U.S. v. Peters, 04-2081.

• Decision Date: 24 January 2005
• Docket Number: No. 04-2081.,04-2081.
• Citation: 394 F.3d 1103
• Parties: UNITED STATES of America, Appellee, v. Tammy J. PETERS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

394 F.3d 1103

UNITED STATES of America, Appellee, v. Tammy J. PETERS, Appellant.

No. 04-2081.

United States Court of Appeals, Eighth Circuit.

Submitted: November 18, 2004.

Filed: January 24, 2005.

David E. Mullin, argued, Cedar Rapids, IA, for appellant.

Assistant U.S. Atty., Charles J. Williams, argued, Cedar Rapids, IA, for appellee.

Before WOLLMAN and HEANEY, Circuit Judges, and HOLMES,¹ District Judge.

HOLMES, District Judge.

We are called upon in this appeal to interpret U.S.S.G. § 3C1.1, which provides for enhanced punishment if a 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 of conviction.

Tammy Peters was indicted, along with three co-defendants, for distributing methamphetamine. The grand jury returned the indictment on June 6, 2003. On June 17, 2003, Peters self-surrendered to the U.S. Marshals Service. On that same day, she was released on her own recognizance under pretrial supervision of the U.S. Probation Office, with the condition that she refrain from the use of alcohol and drugs, and that she participate in substance abuse testing and treatment as deemed appropriate. On June 26, 2003, Peters tested positive for methamphetamine. She admitted to the pretrial services officer on July 7, 2003, that she had used methamphetamine. Three days later, she tested positive for methamphetamine and for amphetamine. She tested positive again on July 23. Peters admitted to her pretrial services officer on July 25 that she had used methamphetamine on July 10 and July 23. On August 7, the United States filed a motion to revoke her pretrial release. On September 3, the court denied the government's motion because Peters had entered inpatient drug treatment.

On September 17, after Peters had tested positive three times while on supervised release, Peters and the government entered into a plea agreement as a part of which the government stipulated that she had accepted responsibility and should be given credit under the sentencing guidelines for having done so. On September 29, 2003, Peters entered a plea of guilty to one count of distribution of methamphetamine. Later the same day, she was arrested for driving while barred, and she reported the arrest to her probation officer. She failed to provide urine specimens on October 2 and October 7, and she failed to report for her presentence interview on October 8.

On Friday, October 10, the pretrial services officer submitted a Non-Compliance Memorandum. The following Monday, October 13, was Columbus Day. The magistrate judge scheduled the revocation hearing for 3:30 p.m. for Tuesday, October 14.

When Peters's lawyer received notice of the hearing by e-mail, he sent the notice to Peters by U.S. mail, and he attempted to call her by telephone. He forgot that the following Monday was Columbus Day. Peters resided in Mason City, which is approximately 136 miles from Cedar Rapids. On Tuesday, October 14, Peters caught a ride to Cedar Rapids with a friend and went to see her pretrial services officer. The visit was unscheduled, and Peters arrived unannounced. The mail had not arrived at the time she left Mason City, so she was unaware that the revocation hearing had been scheduled. The pretrial services officer told her about the revocation hearing. Peters told the pretrial services officer that the person with whom she was riding had to be back in Mason City by mid-afternoon to pick up her children from school. The pretrial services officer told Peters that she needed to talk to her attorney. Peters called her attorney, told him that she had not been informed of the revocation hearing, and explained that she was in Cedar Rapids with a person who had to return to Mason City to pick up her children from school. She also told him that she would be available any subsequent day that week. Peters's lawyer told her that he would file a motion to continue the hearing, which he did. Peters returned to Mason City with her ride. At 3:30 p.m., Peters's attorney and the Assistant United States Attorney appeared before the magistrate judge. The magistrate judge announced that he had received the motion for continuance earlier in the day. Peters's lawyer stated: "I spoke with Ms. Peters and confirmed her availability tomorrow, for Thursday—Thursday or Friday, tomorrow or the day after tomorrow. And she is—in fact, is to call me this afternoon rather than my trying to leave a message for her, to make sure that she gets the message about any rescheduled time." The magistrate judge continued the revocation hearing until October 16 at 9:00 a.m. Peters appeared as scheduled on October 16, and the magistrate judge revoked her presentence release.

The presentence investigation report recommended that Peters be given a two-level increase in her offense level pursuant to U.S.S.G. § 3C1.1 because she failed to appear for the October 14, 2003, revocation hearing. The presentence investigation report also recommended that Peters not be given a reduction in her offense level for acceptance of responsibility. The presentence investigation report cited Peters's positive drug test, her two failures to provide urine specimens, her failure to attend her presentence interview, and her driving while barred as reasons for denying the downward adjustment for acceptance of responsibility. The presentence investigation report cited none of that conduct as a basis for the recommended enhancement for obstruction of justice. The district court found that Peters had willfully failed to appear for a court hearing set by the magistrate on October 14, that her probation officer had advised her of the court order, and, instead of obeying, she had returned to Mason City in willful deviance of that order. The court stated, "Certainly I understand that there may have been short notice for the hearing and perhaps the hearing would not have gone forward because counsel would have asked for a continuance in order to prepare, but that does not excuse her from disobeying a court order that she was well aware of." The district court also found that Peters had willfully failed to appear for her presentence investigation interview on October 8, and that she had willfully failed to appear for urinalysis testing. The district court found that each of the three failures constituted obstructive conduct.

As a result of the two-level increase in offense level based on the finding that she had obstructed justice, coupled with the denial of her three-level decrease in offense level for acceptance of responsibility, Peters's sentencing range increased from a range of 70 to 87 months to a range of 110 to 137 months. The district court imposed a sentence of 110 months imprisonment.

We review a district court's factual findings underlying an obstruction of justice enhancement for clear error and its construction and application of the guidelines de novo. United States v. Mendoza-Gonzalez, 363 F.3d 788, 796 (8th Cir.2004). U.S.S.G. § 3C1.1 provides:

Obstructing or Impeding the Administration of Justice

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 2 levels.

The district court primarily based the obstruction of justice enhancement on its finding that Peters had willfully failed to appear at the revocation hearing initially scheduled for October 14. In Application Note 4 to U.S.S.G. § 3C1.1, the United States Sentencing Commission provides a non-exhaustive list of examples of obstructive conduct. Included as an example of such conduct is "(e) willfully failing to appear, as ordered, for a judicial proceeding." U.S. SENTENCING GUIDELINES MANUAL § 3C1.1, cmt. n. 1 (2003).

We have previously considered obstruction of justice enhancements based on willful failure to appear for a judicial proceeding, most often in cases in which the defendant fled but was later apprehended. See United States v. Muro, 357 F.3d 743, 744 (8th Cir.2004); United States v. Young, 315 F.3d 911, 913 (8th Cir.2003); United States v. Martinez, 234 F.3d 1047, 1048 (8th Cir.2000); United States v. Bell, 183 F.3d 746, 748 (8th Cir.1999); United States v. Eagle, 133 F.3d 608 (8th Cir.1998); United States v. Crow Dog, 149 F.3d 847, 848 (8th Cir.1998); United States v. Rodgers, 122 F.3d 1129, 1131-32 (8th Cir.1997); United States v. Hare, 49 F.3d 447, 453 (8th Cir.1995); United States v. Thomas, 72 F.3d 92, 93 (8th Cir.1995); United States v. Adediran, 26 F.3d 61, 64-65 (8th Cir.1994); United States v. Shinder, 8 F.3d 633, 635 (8th Cir.1993). This case is distinct from past cases in two material ways. First, the magistrate judge continued the revocation hearing that Peters failed to attend. The hearing initially scheduled for 3:30 p.m. on October 14 was...