                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2004

USA v. Bush
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2704




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"USA v. Bush" (2004). 2004 Decisions. Paper 840.
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                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEAL
                           FOR THE THIRD CIRCUIT


                                      No. 03-2704


                          UNITED STATES OF AMERICA,

                                           v.

                                   MELVIN BUSH,

                                                Appellant




                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 02-cr-00651-1)
                        District Judge: Hon. Legrome D. Davis


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 13, 2004

               BEFORE: RENDELL, COW EN and LAY*, Circuit Judges

                                 (Filed: April 14, 2004)


                                       OPINION


COWEN, Circuit Judge.




*Honorable Donald P. Lay, Senior United States Circuit Judge for the Eighth Circuit,
sitting by designation.
       Marvin Bush was charged in an indictment with conspiracy to commit armed

robbery of a federal credit union, in violation of 18 U.S.C. § 371; armed robbery of a

federal credit union, in violation of 18 U.S.C. § 2113(d); using a firearm during a crime

of violence, in violation of 18 U.S.C. § 924(c); and aiding and abetting, in violation of 18

U.S.C. § 2. On February 24, 2003, a jury found Bush guilty of all charges. At

sentencing, the District Court added a two-level enhancement under § 3C1.1 of the

United States Sentencing Guidelines (“Sentencing Guidelines”). The District Court

sentenced Bush to serve a prison term of 155 months, and to pay $29,977.00 in restitution

and a $300.00 special assessment. The District Court further sentenced Bush to a five-

year period of supervised release, to commence after his term of imprisonment has ended.

This appeal followed. The District Court had jurisdiction under 18 U.S.C. § 3231, and

we exercise jurisdiction under 28 U.S.C. § 1291.

       Bush argues that the District Court should not have applied an enhancement under

§ 3C1.1, because the prosecution never refuted Bush’s testimony that the offending

language was not intended to be a threat. While Bush was in custody awaiting

sentencing, he sent a letter to his wife, in which he stated, “I will get that prosecutor, Seth

Weber, for doing this to me and (SA) Neeson for fucking up our getaway trip for that

weekend.” (Gov’t App. at 1.) The letter was reviewed by Bureau of Prisons personnel,

who interpreted this sentence as a threat and notified Assistant United States Attorney

Weber. The government then filed a supplemental sentencing memorandum, requesting



                                               2
that the District Court add an obstruction of justice enhancement under § 3C1.1 of the

Sentencing Guidelines.

       The District Court postponed the sentencing hearing to allow the parties time to

brief the issue, and held an evidentiary hearing on June 5, 2003. At the hearing,

prosecutors entered a copy of the letter into evidence, and argued that Bush had

intentionally written the offending sentence, and that the sentence was reasonably

construed as a threat against the prosecutor and the chief prosecution witness. Bush

testified and explained that he did not mean the sentence as a threat to anyone, but merely

meant to emphasize to his wife that he would prevail on appeal. The District Court did

not credit Bush’s explanation, and granted the government’s request for a two point

enhancement.

       We review the District Court’s factual determination that Bush willfully obstructed

or attempted to obstruct justice for clear error, and the District Court’s legal

interpretations and application of the guidelines under a plenary standard. See United

States v. Powell, 13 F.3d 464, 467 (3d Cir. 1997).

       Under the Sentencing Guidelines,

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




                                              3
U.S.S.G. § 3C1.1. The application notes explain that this adjustment applies to

“threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness,

or juror, directly or indirectly, or attempting to do so.” U.S.S.G. § 3C1.1, cmt. n.4(a).

The government bears the burden of proof when it seeks an upward adjustment. United

States v. Belletiere, 971 F.2d 961, 965 (3d Cir. 1992). It must prove, by a preponderance

of the evidence, that “the defendant willfully obstructed or impeded, or willfully

attempted to obstruct or impede, the administration of justice.” Id

       In this case the government produced the letter containing the offending language.

Bush concedes that he did write the letter, including the offending language, and

acknowledges that the language could be construed as a threat. He argues, however, that

the District Court erred in applying § 3C1.1 because the government did not refute Bush’s

testimony that he did not intend the language as a threat. Although Bush did testify that

he meant only to show his wife how confident he was that he would prevail upon appeal,

the District Court was not required to accept his explanation. The District Court

explained that the words would generally be interpreted as a threat, and that Bush’s

testimony “does not convince me that [Bush] had an alternate meaning.” (Appellant’s

App. at 33a.) This finding was not clearly erroneous. Accordingly, the District Court did

not err in granting the government’s request for an enhancement under § 3C1.1.




                                              4
      For the foregoing reasons, the judgment of the District Court entered on June 9,

2003 will be affirmed.
