                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2001

USA v. Jenkins
Precedential or Non-Precedential:

Docket 01-1292




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Filed December 20, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1292

UNITED STATES OF AMERICA

v.

ROBERT JENKINS
a/k/a OCIELE HAWKINS
a/k/a WILLIAM JENKINS

       Robert Jenkins,
       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 99-cr-00277
(Honorable Harvey Bartle, III)

Argued October 11, 2001

Before: BECKER, Chief Judge, SCIRICA and GREENBERG,
Circuit Judges

(Filed December 20, 2001)

       DAVID L. McCOLGIN, ESQUIRE
        (ARGUED)
       Defender Association of Philadelphia
       Federal Court Division
       Curtis Center, Suite 540 West
       Independence Square West
       Philadelphia, Pennsylvania 19106

        Attorney for Appellant
       WALTER S. BATTY, JR., ESQUIRE
        (ARGUED)
       Office of United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, Pennsylvania 19106

        Attorney for Appellee

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This appeal involves an interpretation of U.S.S.G.
S 3C1.1. A jury convicted Robert Jenkins for unlawfully
possessing firearm ammunition. The District Court
increased Jenkins's offense level by two levels under
U.S.S.G. S 3C1.1 for obstructing justice by failing to appear
at a state court hearing. Jenkins challenges the sentence
enhancement only. For reasons that follow, we will reverse
and remand for resentencing.

I.

On October 29, 1996, following a complaint from a local
store owner, Philadelphia police officers arrested Robert
Jenkins. He was charged with retail theft and possession of
a firearm without a license, both violations of Pennsylvania
law, and ordered to appear in state court on those charges.
On three separate occasions -- November 6, 1996; March
19, 1997; and March 4, 1999 -- Jenkins failed to appear.
On March 3, 1999, the day before Jenkins's third failed
appearance, an assistant United States attorney began
preparing a federal complaint against him. On May 18,
1999, federal prosecutors indicted Jenkins for illegally
possessing firearm ammunition, a violation of 18 U.S.C.
S 922(g)(1). Jenkins was arrested by federal officials on
September 15, 1999.

As part of a plea agreement, Jenkins pled guilty in federal
court to being a felon in possession of ammunition, a
violation of 18 U.S.C. S 922(g)(1). Finding"obstruction of
justice" under U.S.S.G. S 3C1.1, the District Court added a

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two-level enhancement for Jenkins's failure to appear in
state court. Three levels were subtracted for acceptance of
responsibility. With a total offense level of 19, Jenkins's
guideline range was forty-six to fifty-seven months. He was
sentenced to fifty-four months in prison, three years of
supervised release, and a special assessment of $100.
Without the two-level enhancement, Jenkins's offense level
would have been 17, and he would have faced a guideline
range of thirty-seven to forty-six months.

In his initial appeal, Jenkins challenged the District
Court's imposition of the two-level upward adjustment. The
government filed a consent motion for remand, which we
granted. After an evidentiary hearing, the District Court
found: (1) the federal investigation of Jenkins commenced
on March 3, 1999; and (2) Jenkins was unaware of the
federal investigation on that date. Nevertheless, the District
Court determined Jenkins's awareness of the state
proceedings provided sufficient grounds for applying the
two-level enhancement. The District Court confirmed its
prior sentence, including the obstruction enhancement.
This appeal followed.

II.

Our review of the District Court's interpretation and
application of the Sentencing Guidelines is plenary. United
States v. Figueroa, 105 F.3d 874, 875-76 (3d Cir. 1997). We
review the District Court's factual findings for clear error.
United States v. Carr, 25 F.3d 1194, 1207 (3d Cir. 1994).

III.

United States Sentencing Guideline S 3C1.1, entitled
"Obstructing or Impeding the Administration of Justice,"
provides:

       If (A) the defendant willfully obstructed or impeded, or
       attempted to obstruct or impede, the administration of
       justice during the course of the investigation,
       prosecution, or sentencing of the instant offense of
       conviction, and (B) the obstructive conduct related to (i)
       the defendant's offense of conviction and any related

                               3
       conduct; or (ii) a closely related offense, increase the
       offense level by 2 levels.

Interpreting a pre-1998 version of S 3C1.1, the Supreme
Court held the guideline requires sentencing courts to
"review the evidence and make independent findings
necessary to establish a willful impediment to or
obstruction of justice, or an attempt to do the same." United
States v. Dunnigan, 507 U.S. 87, 95 (1993). The guideline
explicitly applies when a defendant "willfully fail[s] to
appear, as ordered, for a judicial proceeding." U.S.S.G.
S 3C1.1 app. n.4(e).1 The District Court found Jenkins
subject to a two-level enhancement, reasoning, "[I]f a
defendant knows he is engaging in obstructive conduct
concerning the Federal investigation or concerning a closely
related State offense and the obstruction occurs during the
time of the Federal investigation, the criteria of Section
3C1.1 have been met." (App. 135a (emphasis added))

Jenkins concedes his "obstructive" conduct-- the failure
to appear in state court -- occurred after the federal
investigation against him began, satisfying the temporal
aspect of the enhancement. But Jenkins contends he was
incapable of "willfully" obstructing justice because he was
unaware of the federal investigation on March 4, 1999.2

The threshold issue is whether the inclusion of the word
"willfully" in U.S.S.G. S 3C1.1 requires the government to
prove Jenkins was aware of the federal investigation. We
have plenary review over this question of law.3 In this case,
_________________________________________________________________

1. The examples set forth in the commentary to U.S.S.G. S 3C1.1 are not
exhaustive. See id. app. n.3 ("Obstructive conduct can vary widely in
nature, degree of planning, and seriousness. . . . Although the conduct
to which this adjustment applies is not subject to precise definition,
comparison of the examples set forth in Application Notes 4 and 5
should assist the court in determining whether application of this
adjustment is warranted in a particular case.").
2. Jenkins also challenges the constitutionality of 18 U.S.C. S 922(g)(1),
which formed the basis for his conviction. We recently upheld the statute
under a similar challenge. United States v. Singletary, 268 F.3d 196 (3d
Cir. 2001). Therefore, the only substantial issue on appeal is the two-
level sentencing enhancement.
3. It would appear that "willfully" is a term with "no fixed meaning."
Smith v. Wade, 461 U.S. 30, 63 n.3 (1983) (Rehnquist, J., dissenting).
The word has "a wide variety of definitions" and is often construed "in
accordance with its context." McLaughlin v. Richland Shoe Co., 486 U.S.
128, 137 (1988) (Marshall, J., dissenting).

                               4
the term "willfully" must be considered in context, with
reference to the other words in U.S.S.G. S 3C1.1.

We interpret United States Sentencing Guidelines the
same way we interpret statutes, "using the terms' meaning
in ordinary usage." United States v. Loney , 219 F.3d 281,
284 (3d Cir. 2000). In S 3C1.1(A), the Sentencing
Commission chose to place "willfully" directly before
"obstructed" and "impeded," modifying both verbs. Its
meaning, therefore, in ordinary usage is that a defendant
must have willfully obstructed or impeded the
administration of justice "during the course of the
investigation . . . of the instant offense of conviction." To
read in anything further would strain its ordinary meaning.
Cf. United States v. Clayton, 172 F.3d 347, 356 (5th Cir.
1999) (Wiener, J., concurring) ("Whether examined under
legal canons of statutory interpretation or plain English
rules of syntax, the phrase `during the investigation' should
be read to modify the immediately preceding phrase,
`administration of justice,' not the more remote clause [`the
defendant willfully . . . attempted to obstruct or impede'].").

In view of the language, structure, and context of
U.S.S.G. S 3C1.1, we believe the ordinary meaning of
"willfully" is "deliberately or intentionally"; in other words,
not "negligently, inadvertently, or accidentally." Jenkins
does not dispute that his failure to appear in state court
was an intentional action, one taken with full awareness of
the proceedings.4 On this threshold issue, Jenkins's
conduct represented a "willful obstruction."

Jenkins contends the guideline requires an awareness on
his part that a federal investigation had begun. The term
"awareness" does not appear in U.S.S.G. S 3C1.1. Nor do we
believe that it can be properly implied. Incorporating such
a requirement would contravene the purpose of the 1998
amendment to the guideline. As the Sentencing
Commission explained, the amendment clarified "what the
term `instant offense' means in the obstruction of justice
guideline." U.S.S.G. app. C, amend. 581.5 At the time of the
_________________________________________________________________

4. Jenkins does not claim that his failure to appear resulted from
negligence, for example, like forgetting the date of the hearing.

5. The Commission amended the language in response to inter-circuit
disagreement whether sentencing courts could impose the enhancement

                               5
amendment, several courts of appeals had affirmed
sentencing enhancements based on the obstruction of state
proceedings. E.g., United States v. Self , 132 F.3d 1039,
1042 (4th Cir. 1997) ("Section 3C1.1 draws no distinction
between a federal investigation and a state investigation.");
United States v. Smart, 41 F.3d 263, 265-66 (6th Cir. 1994)
(defendant's use of a false name in state court proceedings
obstructed closely related federal proceedings by delaying
his arrest); United States v. Emery, 991 F.2d 907, 911-12
(1st Cir. 1993) (defendant's attempted escape from state
authorities obstructed closely related federal proceedings by
prolonging the onset of federal proceedings). The
Commission nevertheless decided not to require "awareness
of the federal proceeding" in U.S.S.G. S 3C1.1. As the
government observes, the 1998 amendment ensured the
section applied to obstruction in related, non-federal
matters. Without further guidance from the Sentencing
Commission, we will not write in a requirement that the
defendant be aware of the federal investigation.

Jenkins observes that three of our sister circuits have
said in this context, "willfully" must imply some level of
awareness by the defendant of the federal investigation. In
United States v. Brown, 237 F.3d 625, 628 (6th Cir.), cert.
denied, 121 S. Ct. 1981 (2001), the Court of Appeals for the
Sixth Circuit held:

       However, the term ["willfully"] generally connotes some
       kind of deliberate or intentional conduct. Logically, [the
       defendant's] actions cannot have been willful unless he
       had some idea that he was being investigated.
       Otherwise, the adjustment would serve no deterrent
       purpose.

See also United States v. Lister, 53 F.3d 66, 69 (5th Cir.
1995) ("[A] defendant's awareness of the commencement of
an investigation is relevant and necessary for the
obstruction of justice enhancement."); United States v.
_________________________________________________________________

for conduct in cases closely related to the federal offenses of
conviction.
Subsection (B) now indicates the obstruction "must relate either to the
defendant's offense of conviction (including any relevant conduct) or to a
closely related case." Id.

                               6
Oppedahl, 998 F.2d 584, 585-86 (8th Cir. 1993) (relying on
deterrence principles to find a defendant must be aware of
an investigation to be subject to the enhancement).

In contrast, the Court of Appeals for the Seventh Circuit
has held awareness is not a prerequisite for imposing the
obstruction-of-justice requirement. In United States v.
Snyder, 189 F.3d 640 (7th Cir. 1999), the court observed,
"It is clear, however, that a defendant need not know that
he is under investigation at the time of the obstructive
conduct." Id. at 648 (citing United States v. Schmidt, 47
F.3d 188, 192 n.3 (7th Cir. 1995)).6 Given the guideline's
plain text and the stated purpose of the 1998 amendment,
we endorse this approach.

Jenkins contends such a conclusion depends on the
fortuity of initiating an investigation the day before his
_________________________________________________________________

6. In Schmidt, the Court of Appeals for the Seventh Circuit noted in
dicta, "Even if we were to reach the merits of the [defendants'] appeal,
we
would affirm the sentences imposed. First, the district court's
enhancement of the [defendants'] sentences under U.S.S.G. S 3C1.1 for
willful obstruction of justice was proper, despite the fact that the
defendants' actions -- removing water sampling probes from planting
lines -- occurred before they knew they were under investigation." 47
F.3d at 192 n.3. For that proposition, the Schmidt court cited United
States v. Polland, 994 F.2d 1262, 1269 (7th Cir. 1993). Considering the
pre-1998 version of U.S.S.G. S 3C1.1, the Polland court held:

       Section 3C1.1 indicates that the obstruction of justice enhancement
       does not apply to any and all obstructive conduct that a defendant
       may have committed, but instead applies only to willful attempts
"to
       obstruct or impede the administration of justice during the
       investigation, prosecution, or sentencing of the instant offense."
       U.S.S.G. S 3C1.1. In other words, section 3C1.1 does not
       contemplate enhancements for obstruction of justice if the relevant
       conduct impedes the investigation or prosecution of a separate
       crime.

Id. The Polland court construed the pre-1998 language "instant offense"
to mean "instant offense of conviction," a change formalized in the 1998
amendments. Id. Construing the commentary accompanying the
guideline, the court said, "[T]he commentary clarifies that the
significant
factor is not merely the timing of the obstruction but rather whether the
obstruction or attempt involves evidence that is material to the
investigation or prosecution of the instant offense of conviction." Id.

                                7
unrelated appearance in state court. But this type of "line
drawing" is common in the law. Statutes of limitations and
other time-bar rules impose legal consequences based on
specific timing. Because a federal investigation against
Jenkins could have begun two days later does not change
the fact that the investigation, commenced before Jenkins's
"obstructive" conduct, met the textual requirements of
U.S.S.G. S 3C1.1.7

IV.

That does not, however, end our inquiry. Federal
proceedings here were initiated almost three years after
related state proceedings began. Jenkins admits he was
aware of the state proceedings pending against him in
Pennsylvania, consciously failing to appear for hearings on
three separate dates. But Jenkins's failure to appear in
state court before his federal indictment had no effect
whatsoever on the later federal proceedings. The
government presented no evidence the federal investigation
against Jenkins, initiated on March 3, 1999, was
obstructed or impeded by his failure to appear in state
court the next day. The federal indictment was apparently
issued when it was prepared, without any delay engendered
by Jenkins's failure to appear in state court. We exercise
plenary review over the application of U.S.S.G.S 3C1.1 in
these circumstances.

The government contends Jenkins's absence from the
state court proceeding is relevant for sentencing purposes
because it indicates his overall culpability. But U.S.S.G.
S 3C1.1 is not an invitation to consider every instance in
which a defendant acted in a blameworthy fashion. Only
conduct obstructing the "instant offense of conviction" is
relevant to sentencing. See United States v. Luca, 183 F.3d
_________________________________________________________________

7. Judge Becker does not join in Part III because he believes that the
correct interpretation of U.S.S.G. S 3C1.1 is stated in United States v.
Brown, 237 F.3d 625, 628 (6th Cir.), cert. denied, 121 S. Ct. 1981
(2001), United States v. Lister, 53 F.3d 66, 71 (5th Cir. 1995), and
United
States v. Oppedahl, 998 F.2d 584, 586 (8th Cir. 1993). See supra at 6,
7. However, inasmuch as he joins in Part IV, he concurs in the
judgment.

                               8
1018, 1022 (9th Cir. 1999) ("For the obstruction of justice
enhancement to apply, the district court must find that the
defendant willfully provided a materially false statement to
law enforcement officers that actually obstructed or
impeded the official investigation or prosecution of the
instant federal offense."). Without some nexus between the
obstruction and the federal offense, U.S.S.G. S 3C1.1 is
inapplicable.

The Court of Appeals for the Ninth Circuit has said the
governing standard is the "effect of the obstructive conduct
rather than the level of law enforcement that was
obstructed." Id. We agree. The application notes to U.S.S.G.
S 3C1.1 observe that some forms of obstructive conduct --
including fleeing from arrest, providing incomplete or
misleading information during a presentence investigation,
and making false statements while not under oath-- do
not merit the enhancement. U.S.S.G. S 3C1.1 app. n.5. In
contrast, where such conduct "significantly obstruct[s] or
impede[s] the official investigation or prosecution of the
instant offense," a sentence is properly increased. Id. app.
n.4(e).

Prior cases have affirmed sentence enhancements based
on conduct involving state court proceedings that
obstructed the federal investigation, prosecution, or
sentencing of the defendant. In United States v. Imenec, 193
F.3d 206 (3d Cir. 1999), the defendant was scheduled to
appear in state court on November 26, 1991, for a
preliminary hearing. Id. at 207. His failure to do so
prevented federal prosecutors, who had secured a warrant
for the defendant's arrest on November 25, 1991, from
detaining him. Id. We affirmed the imposition of a two-level
enhancement under the pre-1998 version of U.S.S.G.
S 3C1.1, stating:

       Based on the text and purpose of S 3C1.1, we conclude
       that the Sentencing Commission's intent was to impose
       an enhancement for any conduct that obstructs an
       investigation, prosecution, or sentencing proceeding
       that is based on the criminal conduct underlying the
       specific statutory offense for which the defendant is
       being sentenced. Section 3C1.1 imposes a sanction for
       conduct that obstructs a criminal investigation, even

                               9
       though the investigation has not matured into a
       prosecution and indeed, even though no thought has
       yet been given to what the appropriate criminal charge
       might be.

Id. But where the obstructive conduct relates only to an
ongoing state prosecution, with no discernable effect on the
federal proceedings, enhancement under U.S.S.G.S 3C1.1
is improper. Cf. United States v. Perez, 50 F.3d 396, 400
(7th Cir. 1995) (vacating an enhancement under U.S.S.G.
S 3C1.1 where "the obstructive conduct only affected [the
defendant's] state prosecution and had no effect on the
investigation, prosecution, or sentencing of [the
defendant's] federal offense"); United States v. Adediran, 26
F.3d 61, 65 (8th Cir. 1994) (concluding the "instant offense"
language in U.S.S.G. S 3C1.1, pre-amendment,"requires
some connection between the obstructed state proceedings
and the investigation of the federal offense").

In United States v. Roberts, 243 F.3d 235 (6th Cir. 2001),
the Court of Appeals for the Sixth Circuit affirmed a two-
level enhancement under U.S.S.G. S 3C1.1 where the
defendant fled from state custody and was subsequently
indicted by federal authorities. Id. at 240. The court found
the defendant's escape from state officials frustrated the
federal proceedings:

       [The defendant] was still on the run when federal
       charges were filed against him. The fact that he was on
       the run rather than in the custody of the state would
       have made it much more difficult for federal authorities
       to prosecute [him]. . . . [The defendant's] obstructive
       conduct -- escape -- did have an effect on the federal
       prosecution.

Id. We believe Roberts is distinguishable on its facts. As
stated, Jenkins failed to appear in state court on March 4,
1999. The sealed federal indictment was not issued until
March 18, 1999. While the assistant United States attorney
began preparing the indictment on March 3, 1999, there is
no claim that Jenkins's absence from state court the next
day compromised the federal investigation in any way.
Therefore, unlike in Roberts, Jenkins is not more "culpable"
for federal sentencing purposes because of his conduct

                               10
before the state tribunal. The two-level enhancement for
obstruction of justice was improper.

V.

Despite several amendments, U.S.S.G. S 3C1.1 is no
model of clarity. In its current construction, we find the
defendant need not be aware of the federal investigation at
the time of the obstructive conduct. But the obstructive
conduct cannot merely affect some global application of
"the administration of justice." The federal proceedings
must be obstructed or impeded by the defendant's conduct.
In other words, there must be a nexus between the
defendant's conduct and the investigation, prosecution, or
sentencing of the federal offense. Jenkins's failure to appear
in state court on March 4, 1999 did not obstruct the federal
proceedings initiated against him the previous day.
Imposing a two-level enhancement for this conduct would
neither deter future defendants from acting similarly nor
serve the ends of justice in this case.

VI.

For these reasons, we will reverse the finding of the
District Court imposing a two-level enhancement for
obstruction of justice under U.S.S.G. S 3C1.1 and remand
for resentencing.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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