USA v. Newman

• Citation: 614 F.3d 1232
• Decision Date: 17 August 2010
• Docket Number: No. 09-14557.,09-14557.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifford Allen NEWMAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

614 F.3d 1232

UNITED STATES of America, Plaintiff-Appellee,

v.Clifford Allen NEWMAN, Defendant-Appellant.

No. 09-14557.

United States Court of Appeals,Eleventh Circuit.

Aug. 17, 2010.

COPYRIGHT MATERIAL OMITTED.

James H. Burke, Jr. and Donna Lee Elm, Fed. Pub. Defenders, Jacksonville, FL, for Newman.

Roberta Josephina Bodnar, Peggy Morris Ronca, Asst. U.S. Atty., Orlando, FL, Arnold B. Corsmeier, Jacksonville, FL, for U.S.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA, Chief Judge, and PRYOR and MARTIN, Circuit Judges.

MARTIN, Circuit Judge:

Clifford Allen Newman appeals his 33-month sentence imposed after pleading guilty to one count of violating the International Parental Kidnapping Crime Act (“IPKCA”), 18 U.S.C. § 1204. Mr. Newman argues that the district court erroneously enhanced his sentence under United States Sentencing Guidelines § 2J1.2(b)(2) and § 2J1.2(b)(3)(C). After review and oral argument, we affirm the district court's three-level enhancement under § 2J1.2(b)(2) because the offense resulted in “substantial interference with the administration of justice,” but we conclude the district court clearly erred in finding that the offense was “otherwise extensive in scope, planning, or preparation.” We therefore reverse and remand for resentencing consistent with this opinion.

I.

Clifford and Monica Newman were married in 1992 and she later gave birth to a son. They divorced in 1996, and a Florida state court entered a decree awarding primary residential custody of their son, then three years old, to Mrs. Newman. Under the terms of the custody order, neither parent was permitted to remove the child from Florida without written, notarized consent of the other parent.

Shortly after the divorce decree was entered, Mr. Newman picked up his son for a scheduled visitation but never returned the child to his mother. Instead, he took the child to Yemen in violation of the state court's decree in an effort to avoid the court's custody determination. Mr. Newman abducted his son because, in his words, he “could not just sit back and let [his] son be taken away,” he “wanted to be his [son's] father and [he] wanted to raise him, and they wouldn't allow [him] to do that here,” and contrary to the state court's decision, he “knew what was best for [his son].”

As a result of his actions, the Florida State Attorney's Office charged Mr. Newman with interference with custody in violation of Florida law and issued a state arrest warrant. The whereabouts of the father and child remained unknown, however, and he was never arrested or prosecuted on the state charges. Nearly eight years would pass before Mr. Newman and the boy were located. During this time, Mrs. Newman had no contact with her son.

In 2004, however, investigators got two breaks. First, authorities notified the U.S. State Department that Mr. Newman crossed an international border traveling on his United States passport. Second, Mr. Newman was arrested in Dubai in the United Arab Emirates for auto theft and attempted robbery. Through their investigation, federal law enforcement officers then learned that the child was living with Mr. Newman's second wife in Yemen. Shortly thereafter, Yemeni law enforcement officers working in concert with federal agents took custody of the child and a Yemeni court granted legal guardianship to the child's maternal grandmother. The grandmother then traveled with the child from Yemen to the United States, where he was reunited with his mother at the age of eleven.

Following his arrest in Dubai, Mr. Newman was indicted in the Middle District of Florida and charged with one count of removing his child from, and retaining his child outside of, the United States in violation of the IPKCA. Upon his release from prison in Dubai five years later, Mr. Newman was returned to the United States and immediately arrested. He pleaded guilty to the indictment without a plea agreement.

The presentence report (“PSR”) prepared by the United States Probation Office recommended that Mr. Newman's sentence be enhanced under two guidelines provisions. First, the PSR recommended a three-level increase under U.S.S.G. § 2J1.2(b)(2) because the offense resulted in “substantial interference with the administration of justice.” Second, the PSR recommended a two-level enhancement under § 2J1.2(b)(3)(C) based on the probation officer's finding that the offense was “extensive in scope, planning, or preparation.” With a criminal history category of III and a three-level decrease for acceptance of responsibility, Mr. Newman's guidelines range was 27 to 33 months.

Mr. Newman objected to both enhancements, but the district court overruled his objections. Specifically, the district court found the enhancement for substantial interference with the administration of justice applied based on Mr. Newman's violation of the state court custody order. The district court also found that Mr. Newman's offense warranted an enhancement because it was extensive in scope, planning, or preparation, based on the eight-year duration of the offense and his flight to a country in the Middle East where it would be “extraordinarily difficult” to locate and return the child. After hearing from Mrs. Newman, argument from the parties, and Mr. Newman's allocution, the district court sentenced him to 33 months in prison. He now appeals.

II.

“We review the district court's findings of fact for clear error and its application of the Sentencing Guidelines de novo.” United States v. Lopez-Garcia, 565 F.3d 1306, 1323 (11th Cir.2009). “For a factual finding to be clearly erroneous, this court, after reviewing all of the evidence, must be left with a definite and firm conviction that a mistake has been committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir.2004) (internal quotation marks omitted).

III.

Congress enacted the International Parental Kidnapping Crime Act in 1993 to “deter the removal of children from the United States to foreign countries in order to obstruct parental rights.” See H.R.Rep. No. 103-390, at 1 (1993), reprinted in 1993 U.S.C.C.A.N. 2419, 2419. The legislative history of the IPKCA explains that the Act was intended as a response to issues left unaddressed by international law: ¹ There is an international civil mechanism relating to [cases of international parental kidnapping], the Hague Convention on International Parental Child Abduction, for which Congress passed implementing legislation in 1988. As a result of this convention, the signatories will recognize the custody decrees of other signatories, thereby facilitating the return of abducted children. However, most countries are not signatories to the Convention, thus leaving individual countries to take whatever legal unilateral action they can to obtain the return of abducted children.

Id. at 3, 1993 U.S.C.A.A.N. at 2421; see also United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 44 (1st Cir.2004); United States v. Amer, 110 F.3d 873, 881-82 (2d Cir.1997) (explaining that the IPKCA was passed to “close the gap” left by the many countries that are not signatories to the Hague Convention and to deter abductions to “safe haven” countries). In furtherance of that objective, the IPKCA makes it a federal felony for a parent to remove a child from the United States, or to retain outside the United States a child who has been in the United States, with the intent to obstruct the other parent's lawful exercise of his or her parental rights. 18 U.S.C. § 1204(a).

Under the sentencing guidelines, violations of the IPKCA are assessed under U.S.S.G. § 2J1.2, which applies to obstruction of justice offenses. See U.S.S.G. app. A (statutory index). As explained above, the district court enhanced Mr. Newman's sentence by a total of five levels under § 2J1.2(b)(2) and § 2J1.2(b)(3)(C). Mr. Newman argues that application of both of these enhancements was error. Each is addressed in turn.

A.

Section 2J1.2(b)(2) provides for a three-level increase if “the offense resulted in substantial interference with the administration of justice.” U.S.S.G. § 2J1.2(b)(2). The phrase “substantial interference with the administration of justice” “includes a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.” Id. § 2J1.2 cmt. n.1. Because the term “ ‘includes' is not exhaustive,” id. § 1B1.1 cmt. n.2, the definition of “substantial interference with the administration of justice” in § 2J1.2 is not limited to the examples set out in the guidelines. See United States v. Probel, 214 F.3d 1285, 1288 (11th Cir.2000) (describing the nonexhaustive nature of the term “includes” in the context of U.S.S.G. § 2G2.2); Amer, 110 F.3d at 885 (“The term ‘includes' clearly indicates that the subsequent listing of acts warranting this enhancement is not exclusive, and that other acts-if similarly or even more disruptive of the administration of justice- could serve as bases for the section 2J1.2(b)(2) enhancement.”).

The district court found that Mr. Newman's violation of the state court custody decree substantially interfered with the administration of justice, justifying the three-level enhancement. The district court believed that Mr. Newman's decision to abduct his child and secret him in the Middle East was motivated by his dissatisfaction with the state court's custody decision:

Here, the defendant had the opportunity to participate in proper legal proceedings, to be heard, and to make his case. And then, dissatisfied with the outcome, rather than perhaps appeal it or otherwise contest it within the proper legal process, he chose to take the matter completely outside the proper administration of justice. And the Court is of the view that having done so, he did

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