In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3025

United States of America,

Plaintiff-Appellee,

v.

Maurice O. Irby,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 1:00-CR-10017-001--Michael M. Mihm, Judge.

Argued January 30, 2001--Decided February 14, 2001



      Before Flaum, Chief Judge, and Ripple and Rovner,
Circuit Judges.

      Flaum, Chief Judge. Maurice Irby pleaded guilty
to one count of possession of a firearm by a
felon in violation of 18 U.S.C. sec. 922(g)(1).
At sentencing, the district court applied a four-
level upward adjustment to Irby’s offense level
under U.S.S.G. sec. 2K2.1(b)(5) based on its
determination that Irby had committed another
felony offense in connection with his use or
possession of a firearm. The court also applied
a two-level upward adjustment under U.S.S.G. sec.
3C1.1 for obstruction of justice on account of
Irby’s tampering with a witness. Irby was
sentenced to 92 months in prison, three years of
supervised release, and a $100 assessment. Irby
appeals, challenging the propriety of the
district court’s two upward adjustments. For the
reasons stated herein, we affirm the sentencing
decisions of the district court.

I.   BACKGROUND

      On January 18, 2000, Maurice Irby was released
from the Peoria County Jail, where he had been
incarcerated for a felony robbery conviction.
Approximately two weeks after his release, Irby
purchased a loaded silver .44 magnum revolver
from an unidentified individual. Irby concealed
the gun under broken pieces of concrete in an
alley. On the morning of February 11, 2000, Irby
retrieved the gun from its hiding place and went
to the home of J.T. Toombs to purchase some
marijuana. Upon arrival, Irby asked Toombs if he
could pay a total of fifteen dollars for two bags
of marijuana that had a street value of ten
dollars per bag. Toombs agreed and gave Irby the
two bags of marijuana. After receiving the bags,
Irby noted to Toombs that the bags of marijuana
"seemed a little light," and that he felt he was
being cheated. At that point, Toombs told his
wife to bring him his gun. Irby, fearing for his
life, pulled out his own gun, and a struggle
ensued between the two men. In the course of the
melee, four shots were fired, though neither Irby
nor Toombs was hit. Eventually, Toombs was able
to wrestle the gun away from Irby, at which point
Irby fled the residence.

      When officers arrived on the scene, they
recovered the gun from Toombs, and also found a
small bag of marijuana under a couch in his home.
Toombs identified Irby as the person with whom he
had struggled over the gun, and Irby was
consequently arrested. In the course of
questioning, Irby admitted that he had possessed
the revolver and also admitted hiding the
revolver under his coat when he went to Toombs’s
home. Subsequently, Irby was charged with and
pleaded guilty to the offense of unlawful
possession of a firearm by a felon in violation
of 18 U.S.C. sec. 922(g)(1). He was not charged
with any offense relating to his possession of
marijuana. A presentence report ("PSR") was
prepared, in which a probation officer
recommended adjusting Irby’s base offense level
by four points pursuant to sec. 2K2.1(b)(5)
because he had used or possessed a firearm in
connection with another felony offense, namely
possession of marijuana. The probation officer
reasoned that Irby’s possession of marijuana at
the time of the firearm offense was felonious
conduct under 21 U.S.C. sec. 844(a) because Irby
had prior drug offense convictions. The probation
officer also reported that Irby had placed a
collect call to Toombs after he had entered his
guilty plea but prior to sentencing. Toombs
reported that in the course of that conversation,
Irby had asked Toombs why he had given the gun to
the police. Furthermore, according to Toombs,
Irby requested that Toombs not testify against
him if he were asked to do so. Based on this
information, the probation officer recommended
adding two points to Irby’s offense level
pursuant to sec. 3C1.1 for obstruction of
justice. The district court imposed the two
suggested enhancements and sentenced Irby to 92
months imprisonment. Irby now appeals, arguing
that the imposition of an upward adjustment
pursuant to sec. 2K2.1 (b)(5) was inappropriate,
in that his possession of marijuana constituted
a misdemeanor, rather than a felony. Irby also
suggests that the imposition of an enhancement
for obstruction of justice, pursuant to sec.
3C1.1, was in error, as his telephone call to
Toombs did not constitute a threat.

II.   DISCUSSION

      We review a district court’s application of the
sentencing guidelines de novo, but defer to the
court’s finding of facts unless they are clearly
erroneous. United States v. Payton, 198 F.3d 980,
982 (7th Cir. 1999). "A factual determination is
clearly erroneous only if, after considering all
the evidence, the reviewing court is left with
the definite and firm conviction that a mistake
has been committed." United States v. Messino, 55
F.3d 1241, 1247 (7th Cir. 1995) (internal
quotation marks omitted).

A. Upward Adjustment Pursuant to U.S.S.G. sec.
2K2.1(b)(5)

      Irby’s first contention on appeal is that the
district court erred in increasing his offense
level by four because he used or possessed a
firearm in connection with a felony.
Specifically, Irby argues that under 21 U.S.C.
sec. 844(a), possession of marijuana is
punishable by no more than one-year imprisonment,
and that therefore his possession constituted a
misdemeanor, not a felony offense. Although Irby
concedes that sec. 844(a) contains provisions
that increase the maximum punishment for
possession of marijuana beyond one year for
defendants with prior drug convictions, he
asserts that prior convictions cannot be used to
increase a sentence beyond the misdemeanor level
unless the government files an enhancement
information under 21 U.S.C. sec. 851 listing
those prior convictions.

      According to U.S.S.G. sec. 2K2.1(b)(5), "If the
defendant used or possessed any firearm or
ammunition in connection with another felony
offense; or possessed or transferred any firearm
or ammunition with knowledge, intent, or reason
to believe that it would be used or possessed in
connection with another felony offense, increase
by four levels." Application note 7 to Sentencing
Guideline sec. 2K2.1 defines "felony offense" as
"any offense . . . punishable by imprisonment for
a term exceeding one year, whether or not a
criminal charge was brought, or conviction
obtained" (emphasis added).

      Irby’s attempt to pigeonhole his case so that
it is governed by the 21 U.S.C. sec. 851 filing
requirement is unpersuasive. Simply put, Irby’s
marijuana possession constitutes "another felony
offense" under sec. 2K2.1(b)(5). So long as an
offense is punishable by more than one year of
imprisonment, and is done in connection with the
use or possession of a firearm, that offense can
constitute "another felony offense." See U.S.S.G.
sec. 2K2.1 commentary at 7. It does not matter
whether the government brought a charge or
obtained a conviction on that offense. Id.
Because a charge need not be brought before
allowing an adjustment under sec. 2K2.1(b)(5), an
information (which is required to secure the
enhanced penalty under sec. 844(a)) need not be
filed before applying an adjustment under sec.
2K2.1(b)(5). Irby does not contest the fact that
he possessed the marijuana, nor does he challenge
the fact that he has four prior state drug
convictions. By his own admission, therefore, he
qualifies for the enhanced felony provision of
sec. 844(a). Accordingly, with or without the
government filing an information pursuant to sec.
851, his possession of marijuana on February 11
constituted "another felony offense" pursuant to
sec. 2K2.1(b)(5).

B. Upward Adjustment Pursuant to U.S.S.G. sec.
3C1.1

      Irby’s second argument on appeal is that the
district court erred in giving him a two-level
increase for obstruction of justice. In this
regard, Irby contends that the sec. 3C1.1
enhancement was inappropriate, as his telephone
call to Toombs did not constitute threatening of
a witness. The sentencing court’s sole evidence
in support of the obstruction of justice claim
came from Toombs, who testified that he had not
felt threatened by his conversation with Irby.
However, according to Toombs he did "believe
[Irby] was trying to get me not to come to
court." The district court denied Irby’s
objection, concluding that "what happened here
constitutes an implied threat," and thus an
attempt to obstruct justice.

      Under sec. 3C1.1, a defendant’s offense level
shall be increased by two if the defendant
"willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice
during the course of the investigation,
prosecution or sentencing" phase of an offense.
The commentary to sec. 3C1.1 provides examples of
types of conduct amounting to obstruction of
justice, including "threatening, intimidating, or
otherwise unlawfully influencing a co-defendant,
witness, or juror, directly or indirectly, or
attempting to do so." U.S.S.G. sec. 3C1.1
commentary at 4.

      The district court in this case heard Toombs’s
testimony and determined that the contents of
Irby’s telephone call to this witness constituted
an "implied threat." In making that
determination, the court acted well within its
discretion in crediting this testimony and making
the factual finding that Irby threatened Toombs.
As we stated above, a district court’s factual
findings made during sentencing will be
overturned only if this court’s review leaves us
"with a definite and firm conviction that a
mistake has been committed." United States v.
Richards, 198 F.3d 1029, 1032 (7th Cir. 2000)
(internal quotation marks and citation omitted).
Irby suggests that he would have had no reason to
influence Toombs’s testimony because he had
already pleaded guilty. But the probability of
Irby’s statements truly influencing Toombs’s
actions is irrelevant because sec. 3C1.1
specifically applies to sentencing proceedings,
covers attempts to obstruct justice, and contains
no requirement that the attempt to influence the
witness be successful. See United States v.
Buckley, 192 F.3d 708, 710 (7th Cir. 1999) ("The
purpose of punishing obstruction of justice is
not just to prevent miscarriages of justice but
also to reduce the burden on the justice
system.").

      Finally, Irby’s contentions that Toombs’s
testimony was (1) unreliable and (2) inadequate
in providing the court with a basis for finding
that Irby had specific intent to influence the
sentencing proceedings, are likewise without
merit. Although Toombs could not remember exactly
what Irby told him during the telephone call, he
did state several times that he remembered the
substance of the conversation: "that it would be
best" if Toombs did not testify. It was within
the district court’s discretion to credit
Toombs’s understanding of the reason for the
phone conversation and, under the Guidelines,
Irby did not have to make a direct threat in
order to qualify for the obstruction of justice
adjustment to his offense level, see U.S.S.G.
sec. 3C1.1 commentary at 4; see also Richards,
198 F.3d at 1033 (rejecting argument that telling
a person "not to talk to police is sage advice,
not an obstruction of justice"); United States v.
Wright, 37 F.3d 358, 362 (7th Cir. 1994)
(collecting cases).

III.   CONCLUSION

       The district court properly decided that Irby’s
possession of marijuana constituted "another
felony offense" pursuant to sec. 2K2.1(b)(5).
Furthermore, the court did not clearly err in
finding that Irby’s telephone call to Toombs
constituted obstruction of justice pursuant to
sec. 3C1.1. Thus, for the foregoing reasons, we
Affirm the sentencing decision of the district
court.
