U.S. v. Phillips

• Decision Date: 18 April 2000
• Docket Number: No. 98-50062,98-50062
• Citation: 210 F.3d 345
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES THOMAS PHILLIPS, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 345

210 F.3d 345 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES THOMAS PHILLIPS, Defendant - Appellant.

No. 98-50062

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

April 18, 2000

[Copyrighted Material Omitted] Appeal from the United States District Court For the Western District of Texas

Before REAVLEY, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Federal prisoner James Thomas Phillips filed a motion under 28 U.S.C. 2255 challenging his 1991 conviction and sentence. The district court denied his motion, and we granted him a certificate of appealability on a single issue. Having considered that issue, we vacate his sentence and remand for resentencing.

I

While conducting an unrelated investigation, Austin police discovered a Chevrolet Suburban in a motel parking lot that was registered to Phillips, a federal fugitive, under an alias. Before the officers could arrest him, he left in a station wagon with Laurie McCravy, his common law wife, and her three children. The police followed, stopped the station wagon, and arrested Phillips and McCravy. Inside the station wagon, the police found a loaded firearm and a box containing approximately 1200 grams of methamphetamine.

Phillips was prosecuted and convicted by a jury of conspiracy to possess methamphetamine with intent to distribute, possession of methamphetamine with intent to distribute, and carrying a firearm during a drug related offense. See 18 U.S.C. 924(c); 21 U.S.C. 841(a)(1), 846. The trial judge sentenced him to concurrent 188-month sentences for the conspiracy and possession convictions and to a consecutive sixty-month sentence for the firearms conviction. The court arrived at this sentence, in part, by finding that Phillips's sentence should have been enhanced for obstruction of justice. See United States Sentencing Commission, Guidelines Manual, 3C1.1 (1991).

We affirmed on direct appeal. See United States v. Phillips, No. 91-8527 (5th Cir. Dec. 10, 1992) (unpublished). We did not address the obstruction of justice enhancement because, although Phillips claims he asked his appellate counsel to do so, the enhancement was not challenged on appeal.

Phillips subsequently filed this 2255 motion. The magistrate judge recommended denying the motion and the district court "adopt[ed] the Magistrate Judge's factual findings and legal conclusions." After the district court denied Phillips's request for a certificate of appealability, we granted him a certificate on a single issue: whether his counsel was ineffective for not appealing the obstruction of justice enhancement.

II

The district court determined that Phillips's trial counsel was not ineffective because the obstruction of justice enhancement was proper. We review this ruling de novo. See United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).

A criminal defendant has a constitutional right to receive effective assistance of counsel on direct appeal. See Hughes v. Booker, 203 F.3d 894, 895 (5th Cir. Feb. 24, 2000). A claim of ineffective assistance based on the failure to argue an issue on appeal is governed by the familiar two-part Strickland test, which requires us to determine whether: (1) the attorney's performance was deficient, and (2) the deficiency prejudiced the defendant. See Roe v. Flores-Ortega, - U.S. -, 120 S. Ct. 1029, 1034, 145 L. Ed. 2d 985, (2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674,692-93 (1984)); United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999).

A

Counsel is not deficient for not raising every non-frivolous issue on appeal. See Williamson, 183 F.3d at 462. Instead, to be deficient, the decision not to raise an issue must fall "below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93. This reasonableness standard requires counsel "to research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful. Solid, meritorious arguments based on directly controlling precedent should be discovered and brought to the court's attention." Williamson, 183 F.3d at 462-63 (citations omitted). Thus, to determine whether Phillips's appellate counsel was deficient, we consider whether a challenge to the obstruction enhancement would have been sufficiently meritorious such that Phillips's counsel should have raised it on appeal.

The version of 3C1.1 in effect at the time Phillips was sentenced¹ stated:

If 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.

USSG 3C1.1 (1990). We have previously identified two factors which distinguish between obstructive and non-obstructive conduct: (1) whether the conduct "presents an inherently high risk that justice will be obstructed;" and (2) whether the conduct "requires a significant amount of planning," as opposed to being "the result of a spur of the moment decision" or "stem[ming] from merely panic, confusion, or mistake." United States v. Greer, 158 F.3d 228, 235 (5th Cir. 1998).

The Presentence Report ("PSR") in this case justified its recommendation of an enhancement under 3C1.1 by stating: "This defendant provided untruthful testimony concerning material facts at his trial wherein he attempted to obstruct the administration of justice during the investigation and prosecution of the instant offense." Phillips objected on the grounds that the probation officer was not present at trial and was thus unable to judge his truthfulness as a witness. The United States ("the government") responded by stating that the defendant provided false information to law enforcement officers after his arrest. The government bolstered this assertion by submitting an affidavit from one of the arresting officers discussing allegedly-obstructive statements Phillips made to the arresting officers. Specifically, Phillips denied knowing the ownership of the Suburban, the methamphetamine, and the station wagon. Also, he refused to clarify his relationship with McCravy and he explained his unhelpfulness by claiming he had hearing and memory deficits. The probation officer adopted this response to Phillips's objections in an addendum to the PSR.

The court generally "adopt[ed] . . . as its finding the factual statements contained in the presentence report as to which there are no objections." Rather than adopting the PSR's contested findings, however, the court made its own findings. As to the obstruction of justice enhancement, the court found that Phillips's statements to the arresting officers justified the enhancement without addressing the accusations of perjury.²

The application notes to 3C1.1 make clear that not all false statements to law enforcement justify the enhancement. Application Note 1 generally provides that mere denials of guilt do not merit the enhancement. See id. comment. (n.1) ("A defendant's denial of guilt (other than a denial of guilt under oath that constitutes perjury) . . . is not a basis for application of this provision."); United States v. Surasky, 976 F.2d 242, 245 & n.2 (5th Cir. 1992) (distinguishing between a mere denial of guilt, which is not obstructive, and conduct which exceeds a mere denial and which could be obstructive). More specifically, Application Note 4(b) states that "making false statements, not under oath, to law enforcement officers" generally is not obstructive, "unless Application Note 3(g) above applies." Id. comment. (n.4(b)). Note 3(g), in turn, provides a highly specific example of a false statement to law enforcement officials which is obstructive: "providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense." Id. comment. (n.3(g)). The district court relied on Note 3(g) in applying the enhancement here, directly tracking the note's language.

Phillips's statements to the arresting officer, read in a light most favorable to him, see id. appl n. 1 ("In applying this provision, the defendant's testimony and statements should be evaluated in a light most favorable to the defendant."), did not support the enhancement because they did not significantly obstruct the investigation, see Surasky, 976 F.2d at 245 (comparing notes 3(g) and 4(b) and "hold[ing] that a false statement made by a defendant to law enforcement officers cannot constitute obstruction of justice unless the statement obstructs or impedes the investigation at issue significantly"). Phillips's statements that he had poor memory and his denial of ownership of the Suburban did not even relate to the methamphetamine investigation. Cf. USSG 3C1.1 comment. (n.5) (defining materiality according to whether the statement "if believed, would tend to influence or affect the issue under determination"); Surasky, 976 F.2d at 245-46 & n.4. Those which did relate to the investigation-Phillips'sclaim not to know who owned the drugs or the station wagon and his refusal to clarify his relationship with the McCravy-were "a mere denial of guilt." Surasky, 976 F.2d at 245. These statements did not give the officers false information which led them on a misdirected investigation, nor did they impede the investigation. See id. at 245-47;³ cf. United States v. Smith, 203 F.3d 884, 891 (5th Cir. 2000) (finding the enhancement appropriate for someone whose "statement went far beyond merely denying her own involvement or refusing to provide information, which would not qualify for the obstruction enhancement; she specifically sent the FBI investigators on the trail of unknown suspects, whom she specifically described in order to obstruct the investigation into her own and her co-conspirators' involvement"); United States v. Rickett, 89 F.3d 224, 226 (5th...