                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1169
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                Jacob William Brisbin

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                            Submitted: February 8, 2016
                             Filed: September 1, 2016
                                  [Unpublished]
                                  ____________

Before SMITH, MELLOY, and COLLOTON, Circuit Judges.
                           ____________

PER CURIAM.

       Defendant Jacob Brisbin pleaded guilty to conspiring to manufacture and
distribute methamphetamine by a drug felon. The district court1 sentenced Brisbin to
420 months in prison. Brisbin appeals, arguing the district court erred in applying a

      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
sentencing adjustment for obstruction of justice and denying a reduction for
acceptance of responsibility. Brisbin also argues the district court erred when it
proposed an alternate sentence. We affirm.

                                    I. Background

      A grand jury indicted Brisbin on two counts, including conspiring to
manufacture and distribute methamphetamine by a drug felon in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 851, and manufacturing and attempted
manufacturing of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), 846, and 851. Pursuant to a plea agreement, Brisbin pleaded guilty to
Count I, conspiracy to manufacture and distribute methamphetamine by a drug felon.

       While Brisbin was detained on the instant charges, he engaged in several
activities with the apparent intent to publicize the identities of the government’s
witnesses and cooperators. First, on August 28, 2014, someone posted the names of
several witnesses and cooperators on Brisbin’s brother’s Facebook page.2 Next, while
Brisbin was being held at the Linn County Jail, law enforcement intercepted a note
Brisbin had written to another inmate. The note contained an aggressive message to
the inmate, who appeared to have cooperated with the government in the case against
Brisbin.3 Finally, on December 3, 2014, Brisbin made a recorded phone call to his
mother. This phone call took place after Brisbin pleaded guilty (October 6, 2014) and


      2
         Brisbin’s brother, Tyler Brisbin, was also incarcerated at the time of the
Facebook post. Neither brother had access to the Facebook account when information
was posted. The district court did not rely on this conduct in applying the obstruction
of justice enhancement.
      3
         The note read: “Bro that f**ked up my lawyer is bring up your statement your
just like [name omitted] I thought you were a friend. No I see your just like ever one
else. You want to tell people I jump on your case you might want to get the info right.
You’re a bitch and a rat. I send the paper over there”

                                         -2-
after the probation office prepared the initial draft of his Presentence Investigation
Report (“PSR”) (November 26, 2014). Brisbin and his mother discussed his PSR and
Brisbin stated, “I’m going to get another copy of [the PSR] and I’m going to send it
out and put it all over my f**king Facebook.” Brisbin’s mother seemed to agree that
if Brisbin gave her a copy of the PSR, she would “flash it all over the f**king
computer.” After law enforcement listened to this call, a magistrate judge ordered that
Brisbin surrender his copy of the PSR. Brisbin’s attorney obtained Brisbin’s copy of
the PSR on December 5, 2014, and Brisbin did not send a copy of the document out
of the jail.

       According to the PSR, the parties agreed that Brisbin’s minimum offense level
would be thirty-four based on the amount of methamphetamine he had manufactured
or distributed. The base offense level increased by two levels for use of a gun. The
parties also stipulated to a two-level enhancement because Brisbin was an organizer
or leader of his drug manufacturing organization. The Probation Officer
recommended that Brisbin receive credit for accepting responsibility and that he
receive no enhancement for obstruction of justice. This would have resulted in an
offense level of thirty-five and criminal history category VI, with a sentencing
guidelines range of 292 to 365 months. The government objected to the failure to
increase the offense level for obstruction of justice.

        At sentencing, the government presented evidence as to Brisbin’s actions while
in jail. Ultimately, the district court determined that Brisbin’s recorded telephone
conversation with his mother about posting his PSR on the internet constituted a
substantial step toward obstructing justice by intimidating, unlawfully influencing, or
retaliating against government witnesses. The district court noted that Brisbin’s note
to a fellow cooperating inmate also provided a basis for obstruction of justice. As a
result of Brisbin’s obstructive behavior, the district court concluded that Brisbin was
not entitled to receive credit for acceptance of responsibility. Based on a total offense
level of forty and a criminal history category VI, the district court determined

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Brisbin’s guideline sentencing range was 360 months to life in prison. Rejecting
Brisbin’s motion for a downward variance, the district court sentenced Brisbin to 420
months in prison. The district court also imposed 420 months as an alternate sentence
identifying the objection to the obstruction of justice enhancement and considering the
18 U.S.C. § 3553(a) factors. Brisbin appeals.

                                     II. Discussion

                       A. Obstruction of Justice Enhancement

       Brisbin argues the district court erred in applying the obstruction of justice
enhancement based on the recorded phone call to his mother and the written note to
another inmate. We review “a district court’s factual findings underlying an
obstruction of justice enhancement for clear error and its construction and application
of the guidelines de novo.” United States v. Mohamed, 757 F.3d 757, 761 (8th Cir.
2014) (quoting United States v. Mabie, 663 F.3d 322, 334 (8th Cir. 2011)). “Clear
error exists when the court is left ‘with the definite and firm conviction that a mistake
has been committed.’” United States v. Adetiloye, 716 F.3d 1030, 1036 (8th Cir.
2013) (quoting United States v. Lalley, 257 F.3d 751, 758 (8th Cir. 2001)).

       The two-level adjustment for Obstructing or Impeding the Administration of
Justice applies “[i]f (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 . . . the defendant’s offense of conviction.” U.S.S.G. § 3C1.1.

       Brisbin challenges the district court’s application of § 3C1.1 in four ways:
(1) the evidence does not show Brisbin’s conduct rose to the level of an attempt;
(2) there is no evidence to prove a nexus between his allegedly obstructive conduct
and his pending sentencing hearing; (3) even if Brisbin took a substantial step toward

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posting his PSR on the internet, this conduct does not constitute obstruction of justice;
and (4) Brisbin’s note to a cooperating inmate was motivated by anger, not the desire
to influence testimony or intimidate the inmate. Considering each of Brisbin’s
arguments in turn, we conclude that the district court properly applied the obstruction
of justice enhancement.

       First, Brisbin argues that his conduct did not constitute an attempt to obstruct
justice. As the language of § 3C1.1 suggests, “[a]n attempt to intimidate or threaten
a witness, even if unsuccessful, is sufficient to sustain a two-level enhancement for
obstruction of justice.” United States v. Vaca, 289 F.3d 1046, 1049 (8th Cir. 2002)
(citations omitted). “An attempt requires (1) an intent to engage in criminal conduct,
and (2) conduct constituting a substantial step toward the commission of the
substantive offense which strongly corroborates the actor’s criminal intent.” United
States v. Smith, 665 F.3d 951, 955 (8th Cir. 2011) (quoting United States v.
Wahlstrom, 588 F.3d 538, 543 (8th Cir. 2009)). “A substantial step is one that is
‘necessary to the consummation of the crime and . . . of such a nature that a reasonable
observer, viewing it in context could conclude that it was undertaken in accordance
with a design to commit the substantive offense.’” Id. at 956 (quoting Wahlstrom, 588
F.3d at 543).

      In this case, Brisbin’s conduct shows that he attempted to obstruct justice.
Brisbin stated to his mother, “I’m going to get another copy of [the PSR] and I’m
going to send it out and put it all over my f**king Facebook.” Brisbin’s mother
agreed, “Yeah, you can, I can splash it, I’ll flash it all over the f**king computer.”
During the conversation, Brisbin mentioned several government witnesses or
cooperators and expressed his desire to harm them. Given the context of Brisbin’s
statements about putting his PSR on Facebook, it is reasonable to infer that Brisbin
intended to intimidate or threaten people named in the document. Further, Brisbin’s
conduct in recruiting his mother to post his PSR on Facebook constituted a substantial



                                          -5-
step toward obstructing justice. As such, we conclude that the district court did not
err in finding that Brisbin’s conduct constituted an attempt.

      Second, Brisbin contends there was no nexus between his allegedly obstructive
actions and his sentencing because, even if he had been successful in posting his PSR
on Facebook, it would not have made a difference in his sentencing hearing. Section
3C1.1(1) requires that the obstructive conduct occur with “respect to the investigation,
prosecution, or sentencing of the instant offense of conviction.” In United States v.
Galaviz, 687 F.3d 1042 (8th Cir. 2012), after the defendant entered a guilty plea he
conspired to murder a confidential informant. Id. at 1043. We held that the
obstruction of justice enhancement did not apply because the defendant had already
pleaded guilty and the record did not support a finding that the defendant believed the
informant would testify at sentencing. We concluded the defendant “could not have
intended to obstruct justice ‘with respect to the instant offense’ by plotting to kill [the
informant] unless he thought [the informant] was going to testify against him at
sentencing.” Id. We suggested that, although “the enhancement does not apply,” the
defendant could be prosecuted for plotting to kill the informant. Id.

      This case can be distinguished from Galaviz in at least two ways. First,
Brisbin’s obstructive conduct occurred within the PSR-objection period. The draft
PSR was filed on November 26, 2014; Brisbin’s recorded phone call to his mother
occurred on December 3, 2014; and the parties’ objections to the PSR were filed on
December 9 and 10, 2014. Within this context, Brisbin could have believed, but could
not have known what disputed facts the government would be required to prove at
sentencing and whether the witnesses named in the PSR would testify. Second,
because Brisbin’s offense of conviction was a conspiracy, at least some of the people
named in his PSR were necessarily involved in the criminal activity. Because Brisbin
attempted to intimidate his co-conspirators and affect their possible testimony, we
conclude that the district court did not err in finding the requisite nexus.



                                           -6-
       Third, Brisbin argues that, even if he successfully posted his PSR on Facebook,
his conduct would not constitute obstruction of justice. As discussed in Application
Note 4(A), “threatening, intimidating, or otherwise unlawfully influencing a . . .
witness . . . , directly or indirectly, or attempting to do so” triggers the obstruction of
justice sentencing enhancement. U.S.S.G. § 3C1.1 cmt. 4(A). The government
presented testimony to support a conclusion that posting a PSR on Facebook would
likely place the named witnesses in danger, and the district court found that posting
a PSR on Facebook would have the effect of intimidating witnesses who were named
in the document. On review, “[w]e will not second guess [the district court’s]
judgment” as to witness credibility. Wahlstrom, 588 F.3d at 542. Therefore, we
conclude that the district court did not err in finding Brisbin’s conduct constituted
obstruction of justice.

       Finally, Brisbin argues that his note to a cooperating inmate, which the district
court also relied upon in finding that Brisbin obstructed justice, did not constitute
obstruction of justice. As discussed above, Application Note 4(A) encompasses
conduct toward a witness that is threatening or intimidating. A law enforcement
witness at Brisbin’s sentencing hearing concluded the note was a threat intended “to
influence [the cooperating inmate’s] testimony and cooperation with the government.”
We are not certain the note alone would constitute obstructive conduct. The district
court, however, did not err in using this conduct as additional support for applying the
obstruction of justice enhancement.

                                 B. Alternate Sentence

       Brisbin also argues that the district court erred in imposing an alternate sentence
of 420 months. Specifically, Brisbin contends that, assuming the district court erred
in imposing the obstruction of justice enhancement and eliminating the acceptance of
responsibility adjustment, a 420-month sentence would be substantively unreasonable
in light of the 18 U.S.C. § 3553(a) factors. “We review the substantive reasonableness

                                           -7-
of the overall sentence under an abuse of discretion standard.” United States v.
Sayles, 674 F.3d 1069, 1072 (8th Cir. 2012).

       Because we conclude that the district court properly calculated the sentence
pursuant to the guidelines and did not err in applying the obstruction of justice
enhancement, we need not consider whether the alternate proposed sentence was
reasonable. To the extent Brisbin argues the sentence actually imposed was
substantively unreasonable, we also conclude that the district court did not abuse its
discretion. Because the sentence was within the advisory guideline range of 360
months to life in prison, we presume that the sentence was reasonable. United States
v. Avalos, 817 F.3d 597, 602 (8th Cir. 2016). Further, evaluating the § 3553(a)
factors, the district court found that Brisbin’s extensive criminal history and the
seriousness of the instant offense justified a sentence of 420 months. Accordingly, we
hold that the district court did not abuse its discretion.

                                   III. Conclusion

      Based on the foregoing, we affirm the judgment of the district court.
                      ______________________________




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