U.S. v. Dale

• Decision Date: 17 August 2007
• Docket Number: No. 06-3224.,06-3224.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jason B. DALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

498 F.3d 604

UNITED STATES of America, Plaintiff-Appellee, v. Jason B. DALE, Defendant-Appellant.

No. 06-3224.

United States Court of Appeals, Seventh Circuit.

Argued June 4, 2007.

Decided August 17, 2007.

George A. Norwood (argued), Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee.

Jeffrey M. Brandt (argued), Jeffrey M. Brandt, Robinson Brandt Law Offices, Cincinnati, OH, for Defendant-Appellant.

Before RIPPLE, ROVNER and SYKES, Circuit Judges.

RIPPLE, Circuit Judge.

Jason B. Dale was indicted on one count of conspiring to manufacture and to distribute 500 grams or more of a substance containing methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. Mr. Dale pleaded guilty and was sentenced to 180 months' imprisonment. Before this court, he contends that the district court erred when it applied a two-level increase to his offense level for obstruction of justice. See U.S.S.G. § 3C1.1. He further claims that his sentence is unreasonable. For the reasons set forth in this opinion, we affirm the judgment of the district court.

I BACKGROUND

A.

Mr. Dale and his father were involved in a conspiracy to manufacture and to distribute methamphetamine that lasted from July 2002 until May 2005. During that period, Mr. Dale not only sold methamphetamine but used the drug himself. While participating in the conspiracy, Mr. Dale exhibited violent behavior. He threatened a number of people with violence to avoid prosecution and had threatened and beaten a former girlfriend whom he suspected of cooperating with law enforcement. Additionally, following an arrest for driving under the influence, Mr. Dale had threatened to kill the arresting officer and to rape the officer's daughter.

In May 2005, Mr. Dale was confronted about his lifestyle by C. Randall Shively, his then-current girlfriend's father. Mr. Dale left the conspiracy, and Shively took Mr. Dale into his home. Over the next few months, Mr. Dale stopped using methamphetamine and broke off contact with his father. At some point, Mr. Dale began attending religious services and substance abuse counseling meetings and had enrolled in college classes. In November 2005, Mr. Dale learned of a warrant for his arrest in connection with the methamphetamine conspiracy. He surrendered to authorities the following day and was released on a recognizance bond.

B.

Mr. Dale was charged with conspiring to manufacture and to distribute more than 500 grams of a substance containing methamphetamine. In May 2006, Mr. Dale pleaded guilty to the charge, but remained on bond pending sentencing.

On June 30, 2006, the Probation Department issued its presentence investigation report ("PSR"). The PSR identified Maria Winchester, Mr. Dale's cousin, as a potential witness against him based on an encounter in May 2005.¹ On the night of July 9, 2006, while Mr. Dale remained on bond awaiting sentencing, Mr. Dale and his brother-in-law, Matt Carr, went to the Pasta House restaurant, where Winchester worked. They went there in order to meet Mr. Dale's girlfriend and another woman. When Winchester walked past the table where they were sitting, she heard someone call her "snitch" or "bitch" and other profane or otherwise derogatory names. Winchester told her manager, Vickie Sue Niles, about the comments. Niles approached the table to confront Mr. Dale and the others. Mr. Dale attempted to explain his version of events, but the confrontation soon escalated. Mr. Dale swore at Niles and got up to leave the restaurant. Mr. Dale passed Winchester as he left the restaurant and threatened to kill her.

Mr. Dale's bond was revoked because of his threat to Winchester and because he had consumed alcohol while on bond. The Government then requested, and the Probation Department recommended in a revised PSR, that the district court apply § 3C1.1 and impose a two-level increase in Mr. Dale's offense level as a result of the threats made by Mr. Dale to Winchester.

At sentencing, the district court heard testimony from a number of individuals. Some testified about Mr. Dale's conduct when he was involved in the conspiracy; others testified to the personal progress that Mr. Dale had made since May 2005. The district court also heard testimony from Winchester and from co-workers regarding the incident at the Pasta House. Winchester and others testified that, following the confrontation between Mr. Dale and Winchester's supervisor, Mr. Dale had threatened her life. The district court credited this testimony and, because Winchester had been a potential witness in Mr. Dale's sentencing at the time of the threat, imposed a two-level increase in Mr. Dale's offense level under advisory guidelines § 3C1.1 for obstruction of justice.

The district court also applied a two-level enhancement for possession of a firearm in furtherance of the conspiracy and a three-level decrease for acceptance of responsibility. This brought Mr. Dale's total offense level to 35.² With Mr. Dale's criminal history category of I, this computation resulted in an advisory guidelines range of 168-210 months' imprisonment. After considering the § 3553(a) factors and hearing from the Government and Mr. Dale, the court imposed a sentence of 180 months' imprisonment.

II DISCUSSION

Mr. Dale now appeals his sentence. He contends that the district court erred when it imposed a two-level enhancement for obstruction of justice. He further submits that the sentence imposed was unreasonable in light of § 3553(a). "We review the district court's application of the Guidelines de novo and its factual determinations for clear error." United States v. Warren, 454 F.3d 752, 762 (7th Cir.2006). We review the sentence imposed by the district court taken as a whole for reasonableness in light of the factors set forth in 18 U.S.C. § 3553(a). United States v. Williams, 425 F.3d 478, 480 (7th Cir.2005).

A.

Mr. Dale first asserts that the district court erred when it applied guidelines § 3C1.1 to impose a two-level increase in his offense level for obstruction of justice based on the threat made to Winchester. After hearing testimony regarding the events at the Pasta House on July 9, 2006, the district court concluded that Mr. Dale had threatened Winchester's life and that the threat constituted an obstruction of justice under § 3C1.1. Mr. Dale submits that these factual findings do not support an enhancement for obstruction of justice under § 3C1.1 because the facts do not demonstrate that Mr. Dale threatened Winchester because she was a potential witness against him.

Whether a statement can constitute obstruction of justice presents a legal interpretation of the guidelines and is subject to plenary review. See United States v. Gibson, 155 F.3d 844, 846 (7th Cir.1998) ("Whether a . . . statement can constitute an express threat of death involves the legal interpretation of a sentencing guideline which we review de novo."). If a statement, as a matter of law, can constitute an obstruction of justice, the determination of whether the statement did constitute an obstruction of justice under the circumstances is a question of fact which we review for clear error. See United States v. Hanhardt, 361 F.3d 382, 387 (7th Cir.2004), vacated on other grounds, Altobello v. United States, 543 U.S. 1097, 125 S.Ct. 994, 160 L.Ed.2d 996 (2005); Gibson, 155 F.3d at 846. Clear error occurs when "after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed." Hanhardt, 361 F.3d at 388 (citing United States v. McGill, 32 F.3d 1138, 1143 (7th Cir.1994)).

The advisory guidelines impose a two-level enhancement to a defendant's offense level for obstruction of justice in connection with the investigation, prosecution or sentencing related to the defendant's offense of conviction.³ U.S.S.G. § 3C1.1. Such obstructive conduct includes "threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so." Id. Application Note 4(a). We have held that § 3C1.1 "requires specific intent to obstruct justice," and the burden rests on the Government to establish such intent by a preponderance of the evidence. United States v. Ewing, 129 F.3d 430, 434 (7th Cir.1997); see also United States v. Henderson, 58 F.3d 1145, 1153 (7th Cir. 1995).⁴ This intent requirement flows from the text of the guideline, which calls for an enhancement when the defendant "willfully obstruct[s] or impede[s], or attempt[s] to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction." U.S.S.G. § 3C1.1 (2005); see also United States v. Altman, 901 F.2d 1161, 1164 (2d Cir.1990).

Mr. Dale submits that the district court erred when it applied § 3C1.1 because the Government did not establish that he acted with specific intent. He points to the district court's statement at sentencing that

[a]nytime someone states [] to someone who is a witness or potential witness or was part of the discovery that provided [] the information for the government during the investigation of the instant offense, threatens to kill somebody, I can't think of any[]more obstructive behavior than that.

R.89 at 152. Standing alone, this statement suggests that the district court believed that any threat to a potential witness constituted obstruction, regardless of whether the statement was made with the specific intent to obstruct justice. However, viewing the record as a whole, we do not believe that the district court misapprehended the intent necessary to impose an enhancement under § 3C1.1.

Before ruling on the applicability of the obstruction enhancement, the court read the full text of § 3C1.1 into the record, including the requirement that the defendant act willfully in order for his conduct to fall within the enhancement. Because the specific intent requirement is derived from the...