                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 08-1757
                                     ____________

                             UNITED STATES OF AMERICA

                                            v.

                                     LEON HENRY,

                                                   Appellant
                                     ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               (D.C. No. 06-cr-00033-02)
                        District Judge: Honorable Jan E. Dubois
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 26, 2011

            Before: BARRY, HARDIMAN and NYGAARD, Circuit Judges.

                                 (Filed: April 26, 2011)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

HARDIMAN, Circuit Judge.

       Leon Henry (Leon or Henry) appeals his judgment of sentence following a jury

trial. Because the District Court committed no error, we will affirm.
                                              I

       Because we write for the parties, who are well acquainted with the case, we review

only briefly the essential facts and procedural history.

       In 2003, Leon and his brother Andre Henry (Andre) wanted to purchase firearms,

but could not do so directly because they were convicted felons. Accordingly, they

recruited two women, Tameka Niblack and Starlene Herbert, to act as “straw” purchasers.

In their first attempt to purchase an assault rifle for the Henrys, the women were rebuffed

by a gun store clerk because they did not know how to operate the weapon. Undaunted

by this rejection, the Henrys drove Niblack the next day to a different gun store, where

she successfully purchased a Bushmaster AR-15 rifle, ammunition, and a gun cleaning

kit. During the following week, in two separate transactions, Niblack purchased two

Glock 9mm handguns. Niblack gave all three weapons and accessories to the Henrys.

       At trial and during sentencing, the Government introduced evidence that prior to

Niblack‟s purchases, Leon had helped Andre conceal evidence and launder money from

Andre‟s earlier crimes, which included eight robberies of fast food restaurants with a fake

firearm, two robberies of the Pulaski Savings Bank with an AK-47 rifle, and two

attempted carjackings, during one of which Andre shot at a police officer. The

Government also introduced evidence that the Henrys and two conspirators were planning

a third bank robbery at which Leon was to stay outside the bank and act as a sniper if

police arrived, although Leon was eventually acquitted of this conspiracy. Fortunately,

Andre was arrested for violating his parole before a third bank robbery could occur.
                                              2
       Leon was arrested after Andre and was charged with one count of conspiracy to

make false statements to a federal firearm licensee, and two counts of making such

statements. Andre and five other conspirators were also charged in the indictment, but

those charges are not germane to this appeal. A superseding indictment was filed,

followed by a second superseding indictment charging twenty-eight counts against the

seven defendants. Leon was charged with: (1) being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1); (2) conspiring to make false statements to a federal

firearm licensee in violation of 18 U.S.C. § 371; (3) making false statements to a federal

firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A); and (4) conspiracy to commit

armed bank robbery, in violation of 18 U.S.C. § 371. Following a successful motion to

sever, Leon was tried alone, and the jury found him guilty of the firearms offenses but

acquitted him of conspiracy to commit bank robbery. After a four day sentencing

hearing, the District Court sentenced Leon to 106 months imprisonment.

       At sentencing, the Government sought sentencing enhancements under the United

States Sentencing Guidelines (USSG) for, inter alia, obstruction of justice (USSG §

3C1.1) and possessing or transferring a gun with knowledge, intent or reason to believe it

would be used in a felony offense (USSG § 2K2.1(b)(5)). The Government also moved

for upward departures because Henry engaged in multiple acts of obstruction of justice

and because he threatened a prosecutor. The Government proffered multiple witnesses to

testify in support of these enhancements. The District Court did an admirable job

weighing the voluminous evidence and determining whether each alleged act supported
                                             3
an enhancement, departure, or variance.

       First, the District Court found that Henry attempted to convince Niblack to stage a

break-in and file a false police report that the guns had been stolen. Supp. App. 321, 334.

The District Court reasonably found that this “was an unlawful attempt to influence a

witness to lie to the police,” which amounted to obstruction of justice pursuant to

application note 4(a) to USSG § 3C1.1. Id. at 334.

       Second, the Government presented somewhat equivocal evidence to show that

Leon had, pursuant to an earlier agreement with Andre, gone to the apartment of one of

the straw purchasers to prevent her from testifying by killing her, but that he had

abandoned the plan. The District Court found that this did not amount to an attempt to

obstruct justice and declined to enhance based on the evidence. Id. at 323.

       Third, the Government proffered evidence that Leon, at Andre‟s behest,

approached two potential witnesses outside the grand jury room. The Government argued

that this amounted to an attempt to interfere with the grand jury, but the District Court

found that speaking to the witnesses, without any evidence of threats or intimidation,

could not support an enhancement for obstruction of justice. Id. at 325.

       Fourth, the Government proffered evidence that Henry had first deliberately

hidden the guns, then, after the police failed to find them, had hidden them again

elsewhere, and finally, once he was in custody, had telephoned a compatriot and

instructed him to hide them in yet a third location. The District Court rejected the

defense‟s argument that simply concealing evidence could not amount to obstruction of
                                              4
justice and found that because Henry “took deliberate steps, with knowledge of an

investigation, to conceal the weapons [it] amount[ed] to obstruction of justice.” Id. at

332; see USSG § 3C1.1 cmt. n. 4(d) (2002).

       Fifth, the Government presented evidence that, once he was incarcerated, Henry

spoke to co-defendant and potential witness Herbert through the prison‟s plumbing

system. When Herbert declined to speak with Henry, he told her not to testify and

threatened to poison everyone on her floor in the prison. The District Court found that

this threat constituted obstruction of justice. Supp. App. 336; USSG § 3C1.1 cmt. n. 4(a)

(2002).

       Finally, the Government presented evidence that Henry told another prisoner that

he was planning to kill the Assistant United States Attorney prosecuting his case.

Specifically, Henry told the prisoner (1) that he had read a transcript of his trial during

which, at sidebar, the prosecutor had requested time to take her daughter to the hospital,

and (2) that he intended to use the Bushmaster AR-15 rifle, which the Government had

never found, to kill the prosecutor and her family. Henry‟s prison confidante informed

the prosecutor and testified against Henry at sentencing, and this testimony was

corroborated by another prisoner. Defense counsel argued that because the threat had not

been communicated by Henry to the prosecutor it could not constitute a real threat or an

attempted obstruction of justice. The District Court disagreed. Supp. App. 339.

       In sum, the District Court found four acts that could constitute obstruction of

justice—urging Niblack to file a false police report, concealing and re-concealing the
                                              5
weapons to hinder the investigation, threatening to poison Herbert‟s prison floor to

prevent her from testifying, and threatening to kill the prosecutor and her family—and

rejected two others—the alleged aborted attempt to kill a witness, and speaking to

potential grand jury witnesses.

        After making these findings, the District Court ruled on the applicability of the

various guidelines and enhancements. First, it found that the four-level enhancement

under USSG § 2K2.1(b)(5) was applicable, for two independent reasons, namely because

Henry

        had reason to believe that the weapons for which he is criminally
        responsible, the Bushmaster AR-15 and the two Glocks, would be used or
        possessed in connection with another felony offense [and also because,]
        with respect to the threat on [the prosecutor,] the defendant possessed that
        Bushmaster, although it was possessed at the time of the statement
        constructively only, he knew where it was . . . the Government didn‟t know
        where it was, he possessed that weapon constructively with the intent to
        commit another felony offense, that is the murder of [the prosecutor].

Id. at 315.

        The District Court also granted a two-level enhancement for obstruction of justice

under USSG § 3C1.1 “because of the attempt of the defendant to have a witness make a

false police report.” Id. at 343. It then found that “the separate acts of obstruction, the

concealment of evidence and the threats to co-defendant, warrant[ed] a two-level increase

in offense level, and . . . depart[ed] upward by two levels” for those acts. Id. at 345.

        Finally, the District Court addressed the Government‟s motion for an upward

departure for the threats against the prosecutor. The Government argued that this

                                              6
warranted a three level upward departure by analogy to USSG § 3A1.2—an enhancement

for an official victim—but the District Court rejected this argument because the

prosecutor was not a victim of Henry‟s offenses of conviction. Nonetheless, the District

Court departed upward an additional two levels based on the threat to the prosecutor. Id.

at 346. At the conclusion of sentencing, the District Court clarified that both upward

departures—for the threat against the prosecutor and the multiple acts of obstruction of

justice—were pursuant to USSG § 5K2.0 which “provides for a departure, „if the Court

finds that there exists an aggravating or mitigating circumstance of a kind or to a degree

not adequately taken into consideration by the sentencing commission in formulating the

guidelines that should result in a sentence different from that described.‟” Id. at 366

(quoting USSG § 5K2.0 (2002)).

                                             II

       On appeal, Henry challenges the District Court‟s application of the two-level

enhancement for obstruction of justice under USSG § 3C1.1 and the two additional two-

level upward departures under USSG § 5K2.0.

       We review district court sentencing decisions for abuse of discretion, looking first

for procedural error and then examining the sentence for substantive reasonableness.

United States v. Wise, 515 F.3d 207, 217-18 (3d Cir. 2008). We review a district court‟s

legal interpretation of the Guidelines de novo. United States v. Grier, 475 F.3d 556, 561-

68 (3d Cir. 2007) (en banc). District courts make sentencing-related factual findings by a

preponderance of the evidence standard. United States v. Fisher, 502 F.3d 293, 307 (3d
                                             7
Cir. 2007). Accordingly, “if the asserted procedural error is purely factual, our review is

highly deferential and we will conclude there has been an abuse of discretion only if the

district court‟s findings are clearly erroneous.” Wise, 515 F.3d at 217.

                                             A

       Henry argues that the District Court erred by using the threats to the prosecutor as

the basis for an obstruction of justice enhancement under USSG § 3C1.1. We disagree.

       In fact, the District Court did not impose an enhancement for obstruction of justice

under USSG § 3C1.1 based on Henry‟s threat against the prosecutor. Instead, it imposed

a two-level upward departure under USSG § 5K2.0 for that threat. The District Court

explicitly predicated the obstruction of justice enhancement on Henry‟s attempt to

convince Niblack to file a false police report. Supp. App. 339, 343. This was not error.

Nonetheless, Henry argues that the District Court erred because it found that the threat

against the prosecutor could support an obstruction of justice enhancement, even absent

evidence that Henry intended it to be communicated to the prosecutor, thereby

influencing or obstructing her prosecution of him.

       We have not addressed whether USSG § 3C1.1 requires a threat to be

communicated to the intended victim or the related question of what constitutes evidence

of intent for the enhancement. Other circuit courts of appeals are split on the issue. See

United States v. Brooks, 957 F.2d 1138, 1150-51 (4th Cir. 1992) (holding that the

enhancement “requires that the defendant either threaten the codefendant, witness, or

juror in his or her presence or issue the threat in circumstances in which there is some
                                             8
likelihood that the codefendant, witness, or juror will learn of the threat.”); United States

v. Searcy, 316 F.3d 550, 552-53 (5th Cir. 2002) (joining the Second, Eighth, Ninth, and

Eleventh Circuits in holding that a threat need not be directly communicated to the victim

to support an enhancement). In this appeal, where the enhancement was not even applied

based on the threat, we have no occasion to resolve these questions.

                                              B

       Second, Henry argues that the District Court imposed the enhancement for the

threat based on the same conduct which formed the basis of another enhancement, namely

the four-level enhancement for “possess[ing] or transferr[ing] any firearm or ammunition

with knowledge, intent, or reason to believe that it would be used or possessed in

connection with another felony offense.” USSG § 2K2.1(b)(5). This argument fails for

three reasons, two of which are fact-based and one of which is a question of law. First,

the District Court imposed the § 2K2.1 enhancement both because of the threat to the

prosecutor and because Henry had reason to believe that the weapons would be used in

connection with another felony offense, namely another robbery with or by Andre. Supp.

App. 315. Second, possessing or transferring a weapon with knowledge that it will be

used in a felony is not the same conduct as making a threat to use that weapon. Finally,

“[o]nly when the Guidelines explicitly prohibit double counting will it be impermissible

to raise a defendant‟s offense level under one provision when another offense Guideline

already takes into account the same conduct.” Fisher, 502 F.3d at 309. Accordingly, the

District Court did not err in imposing a two-level upward departure under USSG § 5K2.0
                                              9
for Henry‟s threat to the prosecutor along with the other enhancements.1

                                           III

      For the foregoing reasons, we will affirm the District Court‟s judgment of

sentence.




      1
        Having found no procedural error in the District Court‟s Guidelines calculations,
Henry‟s substantive unreasonableness argument necessarily fails as it is premised on his
claim that his offense level was calculated improperly.
                                            10
