U.S. v. Olunloyo, 92-3895

• Decision Date: 03 December 1993
• Docket Number: No. 92-3895,92-3895
• Parties: UNITED STATES of America, Appellee, v. Olufunsho OLUNLOYO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

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10 F.3d 578

UNITED STATES of America, Appellee, v. Olufunsho OLUNLOYO, Appellant.

No. 92-3895.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 18, 1993.

Decided Dec. 3, 1993.

Adam Bourgeois, Chicago, IL, argued, for appellant.

Sam C. Bertolet, St. Louis, MO, argued, for appellee.

Before BOWMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BOWMAN, Circuit Judge.

Olufunsho Olunloyo appeals the sentence imposed by the District Court ¹ after he pleaded guilty to a three-count indictment. We affirm.

I.

On May 21, 1992, Olunloyo travelled to St. Louis, Missouri, for the purpose of selling heroin. Unbeknownst to Olunloyo, the buyer was an agent of the Drug Enforcement Administration ("DEA"). The parties met in a drugstore parking lot. After the undercover agent displayed the money, Olunloyo handed her two socks containing approximately 224 grams of heroin. At that moment, DEA agents, wearing raid jackets emblazoned with "DEA" and a replica of a badge, advanced to arrest Olunloyo. Olunloyo fled. The agents apprehended him a short distance away. Olunloyo, however, continued to resist arrest by grabbing, kicking and pushing the agents attempting to arrest him. Eventually, the agents subdued him, and he made no further attempts to flee or resist.

In a three-count indictment, Olunloyo was charged with conspiracy to possess with the intent to distribute more than 100 grams of heroin in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1988), possession with intent to distribute more than 100 grams of heroin in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B) (1988 & Supp. III 1991), and forcible interference with federal agents during the execution of their duties in violation of 18 U.S.C. Sec. 111 (1988). Olunloyo pleaded guilty to all three counts pursuant to a stipulation of facts and an unconditional plea agreement.

The presentence report ("PSR") computed Olunloyo's base offense level under the United States Sentencing Commission Guidelines (hereinafter "Guidelines" or "U.S.S.G.") ² as 26. ³ United States Sentencing Commission, Guidelines Manual, Sec. 2D1.1 (Nov. 1992). In doing so, it grouped the two drug offenses together pursuant to U.S.S.G. Sec. 3D1.2(d), because the offense level is primarily based on the quantity of drugs involved. The forcible interference conviction was "treated as an [obstruction-of-justice] adjustment to the offense level applicable to [the drug offenses]." PSR at 4. This two-level upward adjustment brought the total offense level to 28. The PSR recommended against a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1, which states that where a defendant receives an enhancement for obstruction of justice, a reduction for acceptance of responsibility should not be given absent "extraordinary" circumstances. U.S.S.G. Sec. 3E1.1, comment. (n. 4).

At the sentencing hearing, Olunloyo objected to the two-level enhancement for obstruction of justice and to the absence of a reduction for acceptance of responsibility. The District Court found no merit in these objections. As to the enhancement, the court noted that Olunloyo pleaded guilty to Count III of the indictment and found that this was an obstruction-of-justice count. The court then found that U.S.S.G. Sec. 3C1.1, comment. (n. 4), which is a non-exhaustive list of examples of conduct that does not warrant an enhancement for obstruction of justice, was inapplicable because in this case there was a separate count of conviction for the obstructive behavior. The District Court also concluded that there were no extraordinary circumstances that would make a reduction for acceptance of responsibility appropriate under U.S.S.G. Sec. 3E1.1. Thus, the District Court, consistent with the PSR, determined that Olunloyo's total offense level was 28, for which the sentencing range is 78 to 97 months. The court then imposed a sentence of 88 months for the drug convictions and a concurrent 36-month sentence, the statutory maximum, for the violation of 18 U.S.C. Sec. 111. Olunloyo appeals his sentence, essentially reasserting the arguments he made in the District Court.

II.

Olunloyo mounts several attacks on the two-level enhancement for obstruction of justice. He first argues that the District Court erred in concluding that his violation of 18 U.S.C. Sec. 111 is a separate count of conviction for obstructive conduct, and that, instead, it should be regarded as a separate count of conviction for assault on federal officers. He contends, therefore, that section 3C1.1 Application Note 4(d) exempts his conduct from enhancement for obstruction. The District Court's conclusion on this issue is one of law; therefore, our review is de novo. See United States v. Werlinger, 894 F.2d 1015, 1016 (8th Cir.1990).

Section 3C1.1 allows the sentencing court to assess a two-level adjustment to the base offense level where 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." U.S.S.G. Sec. 3C1.1. The Commentary to this section further elucidates the circumstances under which this enhancement should be levied. Application Note 3 is a non-exhaustive list of examples of conduct to which the enhancement should be applied. Application Note 3 provides nine specific examples of conduct and then states that the "adjustment also applies to any other obstructive conduct in respect to the official investigation, prosecution, or sentencing of the instant offense where there is a separate count of conviction for such conduct." U.S.S.G. Sec. 3C1.1, comment. (n. 3) (emphasis added). Application Note 4 provides "a non-exhaustive list of examples of types of conduct that, absent a separate count of conviction for such conduct, do not warrant application of this enhancement." U.S.S.G. Sec. 3C1.1, comment. (n. 4) (emphasis added). Among the conduct listed in Application Note 4 is "avoiding or fleeing from arrest." U.S.S.G. Sec. 3C1.1, comment. (n. 4(d)).

Section 111 applies to any person who "forcibly assaults, resists, opposes, impedes, intimidates, or interferes" with a federal officer. 18 U.S.C. Sec. 111(a). Thus, the language of the statute encompasses conduct that properly may be deemed obstructive. In addition, the conclusion that Olunloyo's 18 U.S.C. Sec. 111 conviction may be considered an obstruction-of-justice conviction for Guidelines purposes is buttressed by Congress' aim in enacting the statute. Congress did not intend 18 U.S.C. Sec. 111 to serve merely as a federal aggravated assault statute, United States v. Feola, 420 U.S. 671, 683, 95 S.Ct. 1255, 1263, 43 L.Ed.2d 541 (1975), rather, it intended to facilitate the twin purposes of protecting federal officers and preventing hindrances of federal functions. Id. at 679, 95 S.Ct. at 1261. See United States v. Beckner, 983 F.2d 1380, 1385 (6th Cir.1993) (18 U.S.C. Sec. 111 is "intended to protect federal officers from forcible resistance or interference with their official duties").

Furthermore, the indictment, to which Olunloyo entered an unconditional guilty plea, charged him not with assault but with "forcibly resist[ing], oppos[ing], imped[ing] or interfer[ing] with" two DEA agents. These are clearly obstructive acts, conviction of which constitutes a separate count of conviction for obstructive conduct. Thus, the language of the statute, the Supreme Court's finding in Feola concerning Congress' intent, and the offense as charged in the indictment all support the District Court's conclusion that Olunloyo's violation of 18 U.S.C. Sec. 111 was a separate count of conviction for obstructive conduct. Therefore, the conviction is within the description of U.S.S.G. Sec. 3C1.1 Application Note 3 and the obstruction-of-justice enhancement is appropriate.

Olunloyo next argues that his obstruction-of-justice enhancement cannot be predicated upon the 18 U.S.C. Sec. 111 conviction because U.S.S.G. Sec. 3C1.1 requires that the defendant acted willfully to obstruct justice whereas conviction under section 111 requires only a general intent to assault. He bases this argument on language from United States v. Feola. Olunloyo's argument is unconvincing for two reasons. First, this Circuit has held that willful intent is an element of 18 U.S.C. Sec. 111. Potter v. United States, 691 F.2d 1275, 1280 (8th Cir.1982). Second, Feola does not hold otherwise.

In Potter, this Court held that a violation of 18 U.S.C. Sec. 111 requires a finding of the following elements: (1) the defendant "forcibly resisted, opposed, impeded, intimidated and ⁴ interfered with a federal law enforcement officer;" (2) these acts occurred while the officer was engaged in official duties; and (3) the defendant did so willfully. Potter, 691 F.2d at 1280. The government has the burden of proving beyond a reasonable doubt each of these elements. Here Olunloyo pleaded guilty to the 18 U.S.C. Sec. 111 violation. During the hearing on Olunloyo's guilty plea, the District Court carefully questioned Olunloyo to be certain that he committed the acts charged, understood his rights, and fully comprehended the ramifications of his plea. Olunloyo's answers satisfied the court that Olunloyo's plea should be accepted. This plea necessarily included an admission as to each element of the section 111 offense including that he acted willfully.

Our holding in Potter that willful conduct is an element of the section 111 offense is not in conflict with the Supreme Court's decision in United States v. Feola. The issue in Feola was whether knowledge that the person assaulted is a federal officer is a requisite to...