              Case: 13-12802    Date Filed: 06/23/2014   Page: 1 of 8


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-12802
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 4:12-cr-00062-MW-CAS-4



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

STEPHEN MINK,

                                                              Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________

                                  (June 23, 2014)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Stephen Mink appeals his total 160-month sentence after pleading guilty to

conspiring to distribute 100 kilograms of marijuana, in violation of 21 U.S.C.
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§§ 846, 841(a)(1), (b)(1)(A)(viii); possession with intent to distribute marijuana, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(D); and possession of a firearm in

furtherance of a drug trafficking offense, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i). Seven codefendants were indicted with Mink on the conspiracy

to distribute marijuana charges, and two related indictments were also filed, one

with four codefendants and one against a single defendant.

      On appeal, Mink argues that the district court erred in imposing an

obstruction of justice enhancement, pursuant to U.S.S.G. § 3C1.1, based on a call

he placed from prison in which he identified a confidential informant who had

bought drugs from Mink and who was a defendant in one of the related

indictments. Mink argues that the enhancement does not apply because he did not

intend to obstruct justice in his “instant offense of conviction.” He also argues that

he should have been credited a reduction for acceptance of responsibility, pursuant

to U.S.S.G. § 3E1.1, even if we uphold the obstruction-of-justice enhancement.

      In reviewing the district court’s imposition of an enhancement for

obstruction of justice, we review “the district court’s factual findings for clear error

and review the application of the factual findings to the sentencing guidelines de

novo.” United States v. Doe, 661 F.3d 550, 556 (11th Cir. 2011). We “review the

district court’s determination of acceptance of responsibility only for clear error.”

United States v. Amedeo, 370 F.3d 1305, 1320 (11th Cir. 2004). We will not


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disturb a district court’s factual findings under the clearly erroneous standard

unless we are left with the “definite and firm conviction that a mistake has been

made.” Doyal v. Marsh, 77 F.2d 1526, 1533 (11th Cir. 1985); see Amedeo, 370

F.3d at 1320.

      Pursuant to U.S.S.G. § 3C1.1, a defendant’s offense level will be increased

by two levels if

      (1) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice with respect to the
      investigation, prosecution, or sentencing of the instant offense of
      conviction, and (2) the obstructive conduct related to (A) the
      defendant’s offense of conviction and any relevant conduct; or (B) a
      closely related offense.

U.S.S.G. § 3C1.1. An example of conduct deemed “obstructive” under § 3C1.1 is

attempting to threaten or intimidate a codefendant or witness. Id. § 3C1.1

comment. (n.4(A)).

      Prior to November 1998, § 3C1.1 applied an enhancement if a defendant

obstructed justice “during” the investigation, prosecution, or sentencing of the

“instant offense.” U.S.S.G. § 3C1.1 (1997). In 1998, Amendment 581 amended

§ 3C1.1 to apply the enhancement if a defendant obstructed justice “during the

course of” the investigation, prosecution, or sentencing of the “instant offense of

conviction,” and also added the second part to the guideline that required the

obstructive conduct relate to either (A) the defendant’s own offense of conviction

and any relevant conduct, or (B) a closely related offense. See U.S.S.G. § 3C1.1
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(1998); U.S.S.G. App. C, amend. 581 (2013). The stated purpose of Amendment

581 was to clarify the term “instant offense” and resolve a circuit split as to

whether the adjustment applied to obstructions occurring in cases closely related to

a defendant’s case or just to those obstructions that specifically related to the

offense for which the defendant was convicted. See U.S.S.G. App. C., amend. 581.

Amendment 581 adopted the majority view that the obstruction must relate “either

to the defendant’s offense of conviction or to a closely related case,” and further

clarified the temporal element of § 3C1.1, namely that the obstruction must occur

during the investigation, prosecution, or sentencing of the defendant’s offense of

conviction. See id. Thus, the obstruction must have occurred during the

prosecution of the defendant’s instant offense, but it could relate either to that case

or a closely related case. See id.

      In 2006, § 3C1.1 was amended to its current version to apply the

enhancement if the defendant obstructed justice “with respect to” (not “during the

course of”) the investigation, prosecution, or sentencing of the instant offense of

conviction. See U.S.S.G. § 3C1.1 (2006); U.S.S.G. App. C., amend. 693 (2013).

Amendment 693 addressed a circuit split regarding whether pre-investigatory

conduct could trigger the enhancement, and adopted the majority view that pre-

investigatory obstruction came within § 3C1.1 if it was purposefully calculated and

likely to thwart the investigation or prosecution of the offense of conviction. See


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U.S.S.G. App. C., amend. 693; see also Amedeo, 370 F.3d 1305. In interpreting

§ 3C1.1, under the current Guidelines, this Court has stated that the “‘relevant

question is whether the obstructive conduct occurred during the investigation,

prosecution, or sentencing’ of the offense of conviction or a closely related

offense.” Doe, 661 F.3d at 566 (quoting United States v. Campa, 529 F.3d 980,

1016 (11th Cir. 2008)).

      Under U.S.S.G. § 3E1.1, the district court will decrease a defendant’s

offense level by two if he “clearly demonstrates acceptance of responsibility for his

offense.” U.S.S.G. § 3E1.1(a). Upon the government’s motion and assertion that

the defendant assisted in the investigation or prosecution of his own misconduct by

timely pleading guilty, the district court shall decrease the offense level by one

additional level. Id. § 3E1.1(b); see id. § 3E1.1, comment. (n.6). However, while

a defendant’s guilty plea before trial and admission of the conduct comprising the

offense of the conviction will constitute “significant evidence” of acceptance of

responsibility, “this evidence may be outweighed by conduct of the defendant that

is inconsistent with such acceptance of responsibility,” and a defendant who pleads

guilty is not entitled to an adjustment under § 3E1.1 as a matter of right. Id.

§ 3E1.1, comment. (n.3). Conduct resulting in an enhancement under § 3C1.1 for

obstruction of justice “ordinarily indicates that the defendant has not accepted

responsibility for his criminal conduct.” Id. § 3E1.1, comment. (n.4). The


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commentary states that there “may” be “extraordinary cases” in which adjustments

under both § 3C1.1 and § 3E1.1 would apply. Id. Because the sentencing judge is

in a unique position to evaluate a defendant’s acceptance of responsibility, the

district court’s determination on this issue is “entitled to great deference.” Id.

§ 3E1.1, comment. (n.5).

      Here, Mink does not actually challenge the fact that he made a phone call

from prison identifying a confidential informant. The district court concluded that

Mink’s call demonstrated a “clear intent” to intimidate the confidential informant,

conduct that would fit within § 3C1.1. This finding is not clearly erroneous, as it is

supported by the testimony of a Drug Enforcement Agency special agent at the

sentencing hearing. See Doyal, 77 F.2d at 1533. Accordingly, the question that

remains before us is whether Mink’s conduct obstructed justice as contemplated by

the Sentencing Guidelines.

      First, Mink’s obstruction occurred during the investigation, prosecution, or

sentencing of his instant offense because the phone calls were placed prior to his

sentencing. See Doe, 661 F.3d at 566. That satisfies the “with respect to . . . the

instant offense of conviction” language of the current § 3C1.1, which seems to

include the “during the course of” language that was added by Amendment 581,

and is in fact broader to also include certain pre-investigation conduct within

§ 3C1.1. See U.S.S.G. App. 3, amend. 693 (explaining that the purpose of the


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amendment was to expand § 3C1.1). Accordingly, the district court properly

applied the § 3C1.1 enhancement so long as Mink’s obstructive conduct related

either to his offense of conviction or to a closely related case. See U.S.S.G.

§ 3C1.1.

      Mink’s and the confidential informant’s offenses are closely related. See

Doe, 661 F.3d at 556. The confidential informant’s and Mink cases were charged

on the same day and in consecutive case numbers, both Mink and the confidential

informant purchased marijuana from the same codefendants, and the confidential

informant also admitted to purchasing drugs from Mink. Additionally, the record

indicates that, at the time of Mink’s call, proceedings were ongoing as to all of his

seven codefendants. On the related indictments, proceedings were ongoing for

three out of the five defendants, including the confidential informant. Thus,

Mink’s outing of the confidential informant, with the intent to intimidate, affected

his case and both related cases, and qualified as obstruction of justice under

§ 3C1.1. Accordingly, the district court did not err by applying the enhancement.

       Because the district court did not err by applying § 3C1.1, Mink is entitled

to an acceptance of responsibility adjustment only if his circumstances represent an

“extraordinary case.” See Amedeo, 370 F.3d at 1321. The district court’s

conclusion that Mink’s outing of a confidential informant, coupled with his

conduct, attitude, and lack of cooperation throughout the proceedings, all showed


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that he had not clearly accepted personal responsibility for his criminal offense, is

not clearly erroneous. Mink has not shown that the district court clearly erred in

not finding this to be an extraordinary case where he merited both a § 3C1.1 and

§ 3E1.1 adjustment.

      AFFIRMED.




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