UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4561

OMAR YUSUF DESANGES,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Samuel G. Wilson, Chief District Judge.
(CR-95-46)

Argued: December 1, 1997

Decided: January 27, 1998

Before WIDENER and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: J. Lloyd Snook, III, SNOOK & HAUGHEY, P.C., Char-
lottesville, Virginia, for Appellant. Anthony Paul Giorno, OFFICE
OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney,
Thomas J. Bondurant, Jr., Assistant United States Attorney, Roanoke,
Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant, Omar DesAnges, an admitted drug dealer, was con-
victed of first degree murder for the killing of Sanford Datcher. At
sentencing, the district court made a two-level upward departure in
DesAnges' sentence, pursuant to § 3C1.1 of the United States Sen-
tencing Guidelines, on the ground that he had obstructed justice by
threatening or attempting to influence certain witnesses against him.
Since we find the grant of an upward departure to be justified on this
ground, we find it unnecessary and inappropriate to address the dis-
trict court's alternative grant of a two-level upward departure on the
ground that DesAnges had committed his crime in a manner that
exposed a third party to a grave risk of harm, or on the ground that
DesAnges killed Datcher in order to avoid being prosecuted for his
drug activities.

DesAnges began transporting crack cocaine from Washington,
D.C., to Clarke County, Virginia, for resale beginning in late 1992.
He continued in that activity until December 23, 1994. During the
course of his drug dealing, DesAnges sold in excess of one kilogram
of crack cocaine.

On December 6, 1994, Sanford Datcher was sentenced on drug
charges in state court where it became public knowledge that he had
been working as an informant for local authorities. DesAnges and
Datcher were long-time friends, and Datcher knew about DesAnges'
drug activities. DesAnges was disturbed to learn that following his
arrest Datcher had informed authorities of DesAnges' criminal activi-
ties. DesAnges was also upset to learn that Datcher was having sexual
relations with some underage girls who were "like sisters" to
DesAnges. Additionally, DesAnges learned that Datcher had been
making attempts to begin a relationship with DesAnges' fiance.

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On December 23, 1994, DesAnges spotted Datcher's car in a rural
area of Clarke County. DesAnges parked his car, donned a mask,
armed himself with a Glock .40 caliber handgun, and secreted himself
behind Datcher's vehicle. A short time later, Datcher and his girl-
friend, Dawn Ford, entered the car with Datcher as the driver and
Ford as the passenger.

Once Datcher and Ford were in the car, DesAnges approached the
driver's side window and fired the gun into the passenger compart-
ment eleven to thirteen times.1 The first shots hit Datcher's hands as
they were held up in a defensive posture. The succeeding bullets hit
Datcher in the chest. Datcher then rolled on his stomach and started
to crawl over Ford's lap as DesAnges continued firing into Datcher's
side and back. The fatal shots entered Datcher's backside and tore
through his internal organs as he lay on Ford's lap. Ford was shot
once in the arm during the attack. Following the shooting, DesAnges
fled the area and destroyed and disposed of the firearm. He called an
associate later in Clarke County and asked, "Did I do good[?]"

DesAnges was not arrested until April 25, 1995. In the months
between the murder and his arrest, DesAnges contacted three wit-
nesses who could have implicated him in the homicide. In personal
contacts with the witnesses, DesAnges made comments to the effect
that "if I go down, you all go down with me." Also, DesAnges admits
to having used a fictitious name to send letters to the three witnesses
telling them to "keep clean" because the "beast is always lurking in
the midst." The witnesses, who testified to feeling threatened by
DesAnges' actions, ultimately gave false statements to the grand jury
and investigators.2

DesAnges was charged in the United States District Court for the
Western District of Virginia, in a superseding indictment dated June
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1 There were thirteen total bullet wounds but only eleven shell casings
recovered. The firearm held 13 rounds.
2 The three witnesses were charged with obstruction of justice and sen-
tenced on November 1, 1996. In passing sentence, the district court made
a downward departure pursuant to U.S.S.G. § 5K2.12, p.s. [Coercion and
Duress], due to the witnesses' fear of DesAnges. See United States v.
Summers, Crim. No. 96-37-H (W.D. Va. Nov. 1, 1996).

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22, 1995. The charges included conspiracy to distribute cocaine; capi-
tal murder for the killing of Datcher in connection with a drug con-
spiracy; and the use of a firearm during the course of a conspiracy.

On March 28, 1996, DesAnges entered a guilty plea to all of the
charges that he faced, in exchange for the government withdrawing
its request for the death penalty. Sentencing was scheduled for July
2, 1996. In the presentence report, DesAnges' offense level was set
at 44, which included a base offense level of 43; a 2-point enhance-
ment for being the leader of a drug conspiracy; a 2-point enhancement
for obstructing justice during the investigation; and a 3-point reduc-
tion for acceptance of responsibility. The presentence report recom-
mended a sentence of life imprisonment.

On July 2, 1996, a sentencing hearing was held. The judge disal-
lowed the recommended 2-point enhancement based on the allegation
that DesAnges was the leader of a drug conspiracy, but he granted a
2-point enhancement for obstruction of justice. This resulted in a sen-
tencing range of 365 months to life. The judge sentenced DesAnges
to life imprisonment, and this appeal followed.

DesAnges argues that the district court erred in making an upward
departure based on a finding of obstruction of justice under U.S.S.G.
§ 3C1.1. That section authorizes the trial court to grant a two-level
upward departure "[i]f the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administration of justice dur-
ing the investigation, prosecution, or sentencing of the instant offense
. . . ." U.S.S.G. § 3C1.1.

The district court based its upward departure on its conclusion that
the letter DesAnges wrote to Keith Summers was, in context, "an
effort to keep Keith Summers or to dissuade Keith Summers from
providing relevant and incriminating evidence to authorities." The let-
ter, in pertinent part, states as follows:

          I know those "Folks" are sweating you but stand strong, if
          you know nothing say nothing cause they have nothing . . . .
          They lie and act like they know but if they did, I wouldn't
          be here and a lot of others "who were saved" wouldn't be

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          here . . . . Stay "clean" cause the "beast" is constantly lurk-
          ing in the midst so to speak.

The court also found that similar correspondences with two other
potential witnesses -- Brenda Morris and Pam Morris -- had the
same purpose and effect.

Pursuant to 18 U.S.C. § 3742(d) (1994), this Court will accept the
district court's findings of fact unless they are clearly erroneous. The
Court is also required to give "due deference to the district court's
application of the guidelines to the facts." 18 U.S.C. § 3742(d).

It is unnecessary to decide whether DesAnges' letter was intended
as a threat or, rather, as an effort to persuade a potential witness to
lie to authorities. The commentary to § 3C1.1 states that a finding of
obstruction of justice may be triggered by the defendant's "threaten-
ing, intimidating, or otherwise unlawfully influencing" a potential
witness, or "committing suborning, or attempting to suborn perjury
. . . ." U.S.S.G. § 3C.1.1, comment. 3(a)-(b). The district judge con-
cluded that DesAnges' statement could be reasonably interpreted as
either a threat or an effort to suborn perjury, and that finding was not
clearly erroneous.

Accordingly, the district court's grant of an upward departure
based on DesAnges' attempt to threaten or influence potential wit-
nesses against him is affirmed.

AFFIRMED

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