U.S. v. Henry

• Decision Date: 06 March 2009
• Docket Number: No. 07-3142.,07-3142.
• Citation: 557 F.3d 642
• Parties: UNITED STATES of America, Appellee v. Ricardo HENRY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

557 F.3d 642

UNITED STATES of America, Appellee v. Ricardo HENRY, Appellant.

No. 07-3142.

United States Court of Appeals, District of Columbia Circuit.

Argued January 8, 2009.

Decided March 6, 2009.

Appeal from the United States District Court for the District of Columbia (No. 06cr00079-01).

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jaffee and Mary M. Petras, Assistant Federal Public Defenders, entered appearances.

Jeffrey A. Taylor, U.S. Attorney, argued the cause for appellee. With him on the brief were Roy W. McLeese III, Elizabeth Trosman, Thomas E. Zeno, and Suzanne G. Curt, Assistant U.S. Attorneys.

Before: ROGERS and BROWN, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

This appeal involves the question whether harassing telephone calls made by Ricardo Henry to the family of a government auditor constitute obstructing justice within the meaning of § 3C1.1 of the U.S. Sentencing Guidelines ("U.S.S.G.") and so justified a two-point enhancement of his sentence. Section 3C1.1 requires "willful" conduct. Although a finding regarding a defendant's intent to obstruct justice may not be required where conduct is obviously obstructive and the defendant knew it would be, the obstructive nature of Henry's conduct is clouded because he apparently attempted to disguise his identity in placing the calls and did not otherwise link the calls to the auditor's investigation of him. Accordingly, we must remand the case for the district court to clarify the factual basis for the enhancement and, if necessary, resentencing.

I.

Henry was president of Insight Therapeutic Services, Inc., a mental health clinic in the District of Columbia that submitted claims to Medicaid for mental health services rendered by Henry and others. On May 11, 2006, Henry was indicted for health care fraud, submitting false claims to Medicaid, bankruptcy fraud, and a variety of related offenses. On December 12, 2006, he pled to one count of submitting a false Medicaid claim, and the government moved to dismiss the remaining charges. The calculated Sentencing Guidelines range, including a two-point § 3C1.1 enhancement for obstruction of justice, was 27 to 33 months; the government recommended a sentence of no more than 27 months as set out in the plea agreement. The district court sentenced Henry to 20 months incarceration and 24 months supervised release.

In enhancing Henry's sentence, the district court based its understanding of the relevant facts on the grand jury testimony of Henry's sister and an FBI agent, as well as a report written by Special Agent Gerald Goldstein of the Office of the D.C. Inspector General. That record indicates Agent Goldstein was investigating Henry for Medicaid fraud. Henry apparently knew this because Agent Goldstein had in person requested documents from Henry in November 2001 and was the affiant on a search warrant for Henry's place of business in June 2002. Henry left several telephone messages on Agent Goldstein's answering machine in regard to the investigation after each of these two encounters. On August 31, 2002, Agent Goldstein's two adult daughters received telephone calls from a blocked number in which the caller identified himself as an agent of the Justice Department. The caller claimed to be investigating Agent Goldstein for "abusing his power" and stated he would send an agent to meet with the daughters. The caller had an accent, but the record is unclear as to what kind: Agent Goldstein in 2007 reported that one of his daughters identified the caller's accent as Carribean but the sealed record presents contradictory evidence. Both calls ended inconclusively soon afterward, and the daughters informed their father of the calls. On September 5, 2002, Agent Goldstein's mother received a similar call, which she immediately reported to her son.

The district court found by a preponderance of the evidence that Henry made the calls to the Agent's family, and, although Henry denied it at the sentencing hearing, he now concedes as much, see Appellant's Br. at 12. The district court adopted the recommendation of the presentencing report and, over Henry's objection, added a twopoint enhancement for obstruction of justice based on the calls. Henry had argued that his conduct did not constitute obstruction of justice because he attempted to disguise his identity and avoided otherwise linking the calls to the ongoing investigation and thus intended only to harass and not to intimidate or influence a witness or hamper the investigation. The district court rejected his argument, observing: "Special Agent [Goldstein] linked these calls to the Defendant, [with] the heavy Carribean accent, and the Defendant in these voice mails had accused the Special Agent of, quote, abusing his authority, unquote, which [during] one of the calls the caller had told the agent's family about Special Agent Goldstein and used those words." Sentencing Hr'g. at 7. The district court therefore concluded that Henry's "purpose was to influence the witness [Agent Goldstein]." Id. Unpersuaded by Henry's objection that his behavior did not show an intent to obstruct justice because there was not a significant enough link between the calls and the investigation, the district court stated: "I don't know of any other message other than I can get to you through family or whatever.... So, I think in terms of the intent, I think it goes beyond just harassing...." Id. at 18.

II.

On appeal Henry contends that a sentencing enhancement under § 3C1.1 can apply only when a court finds the defendant either intended to obstruct justice or engaged in "inherently obstructive" conduct. Because he made efforts to hide the link between the harassing calls and the investigation, and because the record does not support the district court's apparent conclusion that he made the calls using his own accent, Henry maintains that the district court erred in enhancing his sentence and his case must be remanded for resentencing.

A.

The Supreme Court has instructed that "a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range." Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007); see United States v. Gardellini, 545 F.3d 1089, 1092 n. 2 (D.C.Cir.2008). The parties disagree about the proper standard for our review. The government would apply a clear error standard to the obstruction of justice ruling, citing United States v. Dozier, 162 F.3d 120, 123 (D.C.Cir.1998), while Henry distinguishes that case as involving the purely factual question of what conduct was committed whereas his appeal involves the question whether conduct that was clearly committed constitutes obstruction under U.S.S.G. § 3C1.1. In Henry's view the relevant precedent is United States v. Day, 524 F.3d 1361 (D.C.Cir.2008), where the court upheld a § 3C1.1 enhancement because it was "not error under the due deference standard," id. at 1373-74.

Before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this court reviewed sentencing challenges under the "trichotomy" established in 18 U.S.C. § 3742(e): "[P]urely legal questions are reviewed de novo; factual findings are to be affirmed unless `clearly erroneous'; and we are to give `due deference' to the district court's application of the guidelines to facts." United States v. Kim, 23 F.3d 513, 517 (D.C.Cir.1994). Due deference lies "presumably ... somewhere between de novo and `clearly erroneous.'" Id. In Booker, the Supreme Court held § 3742(e) unconstitutional to the extent it required an appellate court to reverse a sentence that fell outside the Guidelines range, 543 U.S. at 245, 125 S.Ct. 738. In United States v. Tann, 532 F.3d 868 (D.C.Cir. 2008), this court held that, after Booker, the trichotomy described in Kim remains in place and the due deference standard still applies to the application of Guidelines to facts:

The "due deference" standard survives Booker because that case did "not change[ ] how the Guidelines range is to be calculated." United States v. Dorcely, 454 F.3d 366, 375 n. 6 (D.C.Cir.2006). Accordingly, when we apply the first step of the two-step process outlined in Gall and [United States v.] Olivares [473 F.3d 1224 (D.C.Cir.2006)], we do precisely what we did prior to Booker — determine whether the district court correctly calculated the Guidelines range and remand for resentencing if it did not. We therefore see no reason to think Booker displaced the congressionally mandated standard of review of a district court's application of the Guidelines to facts. As we noted in Olivares, every circuit to have considered the matter has arrived at the same conclusion. 473 F.3d at 1227-28.

Tann, 532 F.3d at 874.

Tann involved a two-point sentencing enhancement for the abuse of a position of trust, id.; U.S.S.G. § 3B1.3. Due deference is also appropriate here. Although at times our § 3C1.1 precedent has used phrases more in keeping with review for clear error, see, e.g., United States v. Monroe, 990 F.2d 1370 1376 (D.C.Cir.1993), or de novo review, see, e.g., United States v. Taylor, 997 F.2d 1551, 1560 (D.C.Cir.1993), when the court has focused on whether particular conduct was sufficient to warrant the enhancement, it has largely accorded due deference, see, e.g., Day, 524 F.3d at 1373-74; United States v. Maccado, 225 F.3d 766, 769 (D.C.Cir.2000); see also Kim, 23 F.3d at 517.

B.

Section 3C1.1 of the 2000 version of the Guidelines, which applies to Henry's sentencing, provides:

If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive...