                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                 February 26, 2009
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 08-3169
          v.                                             (D. of Kan.)
 ZACHARIAH J. TURNER,                         (D.C. No. 07-CR-10219-01-MLB)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and TYMKOVICH, Circuit Judges. **


      Zachariah J. Turner pleaded guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). The district court subsequently

sentenced Turner to a 110-month prison term.

      On appeal, Turner argues that the district court erred in its sentencing

determination under the United States Sentencing Guidelines when it enhanced



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
his sentence for obstruction of justice. Exercising jurisdiction pursuant to 18

U.S.C. § 3742 and 28 U.S.C. § 1291, we find the district court did not err in

making its sentencing determination. We therefore affirm.

                                  I. Background

      Wichita police officers arrested Turner and his colleague Jeffrey Heider

during an investigation of a drive-by shooting. The next day, police officers

obtained a search warrant for a trailer home where they suspected Turner, Heider,

and a woman named Tabitha Decker lived. During a search of the trailer, the

officers found what appeared to be marijuana and methamphetamine, several

rounds of live ammunition, and a .22 caliber rifle. They also found Turner’s

driver’s license and other items suggesting that Turner resided in the trailer home.

The rifle was located in the closet of a bedroom where Turner apparently slept

and stored his personal items. Turner had previously been convicted and

incarcerated for burglary and distribution of cocaine.

      Turner was indicted for being a felon in possession of a firearm and

initially pleaded not guilty to the offense. While in custody, Turner made phone

calls to Decker, in which Turner asked whether Decker “had his back” regarding

the rifle the police found in the trailer home. R. Vol. III at 6. The calls between

Turner and Decker were intercepted and recorded as a matter of course by prison

authorities. After listening to the taped calls, a detective with the Sedgwick

County Sheriff’s Department interviewed Decker, suspecting that Turner might

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have been encouraging Decker to lie. During the detective’s first interview with

Decker, she claimed the rifle the police found in the trailer belonged to her

boyfriend and she had placed the rifle in Turner’s bedroom closet without

Turner’s knowledge.

      After the first interview, however, Decker contacted the United States

Marshals Service and told them she had received death threats from Heider. The

Marshals relayed this information to investigators, and a detective again

interviewed Decker. Decker told him that she had concocted her original story to

protect Turner. She also gave him numerous undated letters she had received

from Turner and Heider. In one letter, Turner stated, “we got to get the story

down – for trial.” R. Supp. Vol. I, Ex. 2. In another, he wrote:

      If were [sic] going to trial. Tabatha Decker! Im [sic] yelling your
      name. . . . I need you sober . . . . I need you to reherse [sic] your
      lines everyday. I need to charm the people. I repet [sic]. There to
      your knowledge was no dope in the house. Im [sic] trying to salvage
      what I can. Your ex beat you I don’t know but give me your hole
      [sic] story line. . . . There was nothing in the closet that belong [sic]
      to me.

R. Supp. Vol. I, Ex. 3. Later in the same letter, Turner wrote, “if they back you

into a corner the gun is mine OK.” Id. Decker told the detective that in her

original story, her explanation for possessing the rifle was that her current

boyfriend gave it to her so she could protect herself from her ex-boyfriend, who

was incarcerated but might find and attack her after he was released from prison.




                                          -3-
      Based on these events, the government filed a superseding indictment

charging Turner with both being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1) and obstruction of justice in violation of 18 U.S.C.

§ 1512(b)(1). Turner pleaded guilty to being a felon in possession of a firearm,

and the government dismissed the obstruction of justice charge. Turner’s

Presentence Investigation Report recommended that Turner receive a two-point

enhancement for obstruction of justice.

      At Turner’s sentencing hearing, the government called the detective to

testify regarding Turner’s alleged obstruction of justice and introduced into

evidence Turner’s letters to Decker. The district court found that “the evidence is

sufficient to satisfy the preponderance of the evidence standard that this

Defendant was attempting to influence, wrongfully influence, the testimony of

this witness Decker with respect to . . . whether he had possession of this

particular .22 rifle.” R. Vol. III at 30. The court applied a two-level sentencing

enhancement to account for this conduct, and sentenced Turner to 110 months in

prison.

                                    II. Analysis

      Turner’s sole argument on appeal is that the sentencing court erred when it

applied the Guidelines to impose a two-point enhancement for obstruction of

justice. We reject this argument and affirm Turner’s sentence.




                                          -4-
      In assessing the sentencing court’s application of the Guidelines, we review

factual findings for clear error and legal conclusions de novo. United States v.

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). A district court’s conclusion that a

defendant obstructed justice under the Guidelines is a factual finding subject to

clear error review. See United States v. Heckard, 238 F.3d 1222, 1232 (10th Cir.

2001). To be clearly erroneous, the sentencing court’s findings must be

implausible or impermissible in light of the entire record on appeal. United

States v. Zapata, 546 F.3d 1179, 1192 (10th Cir. 2008).

      The Guidelines’ obstruction of justice enhancement applies 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 . . . .

USSG § 3C1.1 (2006). Under the Guidelines, “[o]bstructive conduct can vary

widely in nature, degree of planning, and seriousness.” Id. cmt. 3. Obstructive

conduct includes persuading a potential witness to lie. See Heckard, 238 F.3d at

1232–33; United States v. Farnsworth, 92 F.3d 1001, 1011 (10th Cir. 1996); see

also USSG § 3C1.1 cmt. 4(b) (obstructive conduct includes “attempting to suborn

perjury”).

      Turner claims the detective’s testimony and Turner’s letters did not show

by a preponderance of the evidence that a Guidelines enhancement was warranted.


                                         -5-
Turner argues that no inferences could be drawn from the evidence to support the

enhancement, and that the evidence only shows Turner encouraged Decker to “tell

the truth if she were asked to do so” and be “ready for trial.” Aplt. Br. 10–11.

On appeal, however, we must “view the evidence and inferences therefrom in the

light most favorable to the district court’s determination.” United States v.

Mozee, 405 F.3d 1082, 1088 (10th Cir. 2005). Viewed in this way, the evidence

is more than sufficient to support the district court’s Guidelines enhancement.

      First of all, the detective testified at the sentencing hearing that Decker

concocted a false story to protect Turner and then later recanted this story.

Turner’s phone conversations and letters show that he wanted Decker to adhere to

her false story and testify favorably on his behalf. The letters also show that

Turner was aware of specific elements of the false story, including Decker’s

supposed justification for possessing the rifle, which was to protect herself from

her violent ex-boyfriend. Finally, one of Turner’s letters informed Decker that

she should tell the truth and admit that the gun was Turner’s only if she was

“cornered.” Viewed in a light most favorable to the district court, the detective’s

testimony, coupled with Turner’s letters to Decker, shows that Turner encouraged

Decker to lie on the witness stand at trial.

      Because this conduct plainly fits the definition of “obstructive conduct”

under USSG § 3C1.1, we discern no error in the district court’s findings.




                                          -6-
                          III. Conclusion

For the foregoing reasons, we affirm Turner’s sentence.

                               Entered for the Court

                               Timothy M. Tymkovich
                               Circuit Judge




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