               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 11a0735n.06

                                      No. 10-5198                                     FILED
                                                                                   Oct 27, 2011
                        UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                    )
                                             )
       Plaintiff-Appellee,                   )
                                             )
v.                                           )   ON APPEAL FROM THE UNITED
                                             )   STATES DISTRICT COURT FOR THE
CHRISTINA ROSE DENHAM,                       )   EASTERN DISTRICT OF KENTUCKY
                                             )
       Defendant-Appellant.                  )



       Before: DAUGHTREY, COOK, and KETHLEDGE, Circuit Judges.


       PER CURIAM. In this sentencing appeal, defendant Christina Denham challenges

the 43-month sentence imposed by the district court following her entry of an Alford plea

to a charge of “conspiracy to knowingly threaten to cause bodily injury to another person

with the intent to retaliate against that person for providing information related to the

possible commission of a federal offense to a law enforcement officer.” Denham contends

that her sentence was both procedurally and substantively unreasonable. For the reasons

set out below, we disagree and, therefore, affirm the district court’s judgment.


                    FACTUAL AND PROCEDURAL BACKGROUND


       Working in conjunction with federal agents, Kentucky State Police officers arrested

one Judy Wilder on drug-trafficking charges, based on information they received from a
No. 10-5198
United States v. Denham

confidential informant. That same day, the defendant, Wilder’s niece visited Wilder in jail

and, in her own words, “saw [that] we couldn’t get her out, and she was so scared. She

was coming off pills herself and she was crying and she was begging us to get her, and we

couldn’t, and I just – I was mad.” Rather than channeling that anger in an appropriate

manner intended to assist her aunt, however, Denham took possession of her aunt’s cell

phone and managed to identify the confidential informant from his telephone number. She

and an accomplice then embarked on a five-day spree of telephoning the informant and

threatening both him and his family.


       The first such message left by the defendant on the informant’s voice mail provides

the flavor of each of the later messages as well. In that initial call, Denham exclaims:


       You know what happens to rats? You think you’re safe? Huh? Do you
       really think you’re safe? You’ll be found. Judy is fifty-five years fucking old,
       do you know that? You mother fuckers are dead. You’re dead. Do you
       understand me? You’re dead. Do you hear that? You’re fucking dead. And
       you won’t know where it’s coming from. Next thing you know you’ll be
       fucking laying with your God-damn hands cut off.


       As a result of these calls, a federal grand jury indicted Denham for conspiring to

threaten another person with bodily injury in retaliation for providing information to a law

enforcement officer about a possible federal offense. See 18 U.S.C. §§ 1513(f) and

1513(b)(2). Denham expressed remorse for her actions, did not contest the illegality of the

acts she undertook, and attempted to plead guilty to the charged offense. The district court

initially refused to accept the plea, however, because Denham claimed to have no


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United States v. Denham

knowledge that her aunt could be charged with a federal drug-trafficking offense, and

because the court believed that such knowledge was a required element of the offense.

Later, the district court satisfied itself that the prosecution could indeed establish that the

defendant was aware of the involvement of federal agents in the arrest of Denham’s aunt.

Consequently, the court accepted Denham’s plea offered pursuant to the provisions of

North Carolina v. Alford, 400 U.S. 25 (1970). Under that plea, the defendant did not

actually admit guilt but agreed that the prosecution could establish the required elements

of the offense.


       At sentencing, the district court enhanced Denham’s base offense level by eight

levels in light of that court’s finding that the threats communicated to the confidential

informant were made “in order to obstruct the administration of justice.” See USSG

§ 2J1.2(b)(1)(B). Given the defendant’s criminal history, that enhancement, in combination

with Denham’s acceptance of responsibility, yielded a guideline sentencing range of 37-46

months in prison. The district court noted that if Denham “were an ordinary defendant, the

Court would think a sentence in the range of about 80 to 120 months would be appropriate

in this case.” Considering the defendant’s history and characteristics, however, the district

judge determined that a sentence within the relevant guideline range was justified and thus

imposed a prison sentence of 43 months. Denham now appeals from that determination,

contending both that the eight-level enhancement of her base offense level was improper

and that the 43-month sentence was substantively unreasonable.



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No. 10-5198
United States v. Denham

                                      DISCUSSION


       On appeal, we review a defendant’s sentence for reasonableness, using the

deferential abuse-of-discretion standard. See United States v. Pearce, 531 F.3d 374, 384

(6th Cir. 2008). Such review “has both a procedural and a substantive component.” United

States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008) (citing Gall v. United States, 552

U.S. 38, 51 (2007)).     Procedural errors include “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 – including an explanation for any

deviation from the Guidelines range.” Gall, 552 U.S. at 51. A review for substantive

reasonableness “will, of course, take into account the totality of the circumstances,

including the extent of any variance from the Guidelines range.” Id. Furthermore, “we may

apply a rebuttable presumption of reasonableness to sentences within the Guidelines,”

Pearce, 531 F.3d at 384, but may not reverse a district court’s sentencing determination

simply because we “might reasonably have concluded that a different sentence was

appropriate.” Gall, 552 U.S. at 51.


       In her procedural challenge to her sentence, Denham contends that the threatening

phone calls made to the confidential informant were simply manifestations of anger and

revenge and were not made “in order to obstruct the administration of justice.” She thus

argues that the evidence in the record does not justify an eight-level increase in the


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United States v. Denham

defendant’s base offense level under § 2J1.2(b)(1)(B) of the United States Sentencing

Guidelines.1 The background to the commentary on that guideline section recognizes,

however, that “[n]umerous offenses of varying seriousness may constitute obstruction of

justice,” including transmission of a “mere threat” “to influence testimony.” USSG § 2J1.2,

comment. (backg’d).


       In examining this claim, we review the district court’s findings of fact for clear error.

See United States v. Thompson, 586 F.3d 1035, 1038 (6th Cir. 2009). Thus, we may

reverse such a factual determination only if we are “left with the definite and firm conviction

that a mistake has been committed.” United States v. Wheaton, 517 F.3d 350, 367 (6th

Cir. 2008). “Where there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S.

564, 574 (1985) (citations omitted). The determination of whether specific facts actually

constitute an obstruction of justice is, however, a mixed question of fact and law that we

review de novo. See United States v. Vasquez, 560 F.3d 461, 473 (6th Cir.), cert. denied,

130 S.Ct. 476 (2011) (citing United States v. Roberts, 243 F.3d 235, 237 (6th Cir. 2001)

(per curiam)).




       1
        Guideline § 2J1.2, applicable to violations of 18 U.S.C. § 1513, designates a base
offense level of 14, see USSG § 2J1.2(a), and further provides for an increase of eight
additional levels “[i]f the offense involved causing or threatening to cause physical injury
to a person, or property damage, in order to obstruct the administration of justice.” USSG
§ 2J1.2(b)(1)(B).

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No. 10-5198
United States v. Denham

       In this case, the district court did not err in concluding that the threatening telephone

calls obstructed the administration of justice. The informant would have been an integral

government witness had the case against Denham’s aunt gone to trial. Thus, the threats

to kill or maim the informant and his family would naturally have caused him to reflect on

the benefits and costs of providing testimony against Judy Wilder and would obviously

have given him pause to reconsider before doing so.


       Moreover, the commentary to guideline § 3C1.1, which deals with “obstructing or

impeding the administration of justice,” denominates “threatening, intimidating, or otherwise

unlawfully influencing a . . . witness, . . . or attempting to do so” as one example of the type

of conduct to which that adjustment applies. See USSG § 3C1.1, comment. (n. 4(A)).

Admittedly, § 3C1.1 reaches obstructive conduct only with respect to the particular offense

of conviction, while § 2J1.2(b)(1)(B) concerns itself with conduct intended to obstruct the

conduct of other proceedings. Nevertheless, § 3C1.1's interpretation of the idea of

“obstructing the administration of justice” provides strong support for the conclusion that

Denham’s threats to the confidential informant should likewise be considered an attempt

to obstruct the administration of justice under § 2J1.2(b)(1)(B) of the guidelines. Given the

certainty that the informant would have been a witness against Judy Wilder had her case

gone to trial, the district court did not err in concluding that the defendant’s phone calls to

him “threatened] to cause physical injury to a person . . . in order to obstruct the

administration of justice.” The sentence imposed upon Denham thus was not procedurally

unreasonable.

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United States v. Denham

       The defendant also alleges that the 43-month sentence she received is

substantively unreasonable in light of the mitigating factors that she presented to the

district court. Specifically, Denham argues that her actions were caused, in part, by pre-

menstrual dysphoric disorder and by her addition to drugs. She also highlights the facts

that she has completed some college course work, that she cares for two disabled

members of her family, and that she has been gainfully employed. The district judge,

however, clearly considered those factors and brought them to bear on his decision not to

sentence Denham to 80-to-120 months in prison, a sentence he felt would be appropriate

if Denham “were an ordinary defendant.” Instead, the judge sentenced Denham within the

applicable guideline range “based on [her] history and characteristics . . .[,] the U.S. desire

to promote respect for the law, provide just punishment for the offense, and reflect the

seriousness of the offense.”      Such a sentence is presumed to be reasonable, and

Denham has offered no evidence to rebut that presumption.


                                       CONCLUSION


       The record on appeal establishes that the 43-month sentence imposed upon the

defendant was both procedurally and substantively reasonable. We therefore AFFIRM

the judgment of the district court.




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