United States v. Lister

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-40549
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
L.C. LISTER, JR.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
(May 5, 1995)
Before KING and JONES, Circuit Judges, and LAKE, District Judge.*
PER CURIAM:
L.C. Lister, Jr. appeals from the sentencing determination of
the district court, arguing that an obstruction of justice
enhancement was improperly applied and that an acceptance of
responsibility deduction was improperly denied. We affirm the
sentence imposed by the district court.
*
District Judge of the Southern District of Texas, sitting
by designation.
I. FACTUAL AND PROCEDURAL BACKGROUND
In January of 1991, an investigation began into Lister's
involvement in the distribution of "crack" cocaine in the East
Texas area. Two cooperating individuals were employed to engage in
various crack purchases from Lister. On July 9, 1991, Lister was
charged in a five-count indictment with conspiracy to possess
cocaine base with intent to distribute and with distribution of
cocaine base. On October 10, 1991, after the government had rested
its case, Lister pled guilty to count two of the indictment
involving the distribution of cocaine base.
The presentence report ("PSR") recommended a two-level
increase in Lister's offense level for obstruction of justice, and
it recommended against awarding a two-level decrease in Lister's
offense level for acceptance of responsibility. The district court
overruled Lister's objections to the PSR and adopted the findings
in the report. On January 8, 1992, Lister was sentenced to 151
months imprisonment followed by a four-year term of supervised
relief.
The sentencing enhancement for obstruction of justice was
based upon a May 20, 1991 sale of crack cocaine to a cooperating
individual named Katy Demond. While in Demond's automobile, Demond
gave Lister $2,100 in exchange for the crack cocaine. Lister
indicated that Demond was $100 short on the payment, and he began
looking around Demond's vehicle. He asked to see a picture
identification of Demond, and he stated his belief that Demond
might be a police officer. According to the PSR, Lister stated
2
that if he got "busted," he would only have to make one telephone
call to have Demond "mess[ed] up." Lister further stated:
I'm just saying . . . you know what I'm talking about .
. . these men will kill . . . they don't give a damn who
it is . . . something would happen. It's going to be bad
luck I'm telling you. . . . They don't give a damn about
kids or nothing . . . They come . . . They blow your
fucking house up. I'm telling you right now . . . You
can tell me you can go snitch on everybody else but don't
snitch on me . . . .
Lister then began searching Demond's automobile for possible hidden
microphones, but he eventually sold Demond two ounces of crack.
The transaction was monitored and audiotaped by case agents.
Lister does not challenge his underlying conviction; instead,
he only appeals from his sentencing determination. According to
Lister, he did not "willfully" obstruct justice because he "did not
know that he was under investigation by any authorities or that
these individuals were potential witnesses against him." Moreover,
Lister claims that the district court erroneously denied him a
sentence reduction for acceptance of responsibility. We disagree
with Lister's contentions, but before discussing his claims, we
address a threshold issue involving our jurisdiction to hear this
appeal.
II. ANALYSIS AND DISCUSSION
A. Jurisdiction
After his conviction and sentencing, Lister did not
immediately appeal. He filed a motion pursuant to 28 U.S.C. § 2255
alleging that he received ineffective assistance of counsel because
his attorney failed to appeal his sentence. The magistrate judge
recommended 1) that the motion be dismissed without prejudice; 2)
3
that Lister's judgment of conviction be reinstated on the docket of
the district court; and 3) that Lister be given ten days from
receipt of the final judgment to file his notice of appeal. The
district court adopted the report and recommendation of the
magistrate judge and ordered the reinstatement of Lister's judgment
of conviction. The court also advised Lister that he could file
his appeal within ten days of receiving the order.
The district court's order of reinstatement was entered on May
13, 1994. Return receipts in the record indicate that the order
was received by Lister's attorney, C. Bruce Abraham, on May 14,
1994, and by Lister himself on May 17, 1994. On June 8, 1994,
Abraham filed a notice of appeal in which he represented that he
received the order on May 31, 1994. On June 17, 1994, Lister also
filed a notice of appeal, together with a motion for appointment of
appellate counsel.1 On July 7, 1994, the district court granted
Lister's motion and appointed the Federal Public Defender to
represent Lister on appeal.
Because the first notice of appeal was apparently filed more
than ten days after receipt of the order, our jurisdiction to hear
this appeal is in question. We have long held that, if necessary,
an examination of the basis of our jurisdiction must occur on our
own motion. See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.
1987). Lister's ten-day period for filing his appeal elapsed on
May 24, 1994. Under Federal Rule of Appellate Procedure 4(b),
1
Lister requested appellate counsel because Abraham had
recently accepted employment as an Assistant Attorney General for
the State of Texas.
4
however, the district court may extend the time for filing a notice
of appeal for a period of up to thirty days if "excusable neglect"
is found. In United States v. Quimby, 636 F.2d 86, 89 (5th Cir.
Unit A Feb. 1981), we concluded that the district court's ruling on
the motion to appoint counsel and to allow appeal in forma pauperis
constituted such a finding of "excusable neglect" when the notice
of appeal was untimely. Following Quimby, therefore, the district
court's ruling on Lister's motion for appointment of appellate
counsel was tantamount to an "excusable neglect" finding, and as
such, we have jurisdiction over Lister's appeal.
B. Obstruction of Justice
Lister objected to the upward adjustment in his sentence for
obstruction of justice, but the district court overruled his
objection and adopted the PSR in its entirety. On appeal, Lister's
primary contention is that he did not "willfully" obstruct justice
because he was unaware that he was the subject of an investigation
and that Katy Demond was a witness for the government. According
to the PSR, before threatening Demond, Lister "stated that he
believed that [Demond] might be a police officer," and the PSR also
noted that "[t]he defendant made specific threats to the
confidential informant when he suspected that [she] might be an
undercover officer." The PSR implied, however, that knowledge or
awareness of an investigation was irrelevant to the obstruction of
justice enhancement, as the PSR stated that the relevant sentencing
guideline "does not state that the defendant must have prior
5
knowledge that an official investigation has been undertaken."2 As
mentioned, the district court adopted the findings of the PSR in
their entirety.
The sentencing court's interpretations of the guidelines,
being conclusions of law, are reviewed de novo. United States v.
McCaskey, 9 F.3d 368, 372 (5th Cir. 1993), cert. denied, 114 S. Ct.
1565 (1994). We conclude that a defendant's awareness of the
commencement of an investigation is relevant and necessary for the
obstruction of justice enhancement. As we will explain, however,
the district court made the required findings in this case, and as
such, the guidelines were properly applied.
The obstruction of justice enhancement, U.S.S.G. § 3C1.1,
states that "[i]f the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the investigation, prosecution, or sentencing of the instant
offense, increase the offense level by 2 levels." One of the
examples of the types of conduct covered by this enhancement is
"threatening, intimidating, or otherwise unlawfully influencing a
co-defendant, witness, or juror, directly or indirectly, or
attempting to do so." Id. Courts have defined "willful" to
require the defendant to act "deliberately and with the intent to
hinder justice," United States v. Teta, 918 F.2d 1329, 1333 (7th
2
Similarly, the government contends that the obstruction
of justice enhancement "does not state that the defendant must
have prior knowledge that an official investigation has been
undertaken," and it further asserts that "it is of no consequence
that Defendant was not aware an official investigation of his
drug activities was under way."
6
Cir. 1990); see United States v. Rivera, 971 F.2d 876, 894 (2d Cir.
1992) (noting that the defendant must have "consciously act[ed]
with the purpose of obstructing justice" (internal quotation
omitted)), but the interpretive question before us is whether the
term "willfully" contemplates "an understanding that an
investigation of a defendant's conduct has probably begun, or
simply means that the defendant was generally knowledgeable as to
the likely effect of a threat on the person to whom the conduct is
directed." United States v. Oppedahl, 998 F.2d 584, 585 (8th Cir.
1993).
The term "willful," unfortunately, is a term with "no fixed
meaning," Smith v. Wade, 461 U.S. 30, 63 n.3 (1983) (Rehnquist, J.,
dissenting), and the Supreme Court has counseled that the term's
construction is often "influenced by its context." Spies v. United
States, 317 U.S. 492, 497 (1943). To understand the context in
which we base our decision today, an examination of the pertinent
case law is necessary.
In United States v. Luna, 909 F.2d 119 (5th Cir. 1990), the
appellant committed an assault with a gun and concealed the gun
before the crime was reported and before an investigation had
commenced. See id. at 120. The government conceded that an
investigation of the offense did not begin until several hours
after the gun was concealed. The district court found that an
obstruction of justice enhancement was appropriate "because the
concealment of the weapon constituted obstruction of justice." Id.
We reversed, emphasizing the temporal language of the enhancement:
7
"during the investigation or prosecution of the instant offense."3
As we explained:
In the instant case it is undisputed that no
investigation had begun when appellant concealed the gun.
It is equally clear that appellant concealed the weapon
so that his crime would go unpunished.
. . .
The government relies on three cases[,] all of which are
factually inapposite since in each of those cases the
investigation was already underway at the time the
defendants attempted to conceal or destroy the evidence.
Id. (emphasis added) (footnote omitted). From this language, it is
clear that Luna established a temporal requirement for the
obstruction of justice enhancement, but the opinion did not address
whether a defendant's awareness of the investigation is also
required before the enhancement can be imposed.
In United States v. Wilson, 904 F.2d 234 (5th Cir. 1990),
however, we did hint that a defendant's awareness may be necessary
for imposition of the enhancement. Wilson used an alias and gave
a package containing firearms to a Federal Express agent in Dallas
for delivery to New York. See id. at 235. Wilson did not tell the
Federal Express agent that the package contained firearms, nor did
Wilson know that agents of the Bureau of Alcohol, Tobacco, and
Firearms were watching nearby. See id. At sentencing, the
district court found that an obstruction of justice enhancement was
warranted because "Wilson's use of an alias impeded the
investigation of the offense." Id.
3
The slight difference in the language of the
enhancement is due to the fact that an earlier version of the
Sentencing Guidelines was at issue in Luna.
8
We reversed this finding on appeal, and we intimated that a
defendant cannot obstruct justice (in the context of the sentencing
enhancement) without an awareness that an investigation into his
behavior has commenced. As we observed:
There is simply no evidence that Wilson wil[l]fully
impeded or obstructed the administration of justice, or
attempted to do either, during the investigation or
prosecution of his offense. Wilson did not misrepresent
his identity to law enforcement officers; he
misrepresented it to Federal Express. At that time,
Wilson was unaware that any investigation was taking
place and prosecution had not yet begun. His intent
clearly was not to impede the investigation or
prosecution of his offense. His intent was to disguise
himself in such a way so that his crime would go
unpunished. At that he was unsuccessful, and he deserves
to be punished for his underlying offense. An increase
in his offense level is, however, unwarranted.
Id. (second emphasis added). Wilson alone, however, cannot stand
for the proposition that a defendant's awareness of the
investigation is independently necessary before the enhancement can
be imposed. After all, the above-quoted language suggests that the
temporal requirement was also not met in Wilson, and we did not
explain the extent to which this temporal problem led to our
conclusion.4
The Eighth Circuit, however, did address the independent
significance of this awareness issue in a case strikingly similar
to the one now before us. In Oppedahl, the defendant was an LSD
4
Indeed, in the subsequent Luna decision, we stated that
our inquiry was guided by Wilson, and we focused on the temporal
language in Wilson that there was "simply no evidence that Wilson
willfully impeded or obstructed the administration of justice or
attempted to do so either, during the investigation or
prosecution of his offense." Luna, 909 F.2d at 120 (quoting
Wilson, 904 F.2d at 235).
9
dealer, and during the course of dealing with a customer, the
defendant remarked "that he would kill the customer if he ever
`narked' on his supplier." 998 F.2d at 585. At the time, the
defendant was unaware that his conversation had occurred when he
and his customer were under suspicion and when an investigation
into their conduct had already begun. See id.
The Probation Officer recommended an obstruction of justice
enhancement, but the district court rejected the suggestion. See
id. The court found that the customer was intimidated by the
threat, but it held that there was no "willful" obstruction of
justice when the defendant was unaware of the investigation. See
id. On appeal, the Eighth Circuit affirmed, and it provided the
following insightful analysis:
It would be anomalous for the Sentencing Commission to
direct that sentences be enhanced for threatening conduct
during the course of a totally unknown investigation,
while providing that similarly culpable conduct would not
result in an enhancement if there were no investigation.
Deterrence would not be served by such a rule, absent
some awareness of the investigation. Culpability is
identical, by definition. We believe that the term
"willfully" should be reserved for the more serious case,
where misconduct occurs with knowledge of an
investigation, or at least with a correct belief that an
investigation is probably underway. Thus, the deterring
effect of the Guideline is advanced, at least in theory.
Id. at 586 (emphasis added); see also United States v. Perry, 991
F.2d 304, 312 (6th Cir. 1993) (denying an obstruction of justice
enhancement for sending alleged robbery proceeds to a girlfriend in
another state because "[a]t the time [the defendant] sent the
money, he had no knowledge that an investigation was underway, he
10
did not subvert the investigation by his act, and he did not effect
a delay in the prosecution of his crime" (emphasis added)).
This Oppedahl reasoning is consistent with the direction of
our Luna and Wilson decisions, and we too believe that the
obstruction of justice enhancement should apply only to those cases
where misconduct occurs with the defendant's knowledge of an
investigation, or at least with the defendant's correct belief that
an investigation is probably underway. Thus, we find that the
obstruction of justice enhancement involves both a temporal
requirement and an awareness requirement -- requirements that
reflect the notion that once government action has been initiated,
and an individual is aware of such action, we expect and encourage
that individual to cooperate and to comply with the authorities,
and that cooperation and compliance includes the cessation of any
conduct that facilitates the successful completion of a crime.5
As mentioned, in the instant case, the PSR noted that
"[s]ubsequent to defendant Lister requesting identification of
5
In this respect, the cases cited by the government from
this circuit are inapposite, as they all involve contested
conduct when the defendant knew that the authorities were
investigating or seeking to inquire about certain behavior. The
government's cases emphasize that at the time of the obstructive
conduct, the authorities were actually investigating an offense
other than the eventual offense of conviction on which the
enhancement was applied. This distinction, however, is not
relevant to the awareness requirement, as flouting authority
after an individual possesses an awareness of the involvement of
the authorities is the type of conduct that the enhancement
focuses upon, regardless of the specific behavior that got the
authorities involved in the first place. The government's
distinction may be relevant to whether the temporal requirement
is satisfied, but that question is not before us in this case,
and we express no opinion on the issue.
11
[Demond], he stated that he believed that [Demond] might be a
police officer" (emphasis added). Lister then made his threatening
statements to Demond. In addition, the PSR later noted that "[t]he
defendant made specific threats to [Demond] when he suspected that
[she] might be an undercover officer." The district court adopted
these findings, and they clearly indicate that Lister made his
threatening statements with a belief that an investigation was
probably underway. Because Lister was correct in this belief, the
district court did not err in imposing the enhancement.6
C. Acceptance of Responsibility
Lister contends that he should have received a downward
adjustment for acceptance of responsibility, and he argues that he
was improperly denied such an adjustment because of the district
court's erroneous obstruction of justice finding. As we observed
in United States v. Cartwright, 6 F.3d 294, 304 (5th Cir. 1993),
cert. denied, 115 S. Ct. 671 (1994), we have applied various
standards to reviewing a district court's refusal to credit
acceptance of responsibility: clearly erroneous, without
6
In United States v. Roberson, 872 F.2d 597, 609 (5th
Cir.), cert. denied, 493 U.S. 861 (1989), we observed that
"[a]lthough section 3C1.1 does not expressly require a link
between the offense of conviction and the obstruction, it refers
to a defendant's efforts to obstruct the `instant offense.' This
reference arguably requires a nexus between the obstruction and
the offense at issue." Despite Lister's attempts to separate the
count that he pled guilty to and the threats that he made to
Demond, it is clear that the threat to Demond was designed to
intimidate her and to prevent her from telling the authorities
about any of Lister's drug transactions, and we refuse to find
that the threat was limited only to a particular drug transaction
at a particular day and time. A nexus between the threat and the
count of conviction, if required, is clearly present in this
case.
12
foundation, and great deference. We noted, however, that "[t]here
appears to be no practical difference between the three standards."
Id. Regardless of the formulation, the sentencing guidelines
indicate that "[t]he sentencing judge is in a unique position to
evaluate a defendant's acceptance of responsibility." U.S.S.G. §
3E1.1 (commentary).
According to the Sentencing Guidelines, "[a] defendant who
enters a guilty plea is not entitled to an adjustment under this
section as a matter of right." Id. One of the considerations in
determining whether a defendant qualifies for an acceptance of
responsibility deduction is "the timeliness of the defendant's
conduct in manifesting the acceptance of responsibility." Id.
Similarly, "[t]his adjustment is not intended to apply to a
defendant who puts the government to its burden of proof at trial
by denying the essential factual elements of guilt, is convicted,
and only then admits guilt and expresses remorse." Id.
In denying an adjustment for acceptance of responsibility, the
district court did not rely solely on the obstruction of justice
findings. The PSR stated that "the defendant put the Government to
it's [sic] burden of proof at trial and did not enter a guilty plea
until the closing statements at trial. This does not appear to
meet the criteria for the two-level reduction for acceptance of
responsibility." The district court accepted the PSR's findings,
and we cannot say that the findings are "without foundation" or are
"clearly erroneous." See United States v. Diaz, 39 F.3d 568, 572
(5th Cir. 1994) (denying an acceptance of responsibility
13
adjustment, in part because "Defendants waited until the morning of
trial to enter plea negotiations"); United States v. Wilder, 15
F.3d 1292, 1299 (5th Cir. 1994) (denying an acceptance of
responsibility adjustment, in part because the defendant "did not
agree to plead guilty until the eve of trial, thereby putting the
government to much effort and expense preparing for trial"). In
the instant case, Lister did not plead guilty and accept
responsibility until he had put the government to its proof, and we
see no reason to disturb the district court's denial of a downward
adjustment.
III. CONCLUSION
For the foregoing reasons, the sentence imposed by the
district court is AFFIRMED.
14