United States v. Halliday

• Decision Date: 16 December 2011
• Docket Number: No. 10–4200.,10–4200.
• Citation: 665 F.3d 1219
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jordan HALLIDAY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

665 F.3d 1219

UNITED STATES of America, Plaintiff–Appellee,

v.Jordan HALLIDAY, Defendant–Appellant.

No. 10–4200.

United States Court of Appeals, Tenth Circuit.

Dec. 16, 2011.

Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack, Federal Public Defender, and Kent R. Hart, Assistant Federal Public Defender, on the brief), Salt Lake City, Utah, for Defendant–Appellant.

Diana Hagen, Assistant United States Attorney (Carlie Christensen, United States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff–Appellee.

Before KELLY, BALDOCK, and EBEL, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant challenges his sentence for criminal contempt for refusing to testify before a grand jury. The sentencing guideline provision for contempt requires the district court to “apply the most analogous offense guideline.” The district court in this case applied the guideline for obstruction of justice. Defendant argues the district court should have applied the provision for failure to appear as a material witness. He also challenges his sentence as substantively unreasonable. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I.

A grand jury in the District of Utah subpoenaed Defendant as part of an investigation into attacks on three mink farms. Defendant is the founder of the Animal Defense League of Salt Lake City. The Government believed Defendant had information relevant to the grand jury's investigation. Defendant, however, denies that he knew anything about the attacks. At his first appearance before the grand jury, Defendant refused to take the oath, and answered virtually every question with “no comment.” Six days later, Defendant sent a series of text messages to William Viehl, a target in the grand jury's investigation who was subsequently convicted in connection with two of the mink farm attacks. In the first message, Defendant told Viehl that “the 3 of us need to sit down and have a talk so we are all on the same page.” Viehl asked if Defendant had “been talked to again.” Defendant responded, “No, not yet! I've just been hearing some rumours and I want to make sure we are all on the same page.” He added that “it's involving the GJ.”

The grand jury again subpoenaed Defendant. At this second grand jury appearance Defendant took the affirmation, but again answered “no comment” to nearly every question. During a recess, the district court instructed Defendant that he must answer questions unless he had a legally recognizable privilege. When the grand jury reconvened, Defendant pleaded a Fifth Amendment privilege to every question, including questions such as where he lived or if he intended to answer any questions. Later that day, Defendant again texted Viehl. He said, “Got the court extended until the 13. We need time to file motions and such.” He also said that “grand juries are fucked and every activist I know ... would agree and would/have resisted grand juries as well.” Referencing the comedian Dave Chappelle, Defendant said,

Well, after my dave chapelle ... I plead the 5^th routine today. I was making some fo [sic] the gj laugh. I was sayin' like “1–2–3–4–5th!”. And they asked to see and they asked to see and they asked her to grant me more time as well, because they needed more time. The prosecutor was pissed as fuck.

At Defendant's civil contempt hearing, the Government granted Defendant immunity for his grand jury testimony. The court determined Defendant could not claim a Fifth Amendment privilege. After Defendant confirmed to the court that he still refused to answer grand jury questions, the court found Defendant in civil contempt and ordered him incarcerated. Defendant remained in custody for 108 days, until the grand jury's term expired.

Thereafter, another grand jury indicted Defendant for criminal contempt in violation of 18 U.S.C. § 401. He pleaded guilty to that offense. The sentencing guideline for contempt, U.S.S.G. § 2J1.1, incorporates U.S.S.G. § 2X5.1, which directs the court to “apply the most analogous offense guideline.” Defendant argued that the most analogous guideline was U.S.S.G. § 2J1.5, entitled “Failure to Appear by Material Witness.” The district court, however, applied the guideline provision recommended by the probation office, U.S.S.G. § 2J1.2, entitled “Obstruction of Justice.” The district court determined, based on its factual findings, that obstruction of justice was the most analogous offense. The court found:

Defendant's refusal to follow a lawful order to testify before the grand jury because it might lead to indictments is ... an effort to impede the grand jury because a witness's refusal to testify is motivated by a desire to impede prosecution.

The fact that two individuals were indicted by the grand jury does not negate Defendant's express intent to impede prosecution. Defendant's expressed intent not to assist the government's efforts to indict was not limited to those two particular individuals. Further there is at least one similar offense for which no one has yet been indicted.

Section 2J1.2 and Defendant's criminal history category yielded a guideline range of 10 to 16 months. The court sentenced Defendant to 10 months imprisonment, but granted his motion for supervised release pending this appeal. Defendant now appeals his sentence.

II.

We review the reasonableness of a sentence under the “familiar abuse-of-discretion standard of review.” Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “Reasonableness review has a procedural and substantive component.” United States v. Martinez, 610 F.3d 1216, 1223 (10th Cir.2010). Procedural reasonableness focuses on whether the district court erred in “calculating or explaining the sentence.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.2009). Substantive reasonableness focuses on whether the length of the sentence is reasonable in light of the factors contained in 18 U.S.C. § 3553(a). Id. Defendant challenges both the procedural and substantive reasonableness of his sentence.

A.

Defendant argues that the district court erred procedurally in applying the sentencing guideline for obstruction of justice. The parties dispute the standard of review. The Government, citing only cases from other circuits, argues that we should give due deference to the district court's selection of the most analogous guideline. Defendant, citing United States v. Munoz–Tello, 531 F.3d 1174, 1181 (10th Cir.2008), argues that we review the selection de novo. Unfortunately, the cases in our circuit are likely to perpetuate such confusion. When reviewing the district court's calculation of the 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. Mollner, 643 F.3d 713, 714 (10th Cir.2011) (quoting Munoz–Tello, 531 F.3d at 1181). Where a district court must select the most analogous guideline, we have stated the rule two ways. In United States v. Cherry, 572 F.3d 829, 831 (10th Cir.2009), we said we “review de novo whether the facts found by the court support the application of the guideline it selected.” (citing United States v. Fortier, 180 F.3d 1217, 1225 (10th Cir.1999)). Thus, under Cherry, once we have reviewed the district court's factual findings for clear error, we review its selection of the most analogous guideline de novo. Yet in United States v. Rakes, 510 F.3d 1280, 1287 (10th Cir.2007), we said we review the district court's determinations in selecting the most analogous guideline “de novo to the extent they rest on legal bases, and for clear error to the extent they rest on factual findings.” We went on to say in Rakes that a case involving “only an interpretation of the Guidelines” was subject to de novo review. Id. Rakes appears to conflict with Cherry to the extent it suggests that in some cases we might review the selection of the appropriate guideline (as opposed to the underlying facts) for clear error. We need not resolve this apparent discrepancy here, because we believe the district court selected the appropriate guideline under either standard of review.

Even if we review de novo whether the district court selected the most analogous guideline, we first must review the district court's underlying factual findings for clear error. Mollner, 643 F.3d at 714. Defendant argues that obstruction of justice is not the most analogous offense because he refused to testify “as a matter of conscience based on his personal beliefs,” rather than out of any intent to impede the grand jury. He argues that he knew nothing about the mink farm attacks, and that his refusal to testify therefore did not obstruct justice. The district court found, however, that Defendant was “motivated by a desire to impede prosecution.” The court noted that Defendant “admit[ted] his purpose was a refusal to assist the government in its efforts to indict others.” We review this factual finding for clear error. “To constitute clear error, we must be convinced that the sentencing court's finding is simply not plausible or permissible in light of the entire record on appeal, remembering that we are not free to substitute our judgment for that of the district judge.” United States v. McClatchey, 316 F.3d 1122, 1128 (10th Cir.2003) (quoting United States v. Torres, 53 F.3d 1129, 1144 (10th Cir.1995)).

We faced an almost identical case in United States v. Voss, 82 F.3d 1521 (10th Cir.1996). There, the district court sentenced the defendants for contempt using § 2J1.2. Id. at 1531. Like Defendant, the Voss defendants argued the “most analogous” guideline was actually U.S.S.G. § 2J1.5. Id. In Voss, we noted the First Circuit's holding in United States v. Underwood, 880 F.2d 612, 620 (1st Cir.1989), that § 2J1.5 was most analogous where the district court had found the defendant acted in good faith and did not intend to obstruct...