                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 08a0430p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                    X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                          No. 07-5653
          v.
                                                     ,
                                                      >
 MICHAEL GILPATRICK,                                 -
                            Defendant-Appellant. -
                                                    N
                      Appeal from the United States District Court
                   for the Middle District of Tennessee at Cookeville.
                  No. 05-00009—William J. Haynes, Jr., District Judge.
                                     Argued: October 22, 2008
                             Decided and Filed: November 26, 2008
                   Before: KEITH, MERRITT, and GIBBONS, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Joseph F. Edwards, EDWARDS & EDWARDS, Cookeville, Tennessee, for Appellant.
Marie K. McElderry, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Joseph F. Edwards, EDWARDS & EDWARDS, Cookeville, Tennessee,
for Appellant. Marie K. McElderry, Jessica Dunsay Silver, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
       GIBBONS, J., delivered the opinion of the court. MERRITT, J. (p. 8), delivered a separate
concurring opinion, in which KEITH, J., joined.
                                        _________________
                                            OPINION
                                        _________________
        JULIA SMITH GIBBONS, Circuit Judge. Defendant Michael Gilpatrick appeals the 108-
month sentence imposed by the district court following his jury conviction for conspiring to deprive
another of his civil rights, in violation of 18 U.S.C. § 241, and the substantive count of depriving
another of his civil rights, in violation of 18 U.S.C. § 242. Gilpatrick does not appeal his conviction.
Gilpatrick argues that the district court lacked the statutory authority to impose a twenty-four month
community corrections sentence, erred in increasing Gilpatrick’s offense level by two because of
its finding that Gilpatrick obstructed justice, and erred by increasing the offense level by four
because of its finding that Gilpatrick was an organizer or leader of the criminal activity. Consistent
with the other circuits that have addressed the question, we hold that district courts retain the power


                                                   1
No. 07-5653              United States v. Gilpatrick                                                        Page 2


to impose community corrections sentences and affirm the sentence of the district court in its
entirety.
                                                         I.
        This case arises from an assault that took place within the Overton County Justice Center
(“justice center”) in Livingston, Tennessee. On the evening of January 30, 2005, Ricky Beaty struck
his nineteen-year-old daughter. Beaty’s former wife and mother of his child, Christine Munsey, was
dating Garry Grigg, a deputy sheriff with the Overton County Sheriff’s Department. Grigg took
Munsey and Munsey’s daughter to the Livingston Police Department where they swore out a
domestic-assault warrant for the arrest of Beaty. Grigg called one of the Livingston officers aside
and requested that he “rough [Beaty] up” when he went to arrest Beaty. The officer rebuffed Grigg’s
suggestion and, along with his partner, arrested Beaty in the early morning hours of January 31,
2005, without incident. Officers booked Beaty into the Overton County Justice Center at 1:19 a.m.
All inmates in Overton County, regardless of whether the sheriff’s department or Livingston city
officers arrest them, are held at the justice center.
        Grigg, dressed in his deputy’s uniform and driving his police cruiser, arrived at the justice
center sometime after 4:30 a.m. There, Grigg spoke with Gilpatrick, who worked as the jail
administrator for Overton County, and one of Gilpatrick’s lieutenants, James Loftis. Grigg informed
Loftis and Gilpatrick of Beaty’s arrest and inquired as to whether either man knew of an inmate who
could “whoop [Beaty’s] ass.”
        After Grigg left the justice center, Gilpatrick ordered Loftis to go into the inmate housing
area and speak with two inmates, Steve Wright and Richard Mullins. Both men had a reputation for
fighting while incarcerated. Loftis told Wright and Mullins that a new inmate would soon join them.
Wright and Mullins were told to assault Beaty but not to “hurt him too bad.” When the inmates
questioned whether they would get in trouble for fighting, Loftis assured them, “Mike [Gilpatrick]
is aware of it.”
         As an inmate expected to be released on the same day he was arrested, Beaty was held in the
justice center’s front holding cells. 1 At 8:39 a.m., Gilpatrick ordered Kathy Goolsby, a corporal and
first-shift leader at the Overton County Justice Center, to move Beaty from the holding cell back to
pod 133, where Wright and Mullins were incarcerated. Gilpatrick told Goolsby the move was to
allow others to clean the holding cell. Goolsby thought this was strange because inmates such as
Beaty were almost never moved back into the main portion of the jail. Loftis further raised
Goolsby’s suspicions by telling Goolsby, “if anything happened in the back not to get in a hurry”
to send assistance.
         Wright and Mullins approached Beaty almost as soon as he entered pod 133 and assaulted
him. When the assault ended, Beaty, a man whom the record describes as 5' 4" in cowboy boots,
had suffered a concussion and was missing four teeth. Officers took Wright and Mullins to the
unsecured officers’ break room. There, Gilpatrick met with the inmates. With a smirk on his face,
Gilpatrick rhetorically asked Wright and Mullins if Beaty had come into their pod “running his
[mouth].” Gilpatrick also served them cake and coffee, allowed them to smoke at the no-smoking
facility, and offered to make Wright and Mullins trusties. Inmates designated as trusties are able to
work outside the jail and receive two days off their sentences for every day served.
        On November 16, 2005, a federal grand jury indicted Gilpatrick, Grigg, and fellow jail
lieutenant Johnny Gann on charges of conspiring to deprive another of his civil rights and depriving

        1
           Under Tennessee state law, a person held on a domestic violence charge must remain in jail twelve hours to
“cool off.” See Tenn. Code Ann. § 40-11-150(h)(1).
No. 07-5653               United States v. Gilpatrick                                                           Page 3


another of his civil rights. See 18 U.S.C. §§ 241-242. Loftis had earlier entered a plea of guilty to
a charge of conspiring to violate Beaty’s civil rights. Gilpatrick chose to go to trial; and on October
12, 2006, the jury convicted Gilpatrick of both counts of the indictment. Following a sentencing
hearing, the district court adopted the recommendations of the Presentencing Report. Pertinent to
this appeal, the district court concluded that Gilpatrick had obstructed justice by encouraging Wright
and Mullins to submit a written statement saying they had assaulted Beaty because he would not
stop talking. The district court also concluded that a sentencing enhancement was appropriate
because Gilpatrick had played a leadership role in the offense. The court sentenced Gilpatrick to
108 months of incarceration, eighty-four months to be served in prison and twenty-four months to
be served in a community corrections facility. This represented the bottom end of the advisory
guideline range of 108-135 months imprisonment. Gilpatrick’s timely appeal of his sentence
followed.
                                                          II.
                                                          A.
         Gilpatrick first asserts that the district court was without authority to sentence him to a term
of confinement in a community corrections facility, such as a halfway house, because congressional
amendments to the sentencing statutes      contained in the Mandatory Victims Restitution Act of 1996
(“MVRA”) removed such authority.2 Gilpatrick admits that he did not raise this issue before the
district court so that this court may only review the district court’s decision for plain error. To grant
relief under the plain error standard, this court must find that error occurred; the error was plain;
the error affected substantial rights; and the plain error “seriously affected the fairness, integrity or
public reputation of judicial proceedings.” United States v. Dedman, 527 F.3d 577, 591 (6th Cir.
2008) (citation omitted).
         The government responds that Gilpatrick cannot succeed under this standard because every
court of appeals to have considered the issue has concluded that district courts retain the power to
sentence defendants to periods of community confinement as a condition of release. Thus, the
government asserts, even if Gilpatrick’s statutory argument is correct, the error was in no way plain
so that this court cannot grant relief. Cf. Dedman, 527 F.3d at 591-92 (assuming arguendo that the
Arkansas statute at issue was unconstitutional, plain error could not be found because only one state
supreme court had found constitutional infirmity in a similar statute). We agree that Gilpatrick’s
claim cannot succeed because it was not error for the district court to impose a sentence of
community confinement. We therefore hold that the 1996 MVRA amendments did not remove this
authority from the district courts and join the conclusion reached by every court of appeals to have
considered the issue.
         As originally drafted, the Sentencing Reform Act of 1984 unambiguously provided that
district courts may impose community confinement as a condition of release. See 18 U.S.C.
§ 3563(b)(12) (1984). Section 3583(d) lists the conditions a district court may impose on supervised
release. The statute accomplished this by expressly cross referencing the conditions a district court
may place upon probation found in Section 3563(b). See 18 U.S.C. § 3583(d)(3) (2006) (allowing
a district court to order “any condition set forth as a discretionary condition of probation in section
3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be



         2
          We note that Congress recently corrected this error in the statutory language. See Pub. L. 110-406, § 14(b),
122 Stat. 4291, 4294 (eff. Oct. 13, 2008). This change in the statutes does not affect Gilpatrick, as he was sentenced
under the prior language. Therefore, we analyze the statute as it existed at the time of Gilpatrick’s sentencing and take
note of Gilpatrick’s argument that Congress was free to correct its “mistake” at any time during the past twelve years.
No. 07-5653              United States v. Gilpatrick                                                         Page 4


appropriate” as a condition of supervised release).3 In 1984, Section 3563(b)(12) specifically
allowed district courts to impose a sentence of community confinement. 18 U.S.C. 3563(b)(12)
(1984). The express cross-reference found in Section 3583(d)(3) incorporated the community
confinement condition into the conditions allowable for supervised release.
        The Mandatory Victims Restitution Act of 1996, Pub. L. 104-132, tit. II, subtit. A, § 203, 110
Stat. 1214, 1227 (1996) (codified as amended at 18 U.S.C. § 3563 (2006)), amended Section
3563(b). Section 203 of the MVRA deleted Section 3563(b)(2), a provision allowing for the
imposition of a fine, and renumbered the remaining sections. § 203(2), 110 Stat. at 1227. This
shifted the community confinement provision from its former place at Section 3563(b)(12) to its
current place at Section 3563(b)(11). See 18 U.S.C. § 3563. However, because the MVRA did not
also renumber the cross-reference found in Section 3583(d)(3), the community confinement
provision then fell into the gap not cross-referenced by the supervised release statute. See 18 U.S.C.
§ 3583(d)(3) (2006) (expressly not cross-referencing § 3563(b)(11)).
         The Ninth Circuit was the first appellate court to address this issue. In United States v. Bahe,
201 F.3d 1124, 1125, 1128 (2000), a unanimous panel of that court reviewed the legislative history
recounted above and concluded that while an argument similar to Gilpatrick’s had “superficial
appeal” based on an uninformed reading of the statutes’ text, the legislative history revealed the
current codification of the supervised-release condition to be nothing more than a “clerical error.”
As Judge Harry Pregerson’s persuasive opinion found, there was no indication in any of the
legislative history surrounding the MVRA that Congress intended to deprive district courts of the
power to impose community confinement as a condition of release. Id. at 1131-33. This conclusion
is further ratified by a latent ambiguity found within the text of the statute itself. While the second
clause of Section 3583(d)(3) contained the then improper cross-reference, the first clause states that
a district court may impose any condition on supervised release that “is consistent with any pertinent
policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a).” The Ninth
Circuit found and Gilpatrick admits that Section 5F1.1 of the Sentencing Guidelines expressly
provides that “[c]ommunity confinement may be imposed as a condition of probation or supervised
release” (emphasis added). This internal ambiguity created by the pre-2008 Section 3583(d)(3),
whereby the first clause authorized district courts to impose community confinement while the
interpretation of the second clause asserted by Gilpatrick would withhold such authorization,
necessitates the inquiry into legislative history and counsels against adopting the “absurd” result
Gilpatrick’s interpretation would create. Id. at 1130-34, 1135-36.
         In holding that district courts continued to have the power to impose community-corrections
sentences as a condition of supervised release, we align with the First, Fifth, Eighth, and Tenth
Circuits, which have resolved the issue similarly. See United States v. D’Amario, 412 F.3d 253,
256-57 (1st Cir. 2005) (per curiam); United States v. Del Barrio, 427 F.3d 280, 282-83 (5th Cir.
2005); United States v. Griner, 358 F.3d 979, 981-82 (8th Cir. 2004); United States v. Huffman, 146
F. App’x 939, 941-43 (10th Cir. 2005). We further note that each court of appeals to have
considered the issue considered it within the context of a defendant, like Gilpatrick, who did not
object to the community-confinement sentence before the district court. See, e.g., Griner, 358 F.3d
at 981; Bahe, 201 F.3d at 1125. The fact that each court of appeals to have considered Gilpatrick’s
argument has resolved the issue in favor of the continued authority of the district court further
supports any denial of relief under the plain error standard. See Dedman, 527 F.3d at 591 (noting
that for an error to be plain it must be “clear under current law” (quoting United States v. Olano, 507
U.S. 725, 734 (1993)). This holds true despite the fact that there is a smattering of district court
authority supporting Gilpatrick’s interpretation of Section 3583(d). See id. at 591-92. See also


         3
         Subsection (b)(11) originally allowed for intermittent imprisonment, thereby allowing split sentences. See 18
U.S.C. 3563(b)(11) (1984).
No. 07-5653                United States v. Gilpatrick                                                             Page 5


United States v. Mills, 186 F. Supp. 2d 965 (E.D. Wis. 2002) (finding that the amendments remove
the power of district courts to order community confinement as a condition of release); accord
United States v. Martin, No. 05-30066-WDS, 2007 U.S. Dist. LEXIS 2665 (S.D. Ill. Jan. 12, 2007);
United States v. Barrett, 198 F. Supp. 2d 1046 (S.D. Iowa 2002), abrogated by Griner, 358 F.3d at
982. But see Wingate v. United States, No. 07-cv-0034-MJR, 2007 U.S. Dist. LEXIS 82950 (S.D.
Ill. Nov. 8, 2007) (in the context of a § 2255 petition, rejecting the argument that 4district courts may
not impose a community confinement release condition and not citing Martin).
                                                            B.
         Gilpatrick next argues that the district court erred by increasing the offense level by two
levels for obstruction of justice under Section 3C1.1 of the Sentencing Guidelines because the
district court did not find that the evidence met the heightened standard of wilfulness required by
United States v. Dunnigan, 507 U.S. 87 (1993). Gilpatrick admits that Dunnigan itself only requires
this heightened standard when a court increases the offense level for perjury on the stand during
trial; however, Gilpatrick argues the same standard should apply here. The government responds
that Dunnigan does not apply to an enhancement based upon producing a false document during an
investigation, and there was ample evidence in the record to merit the application of the upward
adjustment in this case.
        “We review for clear error a district court’s factual findings underlying its decision to impose
an obstruction-of-justice enhancement under § 3C1.1. Conclusions as to what facts constitute
obstruction of justice are then reviewed de novo.” United States v. Davist, 481 F.3d 425, 427 (6th
Cir. 2007) (citing United States v. Chance, 306 F.3d 356, 389 (6th Cir. 2002)) (italics added).
Because application of the enhancement is mandatory following a proper finding of obstruction, we
finally review the enhancement itself de novo. Chance, 306 F.3d at 389. “A finding is clearly
erroneous when the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Heights Cmty. Cong. v. Hilltop Realty, Inc., 774
F.2d 135, 140 (6th Cir. 1985).
        The district court added a two-level adjustment because it found Gilpatrick had “produc[ed]
or attempt[ed] to produce a false, altered, or counterfeit document or record during an official
investigation.” U.S.S.G. § 3C1.1 n.4(c). The district court found that the false document was the
statement signed by inmates Wright and Mullins claiming that Beaty had instigated the fight by
refusing to cease talking. Dunnigan held that “if a defendant objects to a sentence enhancement
resulting from her trial testimony, a district court must review the evidence and make independent
findings necessary to establish a willful impediment to or obstruction of justice” under the perjury
definition found in 18 U.S.C. § 1621, the federal criminal perjury statute. 507 U.S. at 94-95
(emphasis added). The Supreme Court emphasized that such a finding must be made only if “the
accused has committed perjury at trial.” Id. at 98.
       We have followed the Supreme Court’s lead in only applying this heightened requirement
to enhancements based upon perjury. Chance, 306 F.3d at 390. By contrast, we have not required

         4
           We note that it is not clear in this case that, even were we to agree with Gilpatrick’s argument, that the remedy
would aid him. When imposing a criminal sanction, the district court “shall impose a sentence that is sufficient, but not
greater than necessary” both to protect the public and provide “correctional treatment” to the defendant. 18 U.S.C. §
3553(a). In the usual case, community confinement is limited to six months. See U.S.S.G. § 5F1.1 n.2 (stating
“[c]ommunity confinement generally should not be imposed for a period in excess of six months”). Here, Gilpatrick
received two years in community corrections as a condition of release. The likely alternative would have been continued
traditional incarceration. Indeed, only by including the twenty-four month period of community confinement did
Gilpatrick’s sentence reach the bare minimum 108-month sentence recommended by the advisory Sentencing Guidelines.
The availability of community confinement allowed the district judge to tailor the advisory guidelines’ range to satisfy
Section 3553(a)’s mandate that the sentence be sufficient but not greater than necessary.
No. 07-5653               United States v. Gilpatrick                                                         Page 6


such a showing when the enhancement finds its basis in submitting a false document. See, e.g.,
United States v. Fredell, 79 F. App’x 799, 807-08 (6th Cir. 2003) (defendant submitted a false
affidavit). Furthermore, the plain meaning of the note does not require any heightened standard.
Application note 4(d) to Section 3C1.1 prevents an enhancement based upon document destruction
unless the documents destroyed or concealed were “material to an official investigation or judicial
proceeding.” No such limiting language appears in application note 4(c) concerning the submission
of a false document. Therefore, this court need merely to review the district court’s factual findings
for clear error.
         The district court found that Gilpatrick had procured the false statement from Wright and
Mullins to hinder FBI Agent Scott Swallow’s investigation of Beaty’s beating. Inmate Wright
testified that Gilpatrick specifically asked him to write the statement. When Wright inquired as to
what he should say, Wright testified that Gilpatrick told him, “Hell, just tell them that he come [sic]
in there being loud and you asked him to be quiet or something.” Gilpatrick said he needed the
statement because “[t]hat guy’s [Beaty’s] family is raising hell on me.” Wright further testified that
when the FBI investigation started, Gilpatrick sent his lieutenant Johnny Gann to prod Wright once
again to write the statement. Wright had not complied with Gilpatrick’s first request because he had
yet to be made a trusty.
        Other testimony supported the district court’s finding as well. James Loftis testified that the
first suggestion for what would become Wright and Mullins’s story concerning the fight’s origin
came from Gilpatrick. When Loftis brought the two inmates into the officers’ break room
immediately following the fight, Gilpatrick’s first words   were “Well, what, did he [Beaty] do come
back there running his mouth?” Litter-grant officer5 and judicial commissioner Bobby Lawson, who
was also present in the break room, remembered Gilpatrick’s initial response as being more colorful:
“What happened? Did he come back there running his dick sucker?” This testimony from three
different witnesses clearly supports the district court’s finding that the enhancement under Section
3C1.1 should apply.
        Such conduct also legally qualifies as obstruction of justice. In Fredell, this Court held that
the district court properly found the enhancement applied where the defendant had urged a friend
to submit a false affidavit stating that the two guns found during the execution of a search warrant
belonged to the friend. 79 F. App’x at 808. The panel went on to opine, “Even in the absence of
such ‘active encouragement,’ the district court did not commit clear error in finding that [the
defendant] had obstructed justice.” Id. In this case, there is ample evidence in the record, including
testimony from three separate witnesses, to support the notion that Gilpatrick “actively encouraged”
Wright and Mullins to submit the false statement. Consequently, we find that the district court’s
application of the two-level enhancement was not clearly erroneous.
                                                          C.
         Gilpatrick’s final assignment of error is to the district court’s finding that a four-level
increase in the sentencing level was appropriate because Gilpatrick was an “organizer or leader of
a criminal activity” under Section 3B1.1(a) of the Sentencing Guidelines. Gilpatrick argues that the
district court applied the sentencing enhancement primarily because Gilpatrick was leader of the jail,
not a leader of the specific criminal activity of which he was convicted. The government responds
that this is an incorrect characterization of the district court’s ruling and argues that the district court
specifically cited multiple paragraphs of the Presentencing Report supported by the record as
grounds for its application of the enhancement. We note that “the degree of participation and


         5
         As the Overton County litter-grant officer, Lawson was responsible for supervising trusty inmates during their
work outside of the jail and thus had an interest in having only reliable inmates designated as trusties.
No. 07-5653               United States v. Gilpatrick                                                         Page 7


culpability is a factual determination entitled to review for only clear error.” United States v. Allen,
516 F.3d 364, 375 (6th Cir. 2008).
         Section 3B1.1(a) of the Sentencing Guidelines provides: “If the defendant was an organizer
or leader of a criminal activity that involved five or more participants6 or was otherwise extensive,
increase by 4 levels.” Application note four counsels that factors courts “should consider include
the exercise of decision making authority, the nature of participation in the commission of the
offense, the recruitment of accomplices . . . the degree of participation in planning or organizing the
offense . . . and the degree of control and authority exercised over others.” In its oral ruling, the
district court cited paragraphs 7-9 and 11-12 of the Presentencing Report in holding that the
application of the four-level enhancement was proper. The paragraphs referenced refer to Grigg’s
meeting with Gilpatrick and Loftis to request that someone assault Beaty, Gilpatrick’s order for
Loftis to talk with Wright and Mullins about organizing the assault, and Gilpatrick’s meeting with
Wright and Mullins following the assault in the officers’ break room.
        These citations and their antecedents in the record support the application of the
enhancement. Testimony revealed that Gilpatrick ordered his lieutenant Loftis to speak with both
Wright and Mullins about assaulting an inmate who would be put into the pod later in the day. The
instructions Loftis delivered were detailed such that Loftis related parameters concerning the amount
of force to be employed against Beaty. Shift-leader Goolsby testified that it was Gilpatrick who
ordered Beaty’s move from the holding cell to pod 133 where Wright and Mullins awaited.
Following the assault, Gilpatrick met with both Wright and Mullins and suggested how they might
develop a story to hide the fact that it was Gilpatrick who had ordered the assault. When Wright and
Mullins delayed writing their formal statement containing Gilpatrick’s suggested storyline,
Gilpatrick sent Gann to speak with the inmates to press them to submit the false statement. Cross-
referencing these facts with their summation in the Presentencing Report, the district court had more
than an adequate factual basis to conclude that Gilpatrick was “an organizer or leader” of the
conspiracy to deprive Beaty of his civil rights. Nowhere in the record do we find support for the
contention that the court based the enhancement on Gilpatrick’s status as jail administrator. We
therefore find that the district court’s enhancement cannot constitute clear error.
                                                         III.
         For the forgoing reasons, we affirm Gilpatrick’s sentence in its entirety and further hold that
district courts retained the power to impose a community-confinement condition to supervised
release during the period between the enactment of the Mandatory Victims Restitution Act of 1996
and the October 2008 amendments.




         6
           Application note 1 to Section 3B1.1 of the Sentencing Guidelines defines a “participant” as “a person who is
criminally responsible for the commission of the offense, but need not have been convicted.” The five people required
for the four-level enhancement are Overton County Sheriff’s Department employees Gann, Grigg, and Loftis along with
the two inmates Wright and Mullins.
No. 07-5653           United States v. Gilpatrick                                             Page 8


                                    _____________________
                                       CONCURRENCE
                                    _____________________
       MERRITT, Circuit Judge, concurring. I agree with the discussion of community service in
Section II.A of the court’s opinion.
        As to the sentence, it is clear that the jury in its guilty verdict accepted the testimony of
several witnesses, including Wright, Loftis and Goolsby, that Gilpatrick obstructed justice by
procuring a false statement and organized the violent assault in which Wright, Mullins, Grigg, Loftis
and Goolsby, wittingly or unwittingly, acted as participants. Hence, the enhancements are based on
the jury’s verdict and not on facts found de novo by the sentencing judge. The sentence, therefore,
does not violate the Blakely-Booker-Cunningham line of cases which foreclose judicial fact findings
outside the jury verdict that increase the Guideline offense level.
