United States v. Andrews

• Decision Date: 30 October 2015
• Docket Number: No. 14–4422.,14–4422.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Albert Lee ANDREWS, III, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

808 F.3d 964

UNITED STATES of America, Plaintiff–Appellee,

v.Albert Lee ANDREWS, III, Defendant–Appellant.

No. 14–4422.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 15, 2015.

Decided: Oct. 30, 2015.

ARGUED:Kearns Davis, Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., Greensboro, North Carolina, for Appellant. Robert Albert Jamison Lang, Office of the United States Attorney, Winston–Salem, North Carolina, for Appellee.ON BRIEF:W. Michael Dowling, Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, Office of the United States Attorney, Winston–Salem, North Carolina, for Appellee.

Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge MOTZ and Judge KEENAN joined.

WILKINSON, Circuit Judge:

Petitioner Albert Lee Andrews challenges here the imposition of a U.S.S.G. § 3C1.1 enhancement for obstructing the administration of justice. The district court applied the enhancement against the defendant for knowingly presenting false testimony at his trial. Inasmuch as the court's finding of obstruction was not clearly erroneous, we affirm the imposition of the enhancement.

I.

In the early morning hours of March 27, 2011, Andrews entered a Domino's Pizza store in Kannapolis, North Carolina armed with a handgun. He ordered an employee at gunpoint back into the office where the manager was working and demanded that the manager open the store safe. When he was told the safe was empty, Andrews stole money from the cash register and from two employees, as well as the manager's wallet. During the encounter, he pointed his gun at Domino's personnel and threatened to shoot on two occasions.

The manager immediately reported the robbery. While searching for Andrews, a police officer found an abandoned automobile that had run off the road and hit two other vehicles. He recovered two wallets from the car, one belonging to Andrews and the other to the Domino's manager. The vehicle also contained a cell phone with photos of Andrews' family, a traffic citation issued to Andrews, and a bill of sale showing that Andrews owned the vehicle. The cell phone record listed calls made and received in Kannapolis at the time of the robbery. Finally, the officer found a baseball cap that fitted the description of that worn by the robber and was shown through DNA analysis to belong to Andrews.

Andrews was charged with interference with commerce by robbery under 18 U.S.C. § 1951 and carry and use of a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii). The defendant pled not guilty and invoked his right to a jury trial. He filed several pro se motions, one of which accused prosecutors of intimidating potential witnesses and blocking their testimony. Prior to trial, he submitted a notice of alibi and a brief describing the alibi testimony. During his opening statement, Andrews' attorney identified two alibi witnesses: Jerrika Hunter, Andrews' girlfriend, and her mother, Monica Moffet. His counsel went on to preview the alibi testimony that each witness intended to give. At trial, Hunter and Moffet testified that Andrews was at their home on the night of the robbery. Another witness, Brandi Lark, the mother of one of Andrews' children, testified that he had visited her home during the night in question and told her that he had robbed a Domino's pizza store. Andrews chose not to testify. The jury found him guilty on all counts.

Upon reviewing Andrews' sentence, this court ruled that he no longer qualified for sentencing as a career offender, vacated his sentence, and remanded for resentencing. United States v. Andrews, 547 Fed.Appx. 248 (4th Cir.2013). Upon remand, the U.S. Probation Office issued a Memorandum that calculated Andrews' total offense level as 22. The government then requested a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. A revised Memorandum added the enhancement as requested, increasing the total offense level to 24. Andrews objected to the two-level enhancement for obstruction.

The district court found sufficient evidence to support the obstruction enhancement. The court stressed that Andrews knew that his attorney was going to present Hunter and Moffet as alibi witnesses. Given his regular communications with his attorney, Andrews must have been aware of the substance of Moffet and Hunter's testimony before trial. Andrews' prior knowledge of the false testimony and subsequent silence during trial, the court stated, amounted to obstruction of justice:

[W]hen a defendant sees somebody take the stand called by the defendant's lawyer and realizes that person is not telling the truth, that is absolutely telling something that is untrue, whether that defendant in sitting silently and ‘allowing that to proceed,’ takes a part in trying to deceive the Court.... [I]n this case, that's not all of it, because those witnesses testified one after the other. Mr. Andrews watched and heard the testimony of one provide false alibi evidence and sat there while the second was being called, which even if he had not been aware of the alibi information a week before, or the trial brief, which it stretches the imagination to think that he was not aware of it, he understood somebody was being called knowingly for the purpose of giving false information, all of which was being offered for the purpose of deceiving the jury into believing there was a reasonable doubt as to his whereabouts on the night of the armed robbery.

J.A. 39. The court resentenced Andrews to 115 months imprisonment on one count, 84 months consecutive on the other, and five years of supervised release. This appeal followed.

II.

A.

The sole issue before us is the propriety of the enhancement for obstruction of justice. U.S.S.G. § 3C1.1 sets forth in rather broad language the enhancement's scope:

If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant's offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.

The commentary to § 3C1.1 lists many examples of covered conduct of which subornation of perjury is one. U.S.S.G. § 3C1.1, cmt. n.4. The commentary then notes further that the above list is "non-exhaustive." Id. Finally, application note 9 of the commentary enumerates several ways in which a defendant can participate in the obstruction of justice: "[T]he defendant is accountable for the defendant's own conduct and for conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused." U.S.S.G. § 3C1.1, cmt. n. 9. The government bears the burden of proving the facts supporting the enhancement by a preponderance of the evidence. United States v. O'Brien, 560 U.S. 218, 224, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010).

In United States v. Dunnigan, the Supreme Court instructed district courts to establish "all of the factual predicates" of perjury when finding obstruction of justice on that basis. 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). Following that language, this court has reversed sentencing enhancements under § 3C1.1 where the district court failed to find a required factual element of perjury and provided no other basis for the enhancement.E.g. , United States v. Perez , 661 F.3d 189, 193–94 (4th Cir.2011) (faulting the district court for failing to find willfulness); United States v. Smith, 62 F.3d 641, 646–47 (4th Cir.1995) (finding the court below erroneously applied the enhancement without any specific factual findings). While the broader Guidelines language and commentary certainly suggest that obstruction of a trial may take other forms than subornation of perjury, that language in no way lessens the district court's obligation under our case law to find facts on the critical component of § 3C1.1, namely a willful obstruction or impediment of the administration of justice. Therefore, the enhancement is warranted if the court below made a proper finding of obstruction even if it did not specifically find subornation of perjury.

Many of the purposes animating separate prosecutions for perjury also underlie sentencing enhancements for perjurious obstruction. See Dunnigan, 507 U.S. at 97–98, 113 S.Ct. 1111. In fact, the obstruction enhancement of § 3C1.1 may be seen as an intermediate option between condoning patently false testimony altogether and undertaking separate prosecutions for perjury, which both drain prosecutorial resources and raise special difficulties of proof. The Supreme Court has underscored this relationship between the obstruction enhancement and prosecution for perjury:

A sentence enhancement based on perjury does deter false testimony in much the same way as a separate prosecution for perjury. But the enhancement is more than a mere surrogate for a perjury prosecution. It furthers legitimate sentencing goals relating to the principal crime, including the goals of retribution and incapacitation. It is rational for a sentencing authority to conclude that a defendant who commits a crime and then perjures herself in an unlawful attempt to avoid responsibility is more threatening to society and less deserving of leniency than a defendant who does not so defy the trial process.

Dunnigan, 507 U.S. at 97, 113 S.Ct. 1111 (citations omitted).

For the obstruction enhancement to function in this intermediate role and serve the purposes outlined by the Court, the district courts must be afforded adequate discretion in their fact-finding capacity. See Dunnigan, 507 U.S. at 95, 113 S.Ct. 1111 (treating the basis for obstruction of justice as an issue of fact left to the sentencing judge). District courts hold an...