                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                        No. 13-3825
                       ____________

             UNITED STATES OF AMERICA

                             v.

                 ROBERT WATERMAN,
                              Appellant
                    ____________

        On Appeal from United States District Court
               for the District of New Jersey
          (D.C. Criminal No. 1-12-cr-00487-001)
        District Judge: Honorable Robert B. Kugler
                       ____________

                  Argued on April 8, 2014

    Before: FISHER and SCIRICA, Circuit Judges, and
               MARIANI,* District Judge.



*
 The Honorable Robert D. Mariani, District Judge for the
United States District Court for the Middle District of
Pennsylvania, sitting by designation.
              (Opinion Filed: June 17, 2014)

Maggie F. Moy, Assistant Federal Public Defender
ARGUED
Julie A. McGrain, Esq.
Office of Federal Public Defender
800-840 Cooper Street
Suite 350
Camden, NJ 08102
       Counsel for Appellant



Paul J. Fishman, United States Attorney
Mark E. Coyne, Chief, Appeals Division
John F. Romano, Assistant United States Attorney
ARGUED
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
       Counsel for Appellee

                      ____________

               OPINION OF THE COURT
                    ____________




MARIANI, District Judge.




                             2
       Appellant Robert Waterman was sentenced to 15
months’ imprisonment after he pled guilty to the charge of
destruction of records in violation of 18 U.S.C. § 1519.
Waterman contends that the District Court erred in applying a
three-level    sentence     enhancement      under     U.S.S.G.
§ 2J1.2(b)(2) for substantial interference with the
administration of justice. We hold that the District Court’s
application of the enhancement was not clear error and,
accordingly, will affirm.
                                I.
       Waterman was a police officer with the Pennsville,
New Jersey Police Department from July 2006 until his
resignation in October 2011. In August 2008, Waterman
disclosed to a supervising officer that he had downloaded
approximately twenty videos containing child pornography to
his home computer. FBI agents were made aware of
Waterman’s 2008 admissions, opened an investigation, and
interviewed Waterman on March 4, 2010 at his residence.
Waterman told the FBI that the computer he used to view
child pornography crashed in 2008 and that he threw out the
“fried” hard drive in August 2008.
       On March 5, 2010, Waterman’s superior approached
him at police headquarters and asked him to remain in the
office to wait for the chief of police. Waterman did not
remain in his office, but instead went outside to his patrol car.
Waterman’s superior found him in his vehicle, breaking apart
what was determined to be a green printed circuit board.1

1
  “Hard drive” refers to the data platters contained within the
sealed hard drive housing, which is attached to the green
printed circuit board. Because a circuit board can be replaced
and damage to the circuit board does not destroy the data in
the hard drive, the Government conceded that the destruction




                               3
After searching the vehicle, officers recovered a pried-open
damaged hard drive on top of Waterman’s patrol bag and
found a small screwdriver and hammer in the side pocket.
When asked whether this hard drive contained child
pornography, Waterman responded that there was a 50/50
chance that it did because he had two hard drives, one that he
threw out and one that he kept. Later that day, FBI agents
again interviewed Waterman at his home, whereupon he
explained that he had found the hard drive in his garage after
his initial interview with the FBI. Two experts later examined
the hard drive in an effort to recover the data, but the damage
was beyond repair. The experts concluded that the hard drive
had been pried open and the hard drive platters had been
scratched. They concluded that the damage was consistent
with damage caused by a foreign instrument such as a
screwdriver.
        On January 8, 2013, Waterman pled guilty to a one-
count indictment charging him with destruction, alteration or
falsification of records in a federal investigation in violation
of 18 U.S.C. § 1519. At sentencing, the District Court found
that there was sufficient evidence that Waterman destroyed
the hard drive on March 5, 2010, after he learned of the FBI
investigation. The District Court concluded that destruction of
the hard drive resulted in the early termination of the FBI
investigation and the unnecessary expenditure of substantial
governmental resources. Accordingly, the District Court
adopted the Presentence Investigation Report and applied a
three-level enhancement under U.S.S.G. § 2J1.2(b)(2) for
substantial interference with the administration of justice. The

of the circuit board, while sufficient for a conviction under 18
U.S.C. § 1519, was insufficient for an enhancement under
§ 2J1.2(b)(2). App. 54.




                               4
enhancement resulted in an adjusted offense level of 16 and a
criminal history category of I, which corresponded to 21 to 27
months’      imprisonment.      Without    the    § 2J1.2(b)(2)
enhancement, Waterman’s adjusted offense level would have
been 13, with an advisory Guidelines range of 12 to 18
months’ imprisonment.
       At the sentencing hearing, the District Court conducted
a thorough examination of the 18 U.S.C. § 3553(a) factors. It
considered letters from Waterman’s friends, family and
coworkers attesting to his moral character. The District Court
noted Waterman’s exemplary military service, personal work
ethic, and dedication to his children. It also considered the
serious nature of the crime and the general need to deter
others from future similar conduct. After considering these
factors, the District Court found that a sentence within the
Guidelines range would not be appropriate given the
“extraordinary personal characteristics of this defendant.”
App. 100. Accordingly, the District Court granted a six-
month downward variance and sentenced Waterman to 15
months’ incarceration. Waterman timely appealed.2
                               II.
       Waterman contests the District Court’s application of
an enhancement for substantial interference, contending that
there was insufficient evidence for the District Court to find
that he destroyed the hard drive on March 5, 2010. Waterman
argues that the District Court clearly erred because the
Government failed to sufficiently prove the applicability of
the § 2J1.2(b)(2) enhancement. Because we hold that the

2
  The District Court had subject matter jurisdiction pursuant
to 18 U.S.C. § 3231. We have appellate jurisdiction pursuant
to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).




                              5
District Court’s factual findings were not clearly erroneous,
we will affirm.
        “We review the District Court’s factual findings
relevant to the Guidelines for clear error and exercise plenary
review over the District Court’s interpretation of the
Guidelines.” United States v. West, 643 F.3d 102, 105 (3d
Cir. 2011) (citations omitted). “A finding is clearly erroneous
when, although there is evidence to support it, the reviewing
body on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States
v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc) (internal
quotation marks and alterations omitted) (quoting Concrete
Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust
for S. Cal., 508 U.S. 602, 622 (1993)). “Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” Anderson v.
Bessemer City, 470 U.S. 564, 574 (1985).
        Under U.S.S.G. § 2J1.2(b)(2), “[i]f the offense resulted
in substantial interference with the administration of justice,
increase by 3 levels.” Application Note 1 of U.S.S.G. § 2J1.2
states that “‘[s]ubstantial 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.” A district court applies the
preponderance of the evidence standard in making factual
findings regarding disputed Guidelines points. Grier, 475
F.3d at 568.
        At the sentencing hearing, the District Court applied
the substantial interference enhancement and did not “have
any difficulty determining that Mr. Waterman destroyed the
platters” on March 5, 2010, after learning of the FBI




                               6
investigation. App. 76. The District Court noted that, in his
statement to the probation officer, Waterman said that he
brought the hard drive to work with the intention of giving it
to his supervisor. Though Waterman had occasion to turn in
the hard drive on March 5, he instead left the building and
was observed destroying the circuit board in his patrol car.
The District Court also noted that the circumstantial evidence
was strong because Waterman had the broken hard drive and
a screwdriver—a tool unnecessary for his job—in his patrol
bag, and the damage to the hard drive was consistent with
damage caused by a screwdriver. Based on this evidence, the
District Court concluded that there was a preponderance of
evidence that Waterman destroyed the hard drive on March 5,
2010, and, accordingly, overruled Waterman’s objection to
the enhancement.
       The District Court did not clearly err in finding that
Waterman destroyed the hard drive on March 5, 2010.
Though Waterman argues that no one witnessed him actually
destroying the hard drive in his squad car, such direct
evidence is unnecessary. The record shows that Waterman
was seen destroying the circuit board in his car on March 5,
2010; the officers found the damaged hard drive in
Waterman’s squad car along with a screwdriver and hammer;
the damage caused to the hard drive was consistent with
damage done with a screwdriver; and Waterman himself
stated that there was a 50/50 chance that the hard drive
contained child pornography. Based on the record before us,
we cannot say we are left with a “definite and firm conviction
that a mistake has been committed.” Grier, 475 F.3d at 570.
Accordingly, we hold that the District Court did not clearly
err.
       The Government also argues that, even if the District
Court clearly erred in its application of the enhancement, any




                              7
error was harmless. Waterman argues otherwise, contending
that the District Court did not explicitly state that the 15-
month sentence was the only appropriate sentence. Waterman
also contends that the erroneously calculated offense level
was a critical reference point for the District Court’s
downward variance. Our Court has previously noted that,
“where . . . the district court does not explicitly state that the
enhancement had no effect on the sentence imposed, it
usually will be difficult to ascertain that the error was
harmless.” United States v. Zabielski, 711 F.3d 381, 389 (3d
Cir. 2013). Because we believe the District Court did not
clearly err in finding that Waterman destroyed the hard drive
on March 5, 2010, we need not determine whether the alleged
error was harmless.
        Finally, in their briefs and at oral argument, Waterman
and the Government also addressed the issue of whether
timing is a relevant consideration for district courts applying
the § 2J1.2(b)(2) enhancement. The Government contends
that timing is irrelevant to the application of the enhancement,
noting that courts have applied the enhancement to
obstructive conduct that occurred well before the initiation of
a potential judicial proceeding or investigation. See United
States v. Amer, 110 F.3d 873, 885 (2d Cir. 1997) (holding
that the substantial interference enhancement properly applied
to a defendant convicted of abducting his children and
removing them from the United States, notwithstanding the
absence of an ongoing proceeding at the time of the
abduction). We are unconvinced by the Government’s
assertion. The language of the sentencing enhancement—
mandating that the “offense resulted in substantial
interference with the administration of justice,” U.S.S.G.
§ 2J1.2(b)(2) (emphasis added)—imposes a requirement of
causality. See Burrage v. United States, 134 S. Ct. 881, 887-




                                8
88 (2014) (“A thing ‘results’ when it ‘[a]rise[s] as an effect,
issue, or outcome from some action, process or design.’ 2 The
New Shorter Oxford English Dictionary 2570 (1993).
‘Results from’ imposes, in other words, a requirement of
actual causality.”). In determining whether the offense caused
substantial interference, the timing of the offense in relation
to the events which give rise to an assertion of substantial
interference3 is a relevant factor for district courts to consider
when applying the enhancement. Nonetheless, because our
holding does not rest on the issue of timing, we need not
make a determination as to its relevance in this case.
                               III.
        We conclude that the District Court did not clearly err
in applying the § 2J1.2(b)(2) enhancement for substantial
interference with the administration of justice based on its
determination that Waterman destroyed the hard drive on
March 5, 2010. Accordingly, we will affirm the judgment of
the District Court.




3
  U.S.S.G. § 2J1.2 app. n.1 (defining “substantial interference
with the administration of justice” as including “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”).




                                9
