U.S. v. England, 08-2440.

• Decision Date: 13 February 2009
• Docket Number: No. 08-2440.,08-2440.
• Citation: 555 F.3d 616
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David H. ENGLAND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

555 F.3d 616

UNITED STATES of America, Plaintiff-Appellee, v. David H. ENGLAND, Defendant-Appellant.

No. 08-2440.

United States Court of Appeals, Seventh Circuit.

Argued January 21, 2009.

Decided February 13, 2009.

Monica Mallory, Attorney (argued), Office of the United States Attorney, Rockford, IL, Peter M. Jarosz, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Martin J. Bishop, Attorney, Thomas R. Mikrut, Attorney (argued), Foley & Lardner, LLP, Chicago, IL, for Defendant-Appellant.

Before POSNER, FLAUM, and WOOD, Circuit Judges.

FLAUM, Circuit Judge.

A jury convicted defendant-appellant David H. England of one count of illegal possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and three counts of obstruction of justice under 18 U.S.C. §§ 1512(b)(1), 1512(b)(2)(B), and 1512(a)(2). On April 27, 2006, the district court sentenced England to 262 months' imprisonment. England appealed his conviction and sentence to the Seventh Circuit. On November 7, 2007, we affirmed England's conviction, but we vacated his sentence and remanded his case back to the district court for resentencing. United States v. England, 507 F.3d 581 (7th Cir. 2007). On June 2, 2008, the district court conducted a new sentencing hearing and sentenced England to 210 months. England now appeals that sentence. For the following reasons, we vacate England's sentence and remand for resentencing.

I. Background

Police arrested England for allegedly breaking a car window with the butt of a gun on September 15, 2004. While in custody, England called his sister, Dawn Bull, and asked her to move the car to his grandmother's house and "put a tarp over it." He also called his brother-in-law, Robert Bull, inquiring as to the whereabouts of the car and telling Bull not to let anyone use it. On September 26, after moving the car, England's sister and mother found a blue duffle bag in the engine compartment. Concerned about the contents of the bag, they flagged down a police officer who removed it and found a bloodied gun inside. Police conducted DNA analysis on the recovered blood and matched the sample to England.

Upon learning of the gun's recovery, England became concerned that his sister and mother were cooperating with police. On September 27, England called his brother-in-law and told him to make sure that his sister and his mother "don't get out o' hand" and told him to "control them women." Later, on November 1, he also asked his sister to corroborate his alibi, saying that he did not "understand why a ... couple of my family members can't ... recognize they were up there at Barnes and Noble that particular day, and they seen me up there." His sister Dawn refused.

On November 23, a federal grand jury indicted England. The indictment charged one count of unlawful possession of a firearm by a felon under 18 U.S.C. § 922(g)(1).

On December 15, England learned that his brother-in-law had been cooperating with the police, which angered England. He could not call his brother-in-law directly as Bull had blocked all calls from the prison, so England called his father, Ben England, instead. He told his father that he would "put some bullets in somebody's head" and asked his father to "talk with [Bull] man to man." On December 27, England went further, asking his father to "go relay a message to Robert" that if he "shows up to court, when I walk outta prison in fifteen years, I'm `onna fuckin' murder his motherfuckin' ass."

On March 1, 2005, a grand jury issued a superseding indictment, tacking on two counts of witness tampering and one count of threatening a witness. Count II charged England with attempting to persuade a witness to provide a false alibi for him under 18 U.S.C. § 1512(b)(1). Count III charged England with attempting to cause witnesses to conceal evidence under § 1512(b)(2)(B). Count IV charged England with threatening physical force against a witness, his brother-in-law, Robert Bull, in order to influence his testimony under § 1512(a)(2).

England represented himself at trial, which was held on January 3-6, 2006. With respect to Count IV, at trial England's father testified that he never relayed the threats to Bull. Bull testified that England never directly threatened him, and he did not learn of England's statements until the government alerted him later in the investigation. On January 6, the jury convicted England on all four counts.

At sentencing, the district court requested briefing on the appropriate guidelines section to apply to Count IV, which charged threatening physical force against a witness. The presentence investigation report (PSR) stated that U.S.S.G. § 2A2.1(a)(1) was appropriate. That section covers "Assault with Intent to Commit Murder; Attempted Murder" and has a base offense level of 33. The court, however, directed both parties to brief whether U.S.S.G. § 2J1.2 might be more appropriate. That section covers "Obstruction of Justice" and would result in an offense level of 22.¹ The court stated, "I think 2J1.2(a) probably is [applicable] because this is only a threat. It's not an attempt that could have been charged or that is the alternate in that section."

However, the court ultimately found that § 2A2.1 was appropriate. In so doing, the court first looked to the statutory index in Appendix A and located 18 U.S.C. § 1512(a). The Appendix indicated that § 1512(a) applied to four separate guidelines sections. The court indicated that § 2J1.2 was not one of the four guidelines sections listed in the index. Pursuant to our holding in United States v. Lanas, 324 F.3d 894 (7th Cir.2003), the court reasoned that "Assault with Intent to Commit Murder; Attempted Murder" was the most germane of the listed sections, and it stated that it had to "apply the offense guidelines referenced in the statutory index to the statute of conviction unless the case falls within the limited stipulation exception," which was inapplicable. Although the court found it "somewhat difficult in this case," it applied § 2A2.1 and set the base offense level at 33. The advisory guideline range using § 2A2.1 was 210 months to 262 months. At the sentencing hearing, England presented evidence in an effort to persuade the district court that a shorter sentence was warranted. Ben England testified that he did not take his son's threats against Robert Bull seriously because his son was merely angry. He also testified that no one in his family fears his son. Robert Bull, the purported target of the threat, testified that England was merely "blowing off steam," and that he did not feel threatened by England. Nevertheless, the court sentenced England to 262 months, the upper limit of the advisory guideline range for attempted murder.

England appealed his conviction and his sentence. We affirmed England's conviction, but we vacated his sentence and remanded the case to the district court for resentencing.

In evaluating England's sentence, we examined the legislative history for 18 U.S.C. § 1512, and we found that the absence of guideline § 2J1.2 from the statutory index was likely the result of a "fairly pernicious scrivener's error" that occurred when § 1512(a) was substantially amended in 2002 but the guidelines were not updated to reflect those statutory changes. Id. at 591-92. While England claimed his sentence was unreasonable, we did not find it necessary to reach the reasonableness of England's sentence. We stated that the record on appeal lacked any indication that the district court considered "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," as required by § 3553(a)(6), and therefore the record was inadequate to evaluate the district court's use of its discretion. Id. at 590-92. We continued that a potential disparity might arise where a threat was sentenced at the same level as an attempted murder, and that this disparity could provide a basis for a variance. Id. We indicated that the district court should explain its view on the potential disparity as part of its § 3553(a) analysis, and we vacated and remanded for resentencing to give it a chance to do so. Id.

Following our decision, the United States Sentencing Commission proposed amendments to the guidelines to include, among other things, a "technical amendment" adding § 2J1.2 to the statutory index for convictions under § 1512(a). See Sentencing Guidelines for United States Courts, 73 Fed.Reg. 4931, 4936 (Jan. 28, 2008). On May 1, 2008, the Sentencing Commission sent the amendments to Congress to become effective on November 1, 2008. See Sentencing Guidelines for United States Courts, 73 Fed.Reg. 26924, 26936 (May 9, 2008). The Sentencing Commission commented: "The amendment also adds a reference to § 2J1.2 (Obstruction of Justice) for a violation of 18 U.S.C. § 1512(a) to reflect the broad range of obstructive conduct, including the use of physical force against a witness, covered by the subsection." Id.

On June 2, 2008, the district court held the remanded sentencing hearing. Following argument by the parties, the court permitted England to allocute at length. England admitted his crimes of carrying a gun and obstruction of justice, and he acknowledged they were wrong. He also stated that he would not harm anyone once he was released from prison, nor would he carry a gun.

The district court then issued its sentencing decision. The court noted that the advisory guidelines range that it had applied previously was correct, although there might have been a scrivener's error in the guidelines, and that it was bound to apply the same advisory sentencing guidelines range used at the original hearing.

The court then considered the § 3553(a) factors to determine whether England should be sentenced within, above, or below the advisory guidelines range. The court stated it was considering all of the evidence and the arguments from the original...