U.S. v. Mollner

• Decision Date: 04 May 2011
• Docket Number: No. 09–4158.,09–4158.
• Citation: 643 F.3d 713
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Christopher Noah MOLLNER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

643 F.3d 713

UNITED STATES of America, Plaintiff–Appellee,

v.Christopher Noah MOLLNER, Defendant–Appellant.

No. 09–4158.

United States Court of Appeals, Tenth Circuit.

May 4, 2011.

Jeremy M. Delicino, Salt Lake City, UT (Stephen R. McCaughey of McCaughey & Metos, Salt Lake City, UT, with him on the brief), for Defendant–Appellant.Karin M. Fojtik, Assistant United States Attorney (Carlie Christensen, United States Attorney, with her on the brief), Salt Lake City, UT, for Plaintiff–Appellee.Before KELLY, LUCERO, and HOLMES, Circuit Judges.HOLMES, Circuit Judge.

Defendant–Appellant Christopher Noah Mollner pleaded guilty to armed bank robbery, in violation of 18 U.S.C. § 2113. Prior to sentencing, the district court granted the government's motion to compel Mr. Mollner to testify at the trial of his co-defendant, Ira Burdell Wakefield, and to grant Mr. Mollner immunity for his testimony. However, Mr. Mollner refused to testify. At Mr. Mollner's sentencing hearing, the district court adjusted his offense level upward by two levels for obstruction of justice under U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3C1.1 based upon Mr. Mollner's refusal to testify, and sentenced Mr. Mollner to 100 months' imprisonment.¹

On appeal, Mr. Mollner challenges the district court's application of the obstruction-of-justice enhancement. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that the district court did not err by increasing Mr. Mollner's offense level for obstruction of justice. Accordingly, we AFFIRM his sentence.

DISCUSSION

“[W]e review sentences for reasonableness under a deferential abuse-of-discretion standard.” United States v. Alapizco–Valenzuela, 546 F.3d 1208, 1214 (10th Cir.2008). “Reasonableness review is a two-step process comprising a procedural and a substantive component.” United States v. Verdin–Garcia, 516 F.3d 884, 895 (10th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). “A challenge to the application of a sentencing enhancement tests the ‘procedural reasonableness' of a sentence, ‘which requires, among other things, a properly calculated Guidelines range.’ ” United States v. Cook, 550 F.3d 1292, 1295 (10th Cir.2008) (quoting United States v. Smith, 534 F.3d 1211, 1226 (10th Cir.2008)); see also Smith, 534 F.3d at 1226 (noting that the defendant's challenge to “the district court's application of the obstruction enhancement under USSG § 3C1.1” constitutes a procedural-reasonableness challenge). “When evaluating the district court's interpretation and application of the Sentencing Guidelines, we review legal questions de novo and factual findings for clear error, giving due deference to the district court's application of the guidelines to the facts.” United States v. Munoz–Tello, 531 F.3d 1174, 1181 (10th Cir.2008) (quoting United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir.2006)) (internal quotation marks omitted).

The district court concluded that Mr. Mollner's “refusal to testify at his co-defendant's trial after the immunity order was issued constitute[d] a willful obstruction of justice under Section 3C1.1,” and applied the two-level enhancement. R., Supp. Vol. 2, at 16 (Sentencing Hr'g Tr., dated July 8, 2009). On appeal, Mr. Mollner argues that because his “refusal to testify at his co-defendant's trial did not obstruct the investigation, prosecution, or sentencing of his own offense, the adjustment was clearly inapplicable.” Aplt. Opening Br. at 13 (emphasis added).

I. Bernaugh and Amendment 581 to U.S.S.G. § 3C1.1

Prior to November 1, 1998, it was clear in this circuit that U.S.S.G. § 3C1.1 applied to a defendant who obstructed justice in a case closely related to his own. During that period, U.S.S.G. § 3C1.1 provided that “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by levels.” U.S.S.G. § 3C1.1 (1990). We interpreted this version of U.S.S.G. § 3C1.1 in United States v. Bernaugh, and held that “the section 3C1.1 enhancement applies where a defendant attempts to obstruct justice in a case closely related to his own, such as that of a codefendant.” 969 F.2d 858, 861 (10th Cir.1992).

However, in 1998, subsequent to our decision in Bernaugh, the Sentencing Commission amended U.S.S.G. § 3C1.1. In Amendment 581, the Commission set forth the substance of the amendment and explained the reasons for it. See U.S.S.G. app. C, amend. 581 (2001). As a result of this amendment, effective November 1, 1998, the text of U.S.S.G. § 3C1.1 read:

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 conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by levels.

U.S.S.G. § 3C1.1 (1998).²

Amendment 581 also added a new application note 1 to the commentary of U.S.S.G. § 3C1.1:

This adjustment applies if the defendant's obstructive conduct (A) occurred during the course of the investigation, prosecution, or sentencing of the defendant's instant offense of conviction, and (B) related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) an otherwise closely related case, such as that of a co-defendant.

U.S.S.G. § 3C1.1 cmt. n. 1 (1998).³

Mr. Mollner contends that, in light of Amendment 581's changes to U.S.S.G. § 3C1.1 and its application notes, Bernaugh is no longer controlling precedent. See Aplt. Opening Br. at 9. Mr. Mollner reasons that:

While the literal language of the guideline in § 3C1.1 seems to apply broadly to the “instant offense of conviction,” the application notes restrict the scope of this adjustment. Indeed, while the pertinent application note closely tracks the language of the guideline, there is one critical distinction, namely that the application note requires that the obstructive conduct occur with respect to “the defendant's instant offense of conviction.” While this deviation is slight, it nonetheless clearly indicates the Commission's intent to restrict application of the adjustment to obstructive conduct relating solely to the defendant's instant offense of conviction.

Id. at 10–11 (citation omitted).

Accordingly, Mr. Mollner asserts that because his “refusal to testify at his co-defendant's trial did not obstruct the investigation, prosecution, or sentencing of his own offense, the adjustment [for obstruction of justice] was clearly inapplicable.” Id. at 13 (emphasis added).

We have not yet determined whether Bernaugh's holding survived Amendment 581 such that U.S.S.G. § 3C1.1's enhancement continues to apply to a defendant's obstruction of justice in a closely related case, such as that of a co-defendant.

II. U.S.S.G. § 3C1.1, as Amended by Amendment 581

The Sentencing Commission and some of our sister circuits have explained that the amended version of U.S.S.G. § 3C1.1 applies not only to the defendant's obstructive conduct involving his offense of conviction, but also to any of his obstructive conduct involving cases that are closely related to the defendant's case. We agree.

The Sentencing Commission explained that its purpose in issuing Amendment 581 was

to clarify what the term “instant offense” means in the obstruction of justice guideline, § 3C1.1. This amendment resolves a circuit conflict on the issue of whether the adjustment applies to obstructions that occur in cases closely related to the defendant's case or only those specifically related to the offense of which the defendant [was] convicted. The amendment, which adopts the majority view, instructs that the obstruction must relate either to the defendant's offense of conviction (including any relevant conduct) or to a closely related case.

U.S.S.G. app. C, amend. 581 (emphasis added) (citations omitted).

In noting that it was coming down on the side of the majority view, the Commission expressly acknowledged our decision in Bernaugh as reflecting that view. See id. In other words, the Commission indicated that the effect of the amendment was to embrace the holding of Bernaugh, not to reject it.

Several of our sister circuits have interpreted U.S.S.G. § 3C1.1, as revised by Amendment 581, in conformity with the Commission's explanation. Specifically, they have held that a defendant's perjurious testimony in a co-defendant's proceeding supports the application of the obstruction-of-justice enhancement.⁴ In United States v. Savoca, the defendant claimed that his perjurious testimony at his co-defendant's trial “did not constitute the prosecution of his own ‘instant offense of conviction,’ and thus, cannot qualify for an obstruction of justice enhancement.” 596 F.3d 154, 158 (2d Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 3528, 177 L.Ed.2d 1108 (2010). The Second Circuit rejected this argument, explaining that Amendment 581 “clarified that an obstruction of justice enhancement applies to conduct that occurred with respect to ‘an otherwise closely related case, such as that of a co-defendant.’ ” Id. (quoting U.S.S.G. § 3C1.1 cmt. n. 1).

Similarly, in United States v. Killingsworth, defendant Williams argued that his perjurious testimony at co-defendant Killingsworth's pre-sentencing evidentiary hearing could not “give rise to an obstruction-of-justice adjustment since the perjury occurred in a proceeding that involved another defendant.” 413 F.3d 760, 764 (8th Cir.2005). The Eighth Circuit concluded that “the adjustment would apply if the defendant obstructed justice in a co-defendant's case. This would include perjury that was immaterial to [the defendant's] own sentence and conviction because it was made during his testimony at the criminal...