U.S. v. Stroud

• Decision Date: 08 January 1990
• Docket Number: No. 376,D,376
• Citation: 893 F.2d 504
• Parties: UNITED STATES of America, Appellee, v. Andrew STROUD, Defendant-Appellant. ocket 89-1258.
• Court: U.S. Court of Appeals — Second Circuit

Page 504

893 F.2d 504

UNITED STATES of America, Appellee, v. Andrew STROUD, Defendant-Appellant.

No. 376, Docket 89-1258.

United States Court of Appeals, Second Circuit.

Argued Nov. 15, 1989.

Decided Jan. 8, 1990.

Robert E. Precht, The Legal Aid Soc., Federal Defender Services Unit, New York City, for defendant-appellant.

Michael G. Considine, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., David C. James, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.

Before FEINBERG and MESKILL, Circuit Judges, and COFFRIN, ^* District Judge.

MESKILL, Circuit Judge:

The sole issue raised by this appeal, and one that has not previously been decided in this Circuit, is whether flight from an arresting officer constitutes "obstruction of justice" within the meaning of section 3C1.1 of the Federal Sentencing Guidelines, 18 U.S.C.A. App. (West Supp.1989) ("Sentencing Guidelines" or "Guidelines"). Defendant-appellant Stroud appeals the sentence imposed by the United States District Court for the Eastern District of New York, Raggi, J., pursuant to the Sentencing Reform Act of 1984 (as amended), 18 U.S.C. Sec. 3551 et seq. and 28 U.S.C. Sec. 991 et seq., following his plea of guilty to three counts of bank burglary in violation of 18 U.S.C. Sec. 2113(a). The district court sentenced Stroud to twenty-four months imprisonment followed by twenty-four months of supervised release. On appeal, Stroud does not contest the underlying conviction, but claims that the district court erred by adjusting upward his offense level by two levels for obstructing justice. Specifically, Stroud contends, and we agree, that flight from arrest, in itself, does not constitute obstruction of justice under Sentencing Guidelines Sec. 3C1.1.

We vacate the sentence of the district court and remand for resentencing.

BACKGROUND

Pursuant to a plea agreement with the government, appellant Stroud, on February 3, 1989, pleaded guilty to three counts of bank burglary in violation of 18 U.S.C. Sec. 2113(a). Following a presentence investigation, the Probation Department prepared a presentence report pursuant to Guidelines Sec. 6A1.1.

In calculating Stroud's sentence under the Guidelines, the Probation Department first determined that a base offense level of twelve for each offense was appropriate. See Guidelines Sec. 2B2.2 ("Burglary of Other Structures"). With respect to Count One, the base level was increased by one level to reflect a loss to the bank of between $2,501 and $10,000, id. Secs. 2B2.2(b)(2), 2B2.1(b)(2), yielding an adjusted offense level of thirteen. With respect to Count Two, the base level was increased by two levels to reflect a loss of between $10,001 and $50,000, id. Secs. 2B2.2(b)(2), 2B2.1(b)(2), and by an additional two levels for "obstruction of justice," id. Sec. 3C1.1, yielding an adjusted offense level of sixteen. The upward adjustment for obstruction was based solely on Stroud's vigorous efforts to avoid capture. Appellant's post-detection activities, as recounted in the presentence report, are as follows:

[Stroud] made extraordinary efforts to flee after he realized that he was detected by the police. The defendant fled the bank, ran across rooftops, removed his jacket and hid under a boat. When apprehended by an officer, he pulled loose twice, jumped a fence and was arrested only after he ran into traffic, blocks away, and was surrounded by police. During the flight, the defendant was pursued by numerous officers and a police dog.

With respect to Count Three, the base level was increased by one level to reflect the loss, id. Secs. 2B2.2(b)(2), 2B2.1(b)(2), and also by two levels because a vehicle was stolen in preparation for the bank burglaries, id. Sec. 2B2.2(b)(1), yielding an adjusted offense level of fifteen. As the three counts were not grouped together as "closely-related," see id. Sec. 3D1.2, a "combined offense level" of nineteen was then calculated by increasing the highest offense level of sixteen (Count Two) by three additional levels, see id. Sec. 3D1.4. Finally In both a letter dated April 20, 1989 and again at sentencing, Stroud objected to the two-level enhancement for obstruction of justice, arguing that Guidelines Sec. 3C1.1 was applicable only to the willful removal or falsification of evidence, rather than an attempt to avoid apprehension. Appellant suggested, inter alia, that if the section 3C1.1 enhancement for obstruction of justice had not been made, his net adjusted offense level would have been sixteen, thus yielding a sentencing range of twenty-one to twenty-seven months and potentially reducing his term of imprisonment by three months.

                the combined offense level of nineteen was decreased by two levels for appellant's "acceptance of responsibility."    Id.  Sec. 3E1.1.  Thus, combining Stroud's adjusted offense level of seventeen with his Category I criminal history resulted in a guideline-specified sentencing range of twenty-four to thirty months imprisonment
                

In response to this argument, Judge Raggi stated at the sentencing hearing that "I understand obstruct to really relate to anything that can make it more difficult to carry out a just result in a criminal case, whether this means that one puts documents in a shredder or whether it means that a defendant himself attempts to flee to prevent his arrest." Consequently, the district court accepted the Probation Department's recommendation that Stroud's offense level be upwardly adjusted by two levels for obstruction of justice and, on May 18, 1989, sentenced Stroud to the "minimal period within the [G]uidelines," i.e., three concurrent terms of twenty-four months imprisonment. ¹ This appeal followed.

DISCUSSION

Guidelines Sec. 3C1.1, entitled "Willfully Obstructing or Impeding Proceedings," provides that: "If the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the offense level ... by 2 levels." (emphasis added). Judge Raggi, equating Stroud's flight to avoid apprehension with willful obstruction, adopted the presentence recommendation and increased appellant's base offense level with respect to Count Two by two levels. Stroud, however, argues that a section 3C1.1 adjustment for obstruction is "not intended to apply to flight because the desire not to be caught is basic to almost all criminal behavior." Specifically, appellant contends both that "[t]he obstruction adjustment was intended to apply only to acts aimed at undermining the accuracy of the fact-finding process," and that "[a] defendant must have more than the general intent not to be caught; he must have the specific intent to corrupt the truth-finding process." Although we decline the invitation to adopt appellant's narrow interpretation of section 3C1.1, we do agree that mere flight from arrest, by itself, does not constitute obstruction within the ambit of Guidelines Sec. 3C1.1.

A. Standard of Review

Under the Sentencing Reform Act of 1984 (as amended), 18 U.S.C. Sec. 3551 et seq. and 28 U.S.C. Sec. 991 et seq., appellate review of a sentence is governed by section 3742(e), which provides, in pertinent part:

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.

18 U.S.C. Sec. 3742(e) (emphasis added). While the adoption of the "due deference" standard of review was "intended to give the court of appeals flexibility in reviewing an application of a guideline standard that involves some subjectivity," the legislative history makes clear that

[t]he deference due a district court's determination will depend upon the relationship of the facts to the guidelines standard being applied. If the particular determination involved closely resembles a finding of fact, the court of appeals would apply the clearly erroneous test. As the determination approaches a purely legal determination, however, the court of appeals would review the determination more closely.

134 Cong.Rec. H11257 (daily ed. Oct. 21, 1988) (analysis of Minor and Technical Criminal Law Amendments to Title VII, Subtitles B & C, Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, 102 Stat. 4181, 4416-18 (1988)).

Thus, while a district court's determination of whether a defendant obstructed justice is typically reviewed as a factual finding under the clearly erroneous standard, see United States v. McDowell, 888 F.2d 285, 292 (3d Cir.1989); United States v. Cain, 881 F.2d 980, 982 (11th Cir.1989); United States v. Rivera, 879 F.2d 1247, 1254 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 554, 107 L.Ed.2d 550 (1989), the issue here--does mere flight from a crime scene constitute willful obstruction--turns primarily on the legal interpretation of a guideline term. Consequently, our review is de novo. See, e.g., United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir.1989) ("[s]ections 3742(e)(1) and (e)(2) clearly call for a de novo review when the appellate court is addressing purely legal issues").

B. Analysis

As written, Guidelines Sec. 3C1.1 contains a clear mens rea requirement that limits its scope to those who "willfully" obstruct or attempt to obstruct the administration of justice. Although " 'willful' is a word 'of many meanings, [with] its construction often ... influenced by its context,' " Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945) (plurality opinion) (quoting Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418 (1943)), we are convinced that the word "willfully," as used in section 3C1.1, requires that the defendant consciously act with the purpose of obstructing justice. We therefore hold that...