U.S. v. Massey, No. 05-11514.

• Decision Date: 23 March 2006
• Docket Number: No. 05-11514.
• Citation: 443 F.3d 814
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marissa Giselle MASSEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

443 F.3d 814

UNITED STATES of America, Plaintiff-Appellee, v. Marissa Giselle MASSEY, Defendant-Appellant.

No. 05-11514.

United States Court of Appeals, Eleventh Circuit.

March 23, 2006.

COPYRIGHT MATERIAL OMITTED

Mauricio L. Aldazabal (Court-Appointed), Miami, FL, for Defendant-Appellant.

Jeanne Marie Mullenhoff, Anne R. Schultz, Asst. U.S. Atty., Lisa T. Rubio, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BIRCH and MARCUS, Circuit Judges, and NANGLE^*, District Judge.

BIRCH, Circuit Judge:

Marissa Massey appeals her 87-month sentence after she pled guilty to conspiracy to import 100 grams or more of heroin and assault on a federal officer. She argues that the district court erred in enhancing her sentence by 2 levels for attempting to obstruct the administration of justice under U.S.S.G. § 3C1.1 (2004), both because (1) she lacked the capacity to "willfully" obstruct justice and (2) her actions did not materially hinder the investigation or prosecution. Finding no reversible error with regard to the sentencing enhancement, we AFFIRM the sentence; however, we VACATE and REMAND for the limited purpose of correcting a clerical error in the judgment.

I. BACKGROUND

On 9 October 2004, Massey and two other defendants arrived at Miami International Airport from Ecuador. United States Customs and Border Protection ("CBP") suspected that they were internal carriers of drugs. At the secondary inspection at the airport, the defendants consented to x-rays, which showed that all three had two to three foreign objects in their pelvic regions.

The defendants were sent to Jackson Memorial Hospital, Ward D. While there, the defendants refused treatment and were verbally abusive with CBP and medical staff. Massey, in particular, screamed threats and profanities at anyone nearby. During this time, she had one leg and hand handcuffed to the side of her bed. Due to her increasingly belligerent behavior, CBP officers decided to handcuff her other hand to the bed. Unbeknownst to CBP, Massey had already taken two of the three foreign objects from her body and hidden them inside her pillow. She resisted being handcuffed and repeatedly hit an officer, until she was eventually restrained by several more CBP officers. On route to radiology later that day, Massey spit in the face of the same officer she had hit before and threatened further violence.

The next day, Massey, still in Ward D, admitted to an officer that she had something inside her and was trying to pull it out. Medical staff were unable to remove the object. During this time, Massey became angry, got off the examining table, and went back to her room. Her arms and legs were no longer handcuffed as she had been complying. Later that night, she pulled the covering off the object still inside her and went into medical distress. She was then taken to Obstetrics and Gynecology, where doctors removed the object and some brown powder, which later tested positive for heroin. While there, Massey went into respiratory arrest. She recovered, and the following day she was taken off the respirator.

On 11 October 2004, after Massey was taken to Obstetrics and Gynecology, CBP officers conducted a search of her room in Ward D. They discovered the two objects that she had hidden in her pillow. They also found that she had unsuccessfully attempted to make a hole in her mattress. The other two defendants eventually admitted to CBP officers that they had foreign objects and consented to having them removed. All of the objects found in the vaginal canal of each defendant tested positive for heroin. Massey was released from Jackson Memorial Hospital on 13 October 2004.

The Drug Enforcement Administration laboratory determined that the heroin seized from Massey had a net weight of 147.3 grams. The total weight of heroin seized from all three defendants was 549.1 grams. Pursuant to a plea agreement, Massey pled guilty to Count One and Count Nine in the indictment, respectively, conspiracy to import 100 grams or more of heroin, in violation of 21 U.S.C. § 960(a), (b)(2)(A) and 21 U.S.C. § 963, and assaulting a federal officer, in violation of 18 U.S.C. § 111(a)(1).

At her plea hearing, Massey stated that she took Zoloft to treat her bipolar disorder. She claimed that she did not remember everything that happened at the hospital because she did not receive Zoloft during her stay there and was under the influence of the heroin that had burst inside her. Her defense attorney argued, and the government conceded, that this might be a mitigating factor with regard to Massey's ultimate sentence.

In calculating the base offense level for Count One, the presentence investigation report ("PSI") noted that the defendants were held equally accountable for the 549.1 grams of heroin. The Sentencing Guidelines provide that an offense involving the importation of at least 400 grams but less than 700 grams of heroin has a base offense level of 28. U.S.S.G. § 2D1.1(c)(6). After a 2-level enhancement for the obstruction of the justice under U.S.S.G. § 3C1.1, the defendant's adjusted offense level for Count One was 30. Count Nine had an adjusted offense level of 13. The combined adjusted offense was 30, which was reduced by 3 levels for an acceptance of responsibility and for timely notifying authorities of her intention to plead guilty. For a total adjusted offense level of 27, the applicable Guidelines range was 87 to 108 months.

In the objection to the PSI, Massey argued that the 2-level enhancement for obstruction of justice should not be applied and stated that the lack of Zoloft "clearly added to her mental anxiety and instability. . . . Coupled with the heroin overdose. . . it is hard to see how . . . the hiding of the heroin in the hospital pillow . . . was a `material hindrance to the official investigation or prosecution of the instant offense or the sentencing of the offender.'" R1-45 at unnumbered 2. At her sentencing hearing, Massey's attorney repeatedly referenced the fact that she was "under psychiatric medical care [and] was taking Zoloft," R4 at 4, and that her "very unstable mental and physical condition" would not justify an adjustment for obstruction. Id. at 6-7. The district judge rejected Massey's objection, applied the 2-level enhancement, and sentenced Massey to 87 months of incarceration followed by four years of supervised release.

II. DISCUSSION

As stated before, Massey raises two objections on appeal to the application of U.S.S.G. § 3C1.1, which enhances a sentence for willfully obstructing the administration of justice. First, she argues that her actions were not willful. Second, she contends that her actions were not a material hindrance to the investigation or prosecution of the offense. After discussing the standards of review, we will address these two objections, and the clerical error in the judgment, in turn.

A. Standard of Review

Though United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), has rendered the Sentencing Guidelines advisory, the standards of review remain the same. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). When a district court imposes an enhancement for obstruction of justice, we review the district court's factual findings for clear error. United States v. Uscinski 369 F.3d 1243, 1246 (11th Cir.2004); see also Merrill Stevens Dry Dock Co. v. M/V Yeocomico II, 329 F.3d 809, 816 (11th Cir. 2003) (stating that under clear error, we must affirm the district court's determination so long as it is "plausible in light of the record viewed in its entirety"). We review the district court's application of the Sentencing Guidelines to those facts de novo. Uscinski, 369 F.3d at 1246.

When the appealing party does not clearly state the grounds for an objection in the district court, we are limited to reviewing for plain error. United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir.2003) (citation omitted). "An appellate court may not correct an error the defendant failed to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights . . . . [and then] only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Shelton, 400 F.3d 1325, 1328-29 (11th Cir.2005) (citation and quotations omitted).

B. Whether Massey Acted Willfully

Massey argues that her lack of Zoloft and ingestion of heroin left her without the capacity to willfully obstruct justice. The government responds that Massey failed to object to the "willful" component of U.S.S.G. § 3C1.1 in the PSI or at the sentencing hearing and therefore has not preserved that issue for appeal. As such, the government argues that this objection should be reviewed under the plain error standard.

We have held that, for a defendant to preserve an objection to her sentence for appeal, she must "raise that point in such clear and simple language that the trial court may not misunderstand it." United States v. Riggs, 967 F.2d 561, 565 (11th Cir.1992). When the statement is not clear enough to inform the district court of the legal basis for the objection, we have held that the objection is not properly preserved. Id. The defendant also fails to preserve a legal issue for appeal if the factual predicates of an objection are included in the sentencing record, but were presented to the district court under a different legal theory. See United States v. Reyes-Vasquez, 905 F.2d 1497, 1499-1500 (11th Cir.1990).

Here, the record shows that Massey's attorney, in objecting to the enhancement for obstruction of justice, repeatedly referenced the effect of Zoloft and heroin on her mental state during her stay in the hospital. In so doing, he did not specifically utter the words "intent" or "mens rea," and he often referred to the fact that there was no "material hindrance," a...