     Case: 18-20169       Document: 00515191692        Page: 1   Date Filed: 11/07/2019




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                      No. 18-20169                    United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                      November 7, 2019
UNITED STATES OF AMERICA,
                                                                        Lyle W. Cayce
               Plaintiff - Appellee                                          Clerk


v.

SHONDA RENEE STUBBLEFIELD, also known as Shonda McGown,

               Defendant - Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas


Before JONES, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:
      Appealing from one aspect of the sentence imposed on her after
conviction for mail fraud, wire fraud, theft of public money, aggravated identity
theft, and unlawful monetary transactions, Shonda Stubblefield contends that
the district court erred in enhancing her sentence by two levels for obstruction
of justice under U.S.S.G. § 3C1.1. We find no clear error of fact nor error of law
and AFFIRM. 1
      From 2012 to 2014, Stubblefield requested and received almost $126,000
from the Houston-Galveston Area Council (H-GAC). H-GAC was distributing
federal grant funds received from the Texas Department of Transportation



      1   Judge Haynes concurs in the judgment only.
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                                   No. 18-20169
(TDOT), and Stubblefield claimed to run a telework program eligible to receive
such funds. In fact, she was running a fraudulent scheme, submitting false
business information to gain the funds.
      In late 2014, one of Stubblefield’s submissions aroused suspicion in a
TDOT reviewer. At TDOT’s request, H-GAC began an audit. An H-GAC
auditor visited Stubblefield’s office and presented a written request for
information, including for personnel files.        Stubblefield did not produce
personnel files, and documents that she did produce—including bank
statements and a client list—were false. H-GAC cancelled the grant, and
TDOT referred the case to the federal government, which launched an
investigation. An indictment, trial, and verdict of guilt followed.
      At sentencing, the probation officer who prepared the presentence report
(PSR) calculated a total offense level of 24, including a two-level enhancement
for obstruction of justice under U.S.S.G. § 3C1.1.           As the basis of this
enhancement, the PSR identified that Stubblefield provided false documents
to the “official investigation” into her fraud. Stubblefield objected that H-
GAC’s audit was not part of the “official investigation.” The district court
overruled Stubblefield’s objection and sentenced her to seventy-two months in
prison. Stubblefield timely appealed.
      This court reviews a “district court’s findings of fact for clear error and
its interpretation and application of the [Sentencing] Guidelines de novo.”
United States v. Gharbi, 510 F.3d 550, 554 (5th Cir. 2007). “Where a factual
finding is plausible in light of the record as a whole, it is not clearly erroneous.”
United States v. Adam, 296 F.3d 327, 334 (5th Cir. 2002).
      The question presented is whether the district court’s factual findings
permit a sentence enhancement under Section 3C1.1. That section states:
      If (1) the defendant willfully obstructed or impeded, or attempted
      to obstruct or impede, the administration of justice with respect to

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                                      No. 18-20169
       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, increase the offense level by 2 levels.

       Stubblefield denies that she willfully acted to obstruct or impede the
administration of justice. 2 She does not deny that she obstructed an H-GAC
audit starting in late 2014. She contends, though, that H-GAC was not a
governmental entity and that its audit was not then connected to any
governmental investigation already begun. Thus, she argues, the obstruction-
of-justice enhancement is inapplicable.
       We disagree. We need not parse whether H-GAC, which conducted the
audit, is itself a governmental entity, nor whether a state or federal
investigation had begun.         Under Section 3C1.1, as amended in 2006, the
relevant question is whether the defendant willfully “attempted to obstruct
justice with respect to the investigation, prosecution, or sentencing of the
instant offense of conviction.” United States v. Alexander, 602 F.3d 639, 642
n. 3 (5th Cir. 2010) (quotation marks omitted). A district court may apply
Section 3C1.1 to a defendant who (1) believed that there was or would be a
governmental investigation and (2) acted to obstruct or impede that
investigation. See United States v. Lister, 53 F.3d 66, 71 (5th Cir. 1995) (per
curiam); United States v. Brooks, 681 F.3d 678, 716 n. 41, 717 (5th Cir. 2012).
In this case, the district court may have plausibly inferred from the factual
record that Stubblefield met those conditions. Thus, the district court did not
clearly err and did not improperly apply Section 3C1.1.
       In United States v. Lister, this court interpreted the pre-2006 text of
Section 3C1.1 to “apply only to those cases where misconduct occurs with the



       2 Stubblefield does not dispute that she engaged in obstructive conduct related to her
offense of conviction.
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                                 No. 18-20169
defendant’s knowledge of an investigation, or at least with the defendant’s
correct belief that an investigation is probably underway.” 53 F.3d at 71. In
2006, however, the United States Sentencing Commission amended
Section 3C1.1. Alexander, 602 F.3d at 642 n. 3. Since then, this court has
interpreted the section to “allow[] consideration of pre-investigation conduct.”
Brooks, 681 F.3d at 716 n. 41.         Thus, under this court’s precedent,
Section 3C1.1 applies only if misconduct occurs with the defendant’s correct
belief that a governmental investigation is probably underway or will probably
be underway. See id. at 716 n. 41, 717.
      In this case, Stubblefield does not deny that misconduct occurred, and it
is at least plausible that Stubblefield believed that a governmental
investigation was probably occurring or would probably occur.         In fact, a
plausible case could be made from the record that Stubblefield obstructed the
H-GAC audit while believing that both the state government and the federal
government were investigating, or would investigate, her unlawful activities.
      First, the record supports a finding that Stubblefield expected a state
investigation.   To start, Stubblefield signed three agreements to act “in
accordance with state and federal laws and regulations,” and such law at least
suggests that H-GAC is part of the state government. Tex. Loc. Gov’t Code,
TEX. STAT. tit. 12, § 391.003 (1987); Byrdson Servs. v. S. E. Texas Reg’l
Planning Comm’n, 516 S.W.3d 483, 484 (Tex. 2016); Robinson v. Houston-
Galveston Area Council, 566 F. Supp. 370, 371 (S.D. Tex. 1983); BCCA Appeal
Grp. v. EPA, 355 F.3d 817, 842 n.35 (5th Cir. 2003). Further, those same three
signed agreements note the oversight of the State of Texas, and the last such
agreement, as well as various records of payments made to H-GAC, includes
the abbreviation “TDOT.” Also, at least once, TDOT rejected Stubblefield’s in-
kind donation, information she likely received before she donated a substitute


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                                     No. 18-20169
in-kind donation. 3 From this evidence, a district court could plausibly find
that, when Stubblefield obstructed the H-GAC audit, she believed that she was
obstructing a current or future state investigation.
      Additional evidence points toward the possibility of a federal
investigation.     Stubblefield submitted two applications which describe
“(H-GAC’s) Telework Incentive Program” as a “federal grant”; she signed three
contracts with H-GAC that awarded her a “federal grant”; and she certified to
H-GAC three times that she had secured local matches to “draw down available
federal funds.” From this evidence, a court could plausibly conclude that, when
Stubblefield obstructed the H-GAC audit, she believed that she was
obstructing a current or future federal investigation.
      The standard for affirming a district court’s factual finding is low:
“Where a factual finding is plausible in light of the record as a whole, it is not
clearly erroneous.” Adam, 296 F.3d at 334. The requisite factual finding in
this case is that Stubblefield believed that she was obstructing a governmental
investigation that was in progress or would be coming about. In light of the
whole record, that factual finding is plausible, and the district court did not
clearly err in making it.
      The judgment is AFFIRMED.




      3  The federal program required a grant recipient to supplement the grants up to a
certain percentage by demonstrating their receipt of donations approved by the regulations.
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