered for the Court
Harris L Hartz
Circuit Judge
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