                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-2396
                        ___________________________

                            United States of America

                             lllllllllllllllllllll Appellee

                                          v.

                    Hugo Galaviz, also known as Big Happy

                            lllllllllllllllllllll Appellant
                                   ____________

                    Appeal from United States District Court
                         for the District of Nebraska
                                ____________

                            Submitted: May 15, 2012
                             Filed: August 6, 2012
                                ____________

Before WOLLMAN, ARNOLD, and SMITH, Circuit Judges.
                         ____________

ARNOLD, Circuit Judge.

      After Hugo Galaviz pleaded guilty to distributing methamphetamine, 21 U.S.C.
§ 841(a)(1), (b)(1), and being a felon in possession of a firearm, 18 U.S.C.
§§ 922(g)(1), 924(a)(2), the district court sentenced him to 151 months'
imprisonment. Mr. Galaviz appeals his sentence, raising as his sole issue the
propriety of the district court's enhancement of his sentence for obstructing justice.
See U.S.S.G. § 3C1.1. We reverse.

       As relevant here, § 3C1.1 provides that a defendant's offense level should be
enhanced two levels if he "willfully ... attempted to obstruct ... the administration of
justice with respect to ... the sentencing of the instant offense of conviction." The
district court found on a sufficient record that while in prison, after pleading guilty,
Mr. Galaviz engaged in a conspiracy to murder Ubeldo Lopez-Gonzalez, who was
a confidential informant in the case. The district court also found, again on a
sufficient record, that Mr. Galaviz's motive for entering the conspiracy was to
retaliate against Mr. Lopez for his cooperation with the government. But because
Mr. Galaviz had already pleaded guilty, he could not have intended to obstruct justice
"with respect to the instant offense" by plotting to kill Mr. Lopez unless he thought
that Mr. Lopez was going to testify against him at sentencing, and that indeed was the
government's theory in the first brief that it filed in this court. The infirmity of this
position is that the record will not support a finding that Mr. Galaviz had reason to
think that Mr. Lopez would be a witness against him at sentencing.

       The dissent suggests that we are intimating that "a probability that the
government could call the confidential informant at a sentencing hearing is
insufficient to establish" an enhancement for obstruction of justice if the defendant
conspires to kill the confidential informant. On the contrary, though that case is not
before us, a probability that a witness would be called at sentencing might well
support an inference that a defendant's effort to have the probable witness killed was
motivated by a desire to eliminate the witness's testimony. But the record in this case
does not support the premise that it was probable that Mr. Lopez would testify at the
time Mr. Galaviz entered into the conspiracy to kill him or during the time when
Mr. Galaviz was involved in the conspiracy. Any inference that such a premise might
support must therefore fail. The district court, moreover, never found that the
premise existed, partly because the government never asked it to do so.

                                          -2-
       In a supplemental submission, the government changes its argument and now
for the first time maintains that a general retaliatory motive that relates to the offense
of conviction is sufficient to trigger the enhancement. The difficulty with this
contention is that, as relevant here, the guideline specifically requires a willful
attempt to obstruct the sentencing process for it to be applicable. The government
draws our attention to United States v. Wahlstrom, 588 F.3d 538, 542-46 (8th Cir.
2009), which involved a defendant's threat to kill the wife of the AUSA who was
prosecuting his case. But that case is different from ours, because a defendant's threat
to a prosecutor or his family could well affect or hinder the prosecution of the
defendant's case, or, at least, a defendant might think so. Here, there is no evidence
that retaliation would impede the progress of Mr. Galaviz's case in any way, or that
he could have thought that it would.

      Mr. Galaviz can of course be prosecuted by a proper authority for plotting to
kill Mr. Lopez. But the sentencing enhancement does not apply because there is no
showing that the plot was intended to obstruct justice on the instant offense of
conviction.

      We therefore reverse the sentence and remand for further proceedings.

SMITH, Circuit Judge, dissenting.

      The majority holds that the district court erred in finding that Galaviz
obstructed justice by participating in a conspiracy to kill the government's
confidential informant and principal witness in the prosecutorial process used to
convict Galaviz and who provided testimony at Galaviz's subsequent sentencing
hearing. The court thus interprets U.S.S.G § 3C1.1 in such manner that it cannot be
used to enhance a defendant's sentence for obstruction of justice for conspiring to
murder the government's principal witness because Galaviz's motive was simply



                                           -3-
retaliation for the witness being a snitch1 and not an effort to prevent the witness's
availability for his pending sentencing hearing. Because I believe that the district
court did not err in finding that Galaviz's attempt to kill the government's confidential
informant amounted to an obstruction of justice, I respectfully dissent.

       The court finds that the government did not prove that Galaviz knew the
witness would testify at his sentencing hearing and thus could not have intended to
obstruct or impede the sentencing for his offense of conviction. The majority thus
makes and then accepts a better argument for reversal than Galaviz made for himself.
Galaviz's brief and supplemental brief argue that no obstruction took place because
the investigation was complete; he had already pleaded guilty and in his words, "the
attempted threat of harm to a witness would have had no impact on the case against
Galaviz at the time the conduct occurred." He concludes his argument by stating,
"assuming that there is sufficient evidence to show that Galaviz obstructed or
attempted to obstruct justice, such actions would have had no effect on the
investigation, prosecution or sentencing of the offenses of conviction in this case as
is required by U.S.S.G. § 3C1.1." Yet, Galaviz acknowledges that he participated in
conversations with a co-conspirator two weeks before the sentencing hearing
regarding an attempt to kill a confidential informant. Galaviz's argument fails to take
into account that an actual obstruction need not have occurred because the
enhancement applies to attempts as well as completed crimes. We have stated, "[a]n
attempt to intimidate or threaten a witness, even if unsuccessful, is sufficient to
sustain a two-level enhancement for obstruction of justice." United States v. Carrillo,
380 F.3d 411, 415 (8th Cir. 2004) (quotations and citations omitted). Further, "[t]he
language of § 3C1.1 is broad, and as the commentary recognizes, '[o]bstructive
conduct can vary widely in nature, degree of planning, and seriousness.'" United
States v. Wahlstrom, 588 F.3d 538, 544 (8th Cir. 2009) (quoting U.S.S.G. § 3C1.1


      1
       A snitch is a negative slang term offenders use to describe an informant. White
v. Fox, No. 10-40843, 2012 WL 638569 at *6 (5th Cir. Feb 28, 2012).

                                          -4-
n.3). Finally, this circuit upholds the application of an obstruction of justice
enhancement regardless of "whether [the defendant was] motivated by the desire to
impede the proceedings or by vengeance." Id. at 545.

       Planning to murder a potential witness is surely an attempt to affect whatever
phase of a prosecution remains incomplete whether or not it would also serve as
retribution for snitching. But the majority holds that Galaviz must have had intended
to obstruct a specific proceeding, and thus merely agreeing to kill a person that
assisted the government in garnering a conviction in his case is insufficient.
Specifically, the majority finds that the government must prove that Galaviz knew
that the government was going to call the confidential informant at his sentencing
hearing before the district court could apply an obstruction enhancement. In other
words, a probability that the government could call the confidential informant at a
sentencing hearing is insufficient to establish an obstruction of justice charge by a
preponderance of the evidence even if the defendant, by objecting to the PSR, made
it more probable that the government would call the confidential informant.

        I would hold that the district court did not err in concluding that Galaviz could
have intended to obstruct his sentencing hearing by attempting to kill the confidential
informant. At the time he entered the conspiracy, Galaviz's sentencing remained
pending. Galaviz filed an objection to the PSR on April 4, 2011; thus making a
hearing on at least some issues probable. He then subsequently conspired to take the
life of the confidential informant who had given incriminating statements against him
that led to Galaviz's guilty plea. Thus, at the time Galaviz entered into the conspiracy
it was probable that the government would have called the confidential informant to
testify at Galaviz's sentencing hearing (which the informant ultimately did do). In my
view, the fact that Galaviz knew that the confidential informant was a snitch2 and


      2
      Galaviz knew that Lopez was a snitch and an important snitch at that because
Lopez purchased the gun from Galaviz, which the government used to apply the

                                          -5-
assisted the government in its case against him, and the fact that Galaviz's
proceedings had not yet concluded, satisfies the intent requirement for § 3C1.1.

       The majority's interpretation of § 3C1.1 can lead to anomalous results. For
instance, under the majority's reading of § 3C1.1 intent requirement, if Galaviz
succeeded in killing the government's confidential informant, the district court could
not impose an obstruction of justice enhancement although the government eventually
called the confidential informant as a witness at Galaviz's sentencing hearing. In other
words, had Galaviz succeeded in his plot, the district court would not be able to
impose an obstruction of justice enhancement even though Galaviz obstructed justice
in his own case. Thus, the majority's interpretation of § 3C1.1 would disallow
application of an obstruction of justice enhancement in cases where the defendant
may have obstructed justice in his or her own case.

       "We review the district court's construction of the advisory guidelines de novo
and its associated factual findings for clear error." United States v. Wisecarver, 644
F.3d 764, 773 (8th Cir. 2011). On this record and briefing, I cannot conclude that the
district court misconstrued the guideline or clearly erred in its factual findings and
therefore respectfully dissent.
                        ______________________________




felon-in-possession of a firearm charge.

                                           -6-
