                                                                                    FILED
                                                                        United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                     TENTH CIRCUIT                            August 17, 2012

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
v.                                                          No. 11-6166
                                                    (D.C. No. 5:10-CR-00389-R-1)
RICHARD L. BISHOP,                                          (W.D. Okla.)

             Defendant - Appellant.




                             ORDER AND JUDGMENT*


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.


      While awaiting sentencing for his involvement in a drug conspiracy, Richard

Bishop modified several letters of support and recommendation originally authored by

friends and family members. Bishop pled guilty to altering documents for use in official

proceedings, see 18 U.S.C. § 1512(c)(1); the district court sentenced him to a below-



      *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
guidelines term of 12 months imprisonment, to run consecutively with the 180-month

term he received in the drug case. In this appeal, Bishop contends the district court

improperly enhanced his guidelines range based on U.S.S.G § 2J1.2(b)(2), which

concerns interference with the administration of justice, and U.S.S.G. § 2J1.2(b)(3),

which concerns the number of documents altered. He also contends it was improper to

use his drug and money-laundering convictions to enhance his criminal history and

unreasonable to run his § 1512(c) sentence consecutive to the 180-month term. Finding

no error, we affirm.

                                      BACKGROUND

       Bishop accepted money in exchange for helping smuggle large quantities of

ephedrine from the pharmaceutical company where he worked. The ephedrine, Bishop

understood, was to be sold to methamphetamine manufacturers. As a result of his

involvement, he was convicted of money laundering and conspiring to distribute

methamphetamines. Seeking leniency from the sentencing judge, Bishop submitted some

forty letters of support from family and friends. Unbeknownst to the judge, Bishop had

altered at least 11 of the letters in a desperate attempt to bolster his case for leniency.

The alterations varied in length and degree, with some limited to a sentence or two and

others extending several pages. Still in the dark about the altered letters, the judge

sentenced Bishop to 180 months for the drug conviction and 120 months for the money

laundering conviction, the two terms to run concurrently for a total of 180 months—well

below the 235 to 293-month range recommended by the guidelines.




                                             -2-
       Not long after sentencing, Bishop pled guilty to altering the letters of support. The

probation office prepared a Presentence Report (“PSR”) recommending a base offense

level of 14, a three-point enhancement for interfering with the administration of justice

under § 2J1.2(b)(2), a two-point enhancement for altering a substantial number of

documents under § 2J1.2(b)(3), and a two-point reduction for acceptance of

responsibility. The total offense level was 16, which (together with Bishop’s criminal

history category) yielded a guidelines range of 24 to 30 months. Judge David Russell

settled on a 12-month term of imprisonment to run consecutively to the 180-month term

Bishop was already serving.1

                                      DISCUSSION

       Bishop raises four objections to his sentence: first, his sentence was improperly

enhanced under § 2J1.2(b)(2) for interference with the administration of justice; second,

his sentence was improperly enhanced under § 2J1.2(b)(3) based on the number of

documents altered; third, his drug and money-laundering convictions were improperly

used to enhance his criminal history; and fourth, running his sentence consecutive to the

sentence he was already serving was unreasonable.

       When evaluating the district court’s calculation of the guidelines, we review legal

questions de novo and factual questions 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).

       1
      Bishop was sentenced under the 2010 edition of the United States Sentencing
Commission Guidelines Manual, which we reference unless otherwise indicated.


                                            -3-
A.     The § 2J1.2(b)(2) Enhancement

       Judge Russell consulted privately with Judge Friot, the sentencing judge in

Bishop’s first case. In explaining the § 2J1.2(b)(2) enhancement, Judge Russell said, “I

know the judge [Friot] told me and he told the FBI that these letters affected his

sentencing thinking process and so I am satisfied it did substantially interfere with the

administration of justice for that very reason.” (R. 109). Judge Friot did not testify at

sentencing to the details of the conversation, which formed the sole basis for the

enhancement.

       Bishop’s objection to the § 2J1.2(b)(2) enhancement is based on two contentions:

First, the record does not support a finding that the altered letters influenced the duration

of his sentences for the drug and money-laundering convictions. In his view it is not

enough that the letters affected Judge Friot’s thinking; rather, for the enhancement to

apply, Bishop says the letters must have actually affected the sentence. Second, even if

the record could support such a finding, Judge Russell failed to marshal the appropriate

evidence at the hearing, his conclusion staked solely on the out-of-court exchange with

Judge Friot.

       Bishop did not raise these specific objections in the district court, and his more

generalized arguments against the application of § 2J1.2(b)(2) were not sufficient to

preserve the issues. See United States v. Smith, 531 F.3d 1261, 1271 (10th Cir. 2008).

Our review is therefore for plain error. United States v. Romero, 491 F.3d 1173, 1178

(10th Cir. 2007).




                                             -4-
       Section 2J1.2(b)(2) provides for a three-level increase if the offense “resulted in

substantial interference with the administration of justice,” which includes “any judicial

determination based upon perjury, false testimony, or other false evidence.” Id. § 2J1.2,

cmt. n.1. Bishop says the ordinary meaning of “resulted in” supports his argument that

the false evidence must actually cause the intended interference. This overstates the

inquiry. The question is not whether the false evidence changed the course of the

proceedings but whether it interfered with the proceedings, with interference including

any force that works against the administration of justice, even if only by frustrating the

search for truth. See United States v. Tackett, 193 F.3d 880, 887 (6th Cir. 1999). Where

the defendant is the only person who knew about the false evidence, interference can be

presumed because concealing information naturally frustrates the judicial process. See

United States v. Norris, 217 F.3d 262, 274 (5th Cir. 2000); United States v. Jones, 900

F.2d 512, 522 (2d Cir. 1990).

       Since Bishop was the only person who knew about the altered letters, such an

inference would be appropriate in this case. But even without an inference, the record

supports the district court’s conclusion that the altered letters substantially interfered with

the sentencing proceeding. In sentencing Bishop, Judge Friot was asked to account for

some forty letters of support, approximately a quarter of which had been fabricated.

There can be no question, after reading the sentencing transcript, that these letters

influenced Judge Friot’s thinking. Not only was the ultimate sentence mild in

comparison to the guidelines recommendation, but Judge Friot mentioned the letters on

several occasions, noting that he “reviewed” and “sincerely appreciate[d]” them, that they

                                             -5-
provide “insight into Mr. Bishop,” and that while it may seem “that the writing of one of

these letters carries with it the risk of being a futile exercise, . . . I assure you that it’s

not.” (Appellee’s App’x 56-57). Although we cannot quantify the effect of the altered

letters on Judge Friot’s sentence, the requisite interference stems not from the

misrepresentation’s consequences but rather from its very existence; it is enough that a

substantial portion of the letters on which the court relied was fabricated. Even if the

letters did not ultimately influence the duration of Bishop’s sentence, they still frustrated

the factfinding process by embellishing the case for leniency and wasting judicial

resources.

       Since the record provides independent support for the enhancement, we need not

determine whether Judge Russell erred by failing to bring forward evidence to

substantiate his exchange with Judge Friot. Under plain error review, the defendant bears

the burden of demonstrating prejudice to his substantial rights. See United States v.

Zubia-Torres, 550 F.3d 1202, 1208 (10th Cir. 2008). Even assuming Judge Russell erred

by relying on his conversation with Judge Friot, Bishop cannot succeed because the result

of the proceeding would not change on remand. The conversation with Judge Friot

notwithstanding, Judge Russell could have supported the enhancement by simply noting

Judge Friot’s remarks during Bishop’s first sentencing hearing. See United States v.

Kaufman, 546 F.3d 1242, 1252 (10th Cir. 2008) (holding that party asserting plain error

must show “a reasonable probability that, but for the error claimed, the result of the

proceeding would have been different.”) (citation and internal quotation marks omitted).




                                                -6-
B.     The § 2J1.2(b)(3) Enhancement

       The guidelines require a two-point enhancement if the defendant altered a

“substantial number” of documents. U.S.S.G § 2J1.2(b)(3). Bishop claims error because

the substantial-number enhancement was applied to his offense level. In support, he

offers two arguments. First, the word substantial admits of too many potential meanings

for clear application and should be struck down as unconstitutionally vague. Second,

even if the enhancement can withstand constitutional scrutiny, it should not have been

applied in this case because he did not alter a substantial number of letters.

       Neither argument has merit. To support a facial vagueness challenge, Bishop must

demonstrate how the challenged provision either “fails to provide people of ordinary

intelligence a reasonable opportunity to understand what conduct it prohibits,” or

“authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v.

Colorado, 530 U.S. 703, 732 (2000). Bishop’s contention that the word “substantial” has

no ascertainable meaning in this context is incorrect. The enhancement would surely

apply in a case where alterations tainted all or a majority of the support letters, and we

suspect a person of ordinary intelligence would reach the same conclusion if the total

were half or even nearly half. Applying “substantial” becomes less clear-cut where the

figure drops below the 50 percent mark, but such mathematical uncertainty is not fatal to

the guideline’s validity, and we have previously concluded that criminal provisions

featuring the “substantial” language survive facial challenge. See Doctor John’s, Inc. v.

City of Roy, 465 F.3d 1150, 1159 (10th Cir. 2006) (ordinance requiring licensing of store

selling”’ significant or substantial’” amount of sexually oriented merchandise was not

                                            -7-
void for vagueness); see also VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 187-88

(2d Cir. 2010) (language of zoning ordinance defining sexually oriented business as

establishment with “substantial or significant portion” of goods in adult merchandise not

unconstitutionally vague); ILQ Invs., Inc. v. City of Rochester, 25 F.3d 1413, 1418-19

(8th Cir 1994) (holding that”’ substantial or significant’” is not”’ devoid of meaningful

legislative standards’”).

       Moreover, we cannot say the sentencing court abused its discretion in concluding

the number of altered documents was substantial in this case. Whether the court was

considering the number as an absolute value (11), or as a percentage of total letters

submitted (25%), there was nothing arbitrary or unreasonable about characterizing it as

“substantial,” for the quantity of false evidence was considerable under either metric.

C.     Criminal History Points

       Bishop contends the sentencing judge should not have counted the drug and

money-laundering convictions in calculating his criminal history because those

convictions were part of the offense for altering documents and the guidelines prohibit

adding criminal history points for conduct that is “not part of the instant offense.” See

U.S.S.G. § 4A1.2(a)(1). Conduct “part of the instant offense” means relevant conduct

that, under § 1B1.3, could be used to determine the defendant’s base offense level.

See § 4A1.2(a)(1), cmt. n.1.

       Bishop’s argument has superficial appeal because the crimes were temporally

close, but that has nothing to do with their relationship under § 4A1.2(a)(1). Bishop’s

drug and money laundering offenses played no part in the commission of this altered-

                                            -8-
document conviction, and Bishop had been convicted of the former offenses well before

engaging in the latter criminal conduct. See United States v. Browning, 252 F.3d 1153,

1158-59 (10th Cir. 2001) (holding that two offenses are separate for the purposes of

§ 4A1.2(a)(1) where all the elements of the first offense occurred before any activity

forming the basis of the second offense) (citation and internal quotation marks omitted).

D.     Consecutive Sentences

       In Bishop’s view, running this sentence consecutive to the earlier two sentences

was harsher than necessary to satisfy the objectives set forth in 18 U.S.C. § 3553(a). In

determining whether a consecutive sentence is proper, the district court is guided by the

§ 3553(a) sentencing factors, which include the nature and circumstances of the offense,

the history and characteristics of the defendant, and the need for the sentence imposed to

reflect the gravity of the crime. See United States v. Rodriguez-Quintanilla, 442 F.3d

1254, 1256 (10th Cir. 2006). We generally review the imposition of consecutive

sentences for abuse of discretion, United States v. Fay, 547 F.3d 1231, 1235 (10th Cir.

2008), and we will uphold the sentence unless it is “arbitrary, capricious, whimsical, or

manifestly unreasonable,” United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir.

2008) (quotation marks omitted).

       We find nothing unreasonable about the district court’s decision to impose a

consecutive sentence. Having settled on a sentence below the guidelines range, the court

engaged in a thorough and persuasive analysis of the § 3553(a) factors. The factors

Bishop mentions on appeal—the absence of a victim, his history of hard work, his good

behavior in prison—were considered by the court and likely played a role in the court’s

                                           -9-
decision to impose a below-guidelines sentence. But the court also had to see to it that

the punishment fit the crime. As the court explained, concurrent sentences would not

reflect the seriousness of the instant crime because there would be no consequence for the

altered-documents conviction. Such a result not only would let Bishop off the hook for a

serious offense, but also would send the message to future defendants awaiting

sentencing that tricking the court into imposing a more lenient sentence may be worth the

gamble. As Judge Russell explained, “the public has to know . . . that you don’t fool

around with the judicial system, that there is a serious consequence to be paid.” (R. 115).

       AFFIRMED.



                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




                                          - 10 -
