                NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                           File Name: 11a0751n.06
                                                                                            FILED
                                           No. 09-5482
                                                                                       Nov 07, 2011
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATE OF AMERICA,                      )
                                              )
       Plaintiff-Appellee,                    )
                                              )       ON APPEAL FROM THE UNITED
v.                                            )       STATES DISTRICT COURT FOR
                                              )       THE EASTERN DISTRICT OF
JOSHUA TALLEY,                                )       TENNESSEE
                                              )
       Defendant-Appellant.                   )


BEFORE: KENNEDY, GIBBONS, and KETHLEDGE, Circuit Judges.

       CORNELIA G. KENNEDY, Circuit Judge. Joshua Talley pleaded guilty to distribution

of five grams or more of cocaine base in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(B). He now

appeals his 300-month sentence as procedurally unreasonable because the district court declined to

decrease his Guideline offense level for accepting responsibility. For the reasons that follow, we

AFFIRM.

                     FACTUAL AND PROCEDURAL BACKGROUND

       In 2007, local Hamilton County, Tennessee law enforcement officials and the Federal Bureau

of Investigation conducted an investigation into the drug trafficking activity of Joshua Talley. On

May 13, 2008, a grand jury sitting in the Eastern District of Tennessee filed a six-count indictment

charging Talley with distribution of five grams or more of cocaine base in violation of 21 U.S.C. §§

841 (a)(1), (b)(1)(B). On May 14, 2008, Talley was arrested. On July 24, 2008, he pleaded guilty

to one count of distribution of five grams or more of cocaine base pursuant to the terms of a written
No. 09-5482
United States v. Talley

plea agreement in which the government agreed, in return, to dismiss the remaining counts at

sentencing.

       After entering his plea and while incarcerated, Talley wrote a letter to an acquaintance and

fellow drug dealer named Edgar Williams. In the relevant portions, the letter reads, “KEN MOORE

is who wore the wire on me. He use to be with Big Danny, and also Mist, (wolf son). He suppose

to be ‘Gangster’ though. Beat him when you see for me. Lil T suppose to broke in my crib.” The

letter goes on to say, “[j]ust remember Ken Moore is a snitch.” This letter was intercepted before

it could reach Williams.

       Because of this letter, the probation officer recommended in her Pre-Sentence Report (PSR)

that a two-level obstruction-of-justice enhancement be added to Talley’s offense level. Additionally,

the probation officer recommended that the district court not decrease Talley’s offense level for

acceptance of responsibility because it is unusual to do so when the defendant has obstructed justice.

Ultimately, the PSR recommended a total offense level of 37 because the probation officer found

the defendant to be a career offender.         Talley, through counsel, objected to the PSR’s

recommendation that the letter should be considered an obstruction of justice. He also contended

that he deserved a reduction for his acceptance of responsibility.

       At his sentencing hearing, Talley argued his objections to the PSR. He took the stand to

explain the meaning of the letter and said that the phrase “[b]eat him when you see for me” referred

to the subject of the next sentence (Lil T). He also explained that the exclusive purpose for

mentioning Moore was to warn Williams that Moore might “wear the wire” on him as well. The

district court did not find Talley’s testimony regarding who should be beaten to be credible and

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United States v. Talley

concluded that Talley’s explanation did not make sense given the language and punctuation in the

letter. Furthermore, due to the care Talley took to warn Williams that Moore was the person who

wore the wire, the court reasoned that Williams was also in the drug-trafficking business. From this

understanding, the court found that bringing Moore’s status as a confidential informant to the

attention of Williams increased the danger that physical harm would befall Moore. Based on these

facts, the court determined that the letter to Williams threatened Moore. Upon making this

conclusion, the court found Talley obstructed justice. This finding led the court to conclude that

Talley had not accepted responsibility for his actions because he obstructed justice.

       Subsequently, the court heard Talley’s plea for leniency with respect to the career offender

enhancement. The court found Talley to be a career offender and calculated his criminal history,

offense level, and sentence range accordingly. Despite applying this provision, the court was, to

some extent, swayed by his plea, and it determined that a below-Guidelines term of 25 years was

appropriate. Talley timely appealed.

                                           ANALYSIS

       Talley argues on appeal that his sentence is procedurally unreasonable because the district

court improperly denied him an offense-level reduction for his acceptance of responsibility. We

review the district court’s sentencing determinations for reasonableness, using a deferential

abuse-of-discretion standard. United States v. Martinez, 588 F.3d 301, 324 (6th Cir. 2009) (citing

Gall v. United States, 552 U.S. 38, 56 (2007), Rita v. United States, 551 U.S. 338, 361 (2007), and

United States v. Booker, 543 U.S. 220, 261 (2005)).           The procedural component of the

reasonableness equation requires that we “‘ensure that the district court committed no significant

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United States v. Talley

procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting

a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.’”

Id. (quoting Gall, 552 U.S. at 51). The district court’s decision “should be sufficiently detailed to

reflect the considerations listed in § 3553(a) to permit meaningful appellate review” and “must also

provide some indication that the court considered the defendant’s arguments in favor of a lower

sentence and the basis for rejecting such arguments.” Id. at 325 (citations and internal quotation

marks omitted).

I. Career Offender

       Talley does not appeal the district court’s determination that he is a career offender. Once

deemed applicable, the career offender enhancement determines the criminal history category and,

if its table provides an offense level greater than would otherwise be applicable, the offense level.

U.S.S.G. § 4B1.1(b). In light of this provision, the district court determined Talley’s criminal history

to be Category VI and his offense level to be 37. U.S.S.G. § 4B1.1(b) (requiring an offense-level

of 37 if the offense’s statutory maximum is life), and 21 U.S.C. § 841(b)(1)(B) (2009) (providing

a statutory maximum of life). Because Talley does not challenge the application of the career-

offender enhancement, his appeal is limited to the district court’s acceptance of responsibility

determination.

II. Acceptance of Responsibility

       Talley makes three challenges to the district court’s refusal to apply an acceptance-of-

responsibility reduction to his offense level. U.S.S.G. § 3E1.1(a) permits a district court to reduce

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United States v. Talley

a defendant’s sentence if the defendant “clearly demonstrates acceptance of responsibility for his

offense.” It is the defendant’s burden to prove, by a preponderance of the evidence, that the

reduction is justified. United States v. Surratt, 87 F.3d 814, 821 (6th Cir. 1996). “A defendant who

pleads guilty is not entitled to a reduction as a matter of right.” Id. As the commentary to § 3E1.1

makes clear, although

       [e]ntry of a plea of guilty prior to the commencement of trial combined with
       truthfully admitting the conduct comprising the offense of conviction, and truthfully
       admitting or not falsely denying any additional relevant conduct for which he is
       accountable under § 1B1.3 . . . will constitute significant evidence of acceptance of
       responsibility. . . . However, this evidence may be outweighed by conduct of the
       defendant that is inconsistent with such acceptance of responsibility.

U.S.S.G. § 3E1.1 cmt. n.3. Additionally, Application Note 4 provides that conduct supporting an

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

responsibility for his criminal conduct. There may, however, be extraordinary cases in which

adjustments under both §§ 3C1.1 and 3E1.1 may apply.” U.S.S.G. § 3E1.1 cmt. n.4. Of Talley’s

challenges, the first focuses on whether his conduct properly falls within Application Note 4 and the

next two focus on the aforementioned extraordinary case exception in that note.

       A. Obstruction of Justice

       Talley concedes that the district court refused to provide an acceptance-of-responsibility

reduction because it found that he obstructed justice. Properly characterized, Talley’s first argument

is that the district court erred when it denied him this reduction because it erred in finding an

obstruction of justice. Talley’s objection to the obstruction determination calls into question both




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United States v. Talley

the district court’s factual findings and its application of the law to those facts. The Guidelines

define obstruction-of-justice as follows:

        If (A) 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 (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.

U.S.S.G. § 3C1.1.

        Application Note 4 to U.S.S.G. § 3C1.1 provides a non-exhaustive list of the types of conduct

to which the enhancement applies. The note explains that the enhancement is appropriate when a

court finds conduct which constitutes “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 burden is on the government to prove obstruction of justice by a preponderance

of the evidence. United States v. Dunham, 295 F.3d 605, 609 (6th Cir. 2002) (citations omitted).

        Our method of reviewing a district court’s obstruction determination begins by considering

if the district court’s factual findings were clearly erroneous. United States v. Vasquez, 560 F.3d

461, 473 (6th Cir. 2009). “A factual finding will only be clearly erroneous when, although there may

be evidence to support it, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” United States v. Galaviz, 645 F.3d 347, 352 (6th

Cir. 2011) (citation and internal quotation marks omitted). Next, we consider the district court’s

application of the Guidelines to the facts and, in this consideration, we give the district court’s

determination due deference. See Buford v. United States, 532 U.S. 59, 66 (2001) (explaining that

the fact-bound nature of a sentencing decision, the comparative expertise of the District Court in

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United States v. Talley

making this determination, and the limited value of precedent in this situation indicates that a

deferential standard of review is appropriate).

        Talley challenges the district court’s factual finding that the letter Talley sent to Williams was

a threat against Moore. The district court made this finding for several reasons. First, the plain

language and punctuation of the letter clearly supported this as a more reasonable and correct reading

of the letter. In particular, the district court focused on the placement of a period after the phrase

“[b]eat him when you see for me” and before the introduction of a new subject. The district court

rejected Talley’s proffered alternative explanation that the phrase was directed toward Lil T because

the period was placed before the introduction of Lil T into the letter. Second, the district court found

that Talley had motivation to threaten Moore. Talley had a logical, though unlawful, interest in

wanting Moore punished for acting as a government informant. In making this determination, the

district court did not credit Talley’s testimony to the contrary. Finally, the letter called to a drug

dealer’s attention the identity of a government informant. The act of telling a drug dealer the identity

of a government informant also weighed in favor of finding that Talley intended the letter to be a

threat. After reviewing the entire record, we are not left with the definite or firm conviction that the

district court made a mistake in its factual findings.

        Additionally, Talley argues that because he sent the letter to a third party and it was not

received by the witness, it could not have been a threat within the meaning of the Guidelines. This

argument questions the district court’s determination that the facts justify an obstruction-of-justice

enhancement. Because this determination applies the law to the facts, it will be reviewed with

appropriate deference. See Buford, 532 U.S. at 66 (explaining the requirement of deference due to

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United States v. Talley

a district court’s application of the Guidelines to the facts). This circuit has yet to consider whether

making threatening statements to a third party can constitute a threat within the meaning of U.S.S.G.

§ 3C1.1 cmt. n.4. Talley suggests that it should not, a position similar to that taken by the Fourth

Circuit. United States v. Brooks, 957 F.2d 1138, 1149-50 (4th Cir. 1992).

        We decline to adopt this logic. Brooks, which states that at a minimum § 3C1.1 requires a

direct threat to a witness or a threat issued in circumstances in which the witness will likely learn of

it, is an outlier among the circuits that have considered the issue. See United States v. Searcy, 316

F.3d 550, 552-53 (5th Cir. 2002) (per curiam) (collecting cases). We find the reasoning of the

majority of our sister circuits more persuasive. For example, the Ninth Circuit addressed this issue

in United States v. Jackson, 974 F.2d 104 (9th Cir. 1992). In that case, the defendant wrote in large

letters “The ‘Rat’ Fred Pittman,” and below that wrote “‘Snitch’” on a copy of the cooperation

agreement given to him by his attorney. Id. at 105. The defendant had this modified version of the

agreement delivered to his sister, a minister, and to Pittman’s mother. Id. Copies of the document

were then circulated at a Portland nightclub. Id . The Ninth Circuit concluded that this conduct was

sufficient to uphold the district court’s obstruction-of-justice sentencing enhancement. Id. at 106.

The court explained, “[w]here a defendant’s statements can be reasonably construed as a threat, even

if they are not made directly to the threatened person, the defendant has obstructed justice.” Id.

(citing United States v. Shoulberg, 895 F.2d 882, 885-86 (2d Cir. 1990)). This reasoning better

reflects the plain language of Application Note 4(A) to U.S.S.G. § 3C1.1 that provides for an

enhancement when defendants attempt to indirectly threaten a witness. See also Stinson v. United

States, 508 U.S. 36, 38 (1993) (holding that commentary in the Guidelines Manual that explains a

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United States v. Talley

guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with

that guideline).

        Because we are persuaded by the above reasoning, we agree with the district court and find

that statements, even when made to a third party, which are appropriately determined to be

threatening can, and in this case do, constitute obstruction of justice. Consequently, the district court

did not err in finding that Talley obstructed justice.

        B. Application Note 4 to U.S.S.G. § 3E1.1

        Talley’s next two arguments focus on Application Note 4 to U.S.S.G. § 3E1.1. Talley’s

second argument is that his case is analogous to the extraordinary cases which applied adjustments

for both §§ 3C1.1 and 3E1.1. A district court’s determination that a case is “extraordinary” in this

manner is a question of law that we review de novo. United States v. Gregory, 315 F.3d 637, 640

(6th Cir. 2003). “Sixth Circuit law interpreting this provision has consistently granted district courts

great leeway when making this determination.” Id. (citations omitted). In evaluating this type of

situation, we consider the defendant’s truthful admission of the charged offense, the defendant’s

voluntary assistance to the authorities in resolving the offense, and the timeliness of the defendant’s

conduct in affirmatively accepting responsibility for his actions. United States v. Jeross, 521 F.3d

562, 582 (6th Cir. 2008) (citing Gregory, 315 F.3d at 640-41), cert. denied, Jeross v. United States,

129 S. Ct. 1311 (2009). Our evaluation often focuses on when the defendant’s truthful admission

occurred relative to other events in the trial. See id. (finding that Jeross engaged in obstructive

conduct after his guilty plea); see also United States v. Angel, 355 F.3d 462, 478 (6th Cir. 2004)

(noting the significance of the time when the plea occurred relative to when the obstructive conduct

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United States v. Talley

occurred). The defendant has the burden of proving the extraordinary nature of his or her case.

Angel, 355 F.3d at 477.

        Even considering the issue de novo, we conclude that Talley’s conduct does not satisfy the

exacting standard set forth in Gregory, and, indeed, this case is easily distinguishable from Gregory.

First, Gregory’s obstructive conduct predated his indictment and plea agreement. Gregory, 315 F.3d

at 640-41. Talley cannot cite any similar finding in this case. Second, Gregory aided the police, id.,

whereas Talley attempted to aid another criminal. We recognize the significant leeway granted to

the district court, and find it did not err in its determination that Talley did not accept responsibility.

        Talley’s final argument is that the district court erred by failing to consider the exception.

This court has stated that the “district court's decision to deny . . . an acceptance of responsibility

reduction is entitled to great deference on review. We review for clear error.” United States v.

Genschow, 645 F.3d 803, 813 (6th Cir. 2011) (citations omitted). For the reasons explained above,

we do not consider this to be an extraordinary case. Therefore, the district court did not err in

refusing to grant an acceptance-of-responsibility reduction. To the extent that the district court failed

to consider the extraordinary exception, the error was harmless because this is an ordinary case.

                                            CONCLUSION

        For the foregoing reasons, the decision of the district court is affirmed.




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