                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                        OCT 14 1997
                    UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                             Clerk
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                       No. 96-5207
 vs.

 ROMAN DEVON HANKINS, aka
 “Mann,”

       Defendant-Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE NORTHERN DISTRICT OF OKLAHOMA
                        (D.C. No. 95-CR-148-2-C)


Jeffrey D. Fischer, Tulsa, Oklahoma, for Defendant-Appellant.

Allen J. Litchfield, Assistant United States Attorney (Stephen C. Lewis, United
States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.


Before BALDOCK, KELLY, and BRISCOE, Circuit Judges.


KELLY, Circuit Judge.


       Defendant-Appellant, Roman Devon Hankins, appeals from his sentence

imposing a two-level obstruction of justice enhancement pursuant to § 3C1.1 of
the Sentencing Guidelines. Our jurisdiction arises under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a)(2) and we affirm.

                                     Background

      From late 1991 until late 1995, Mr. Hankins participated in a conspiracy to

distribute cocaine, purchasing large amounts of powder and crack cocaine for

redistribution in Tulsa, Oklahoma. On December 12, 1995, F.B.I. agents arrested

him and found a key to a storage facility on his person. The agents had

information from a confidential informant that Mr. Hankins hid large amounts of

cash in a storage facility to be used to purchase cocaine for redistribution.

      On December 13, 1995, authorities executed a search warrant at the

residence of Mr. Hankins’s mother and found a receipt for the rental of a storage

facility. Later on December 13, 1995, and unbeknownst to Mr. Hankins,

authorities searched the storage facility and recovered $167,260 in U.S. currency.

On December 14, 1995, during pre-trial detention, Mr. Hankins placed a phone

call from the Tulsa County Jail to his sister, which was monitored and recorded

by the F.B.I. He gave his sister and others various instructions: obtain bolt

cutters, go to the storage facility (without being followed), cut the two locks on

the door, and remove the cash. He emphasized to her that he was counting on this

and wished they could remove the cash soon so that he could get some sleep.




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      On February 8, 1996, a grand jury returned a second superseding indictment

charging Mr. Hankins with one count of conspiracy to possess cocaine with intent

to distribute, in violation of 21 U.S.C. §§ 841(a)(1)and 846. On February 14,

1996, he pleaded guilty and was sentenced to 230 months imprisonment. He

received a two-level obstruction of justice enhancement under § 3C1.1 based on

his effort to have the cash removed from the storage facility. See USSG § 3C1.1.

On appeal, he contends that the district court incorrectly interpreted and

misapplied § 3C1.1 because his attempted obstruction was (1) factually

impossible, and (2) contemporaneous with his arrest but not a material hindrance

to the investigation as required.

                                      Discussion

      In evaluating Mr. Hankins’s arguments, we review the district court’s

factual determinations concerning the obstruction of justice enhancement for clear

error only. United States v. Farnsworth, 92 F.3d 1001, 1009 (10th Cir.) (citing

United States v. Gomez-Arrellano, 5 F.3d 464, 465 (10th Cir. 1993)), cert. denied,

117 S. Ct. 596 (1996). We give due deference to the district court’s application

of the Guidelines to the facts and its ability to judge the credibility of the

witnesses upon whose testimony it relied. Id. (citing 18 U.S.C. § 3742(e)). Our

review of the district court’s legal interpretation of the sentencing guidelines,




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however, is de novo. See United States v. Rowlett, 23 F.3d 300, 303 (10th Cir.

1994).

         Section 3C1.1 mandates a two-level offense increase “[i]f the defendant

willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the investigation, prosecution, or sentencing of

the instant offense . . . .” USSG § 3C1.1. Whether conduct amounts to an

attempted obstruction of justice may be determined by reference to the

commentary’s non-exhaustive list of examples of included and excluded conduct.

See USSG § 3C1.1 comment. (n.2). At the same time, § 1B1.3(a) demonstrates an

“intent to give courts the discretion to consider a broad range of conduct in

making adjustments.” United States v. Williams, 879 F.2d 454, 457 (8th Cir.

1989); see USSG § 1B1.3(a). Furthermore, “[o]bstructive conduct can vary

widely in nature, degree of planning, and seriousness.” USSG § 3C1.1 comment.

(n.2). Most relevant here is application note 3(d), which provides that this

enhancement applies where a defendant’s conduct includes:

         destroying or concealing or directing or procuring another person to
         destroy or conceal evidence that is material to an official investigation
         or judicial proceeding . . ., or attempting to do so; however, if such
         conduct occurred contemporaneously with arrest . . ., it shall not,
         standing alone, be sufficient to warrant an adjustment for obstruction
         unless it resulted in a material hindrance to the official investigation or
         prosecution of the instant offense or the sentencing of the offender . .
         ..

USSG § 3C1.1 comment. (n.3(d)).

                                            -4-
      Mr. Hankins contends that his instructions did not constitute an attempt

because the authorities had already seized the evidence, rendering his endeavor

factually impossible. We disagree and hold that the general rule that factual

impossibility is not a defense to criminal attempt applies to § 3C1.1.

      Factual impossibility is generally not a defense to criminal attempt because

success is not an essential element of attempt crimes. See United States v.

Aigbevbolle, 827 F.2d 664, 666 (10th Cir. 1987); United States v. Johnson, 767

F.2d 673, 675 (10th Cir. 1985); Osborn v. United States, 385 U.S. 323, 332-33

(1966); Wayne R. La Fave & Austin W. Scott, Jr., Criminal Law § 6.3(a)(2) (2d

ed. 1986) (“All courts are in agreement that what is usually referred to as ‘factual

impossibility’ is no defense to a charge of attempt.”). Where intent and conduct

evidence an attempt, one should not escape responsibility merely because he

could not effectuate the intended result, due to some fortuitous circumstance not

apparent to him when he acted. See People v. Moran, 25 N.E. 412, 412-13 (N.Y.

1890). Likewise, factual impossibility is generally not a defense to an attempted

obstruction enhancement because success is also not an essential element of

attempt under § 3C1.1. See USSG § 3C1.1; Rowlett, 23 F.3d at 306 (“Under the

foregoing Guidelines provision, an obstruction of justice enhancement may be

made . . . regardless of whether actual hindrance to an official investigation or




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prosecution results.”); United States v. Flores-Flores, 5 F.3d 1365, 1369 (10th

Cir. 1993).

      We would caution that particularly in the face of an allegation of

impossibility, the government must produce adequate proof of intent to commit a

crime. See Johnson, 767 F.2d at 675 (citing United States v. Conway, 507 F.2d

1047, 1050 (5th Cir. 1975)). Evidence of such an intent “may be coupled with

proof of a defendant’s acts which stamp his conduct as criminal in nature.” Id. at

675 (citing United States v. Oviedo, 525 F.2d 881, 885 (5th Cir. 1976)). To

ensure that innocent conduct is not punished, “[t]he acts should be unique rather

than so commonplace that they are engaged in by persons not in violation of the

law.” Id. at 675 (quoting Oviedo, 525 F.2d at 885)).

      The government produced ample evidence of Mr. Hankins’s intent to

destroy or conceal evidence. Mr. Hankins’s telephone call instructing his sister

and others to use bolt cutters, avoid being followed, and remove evidence of his

offense so that he could sleep better at night, III R. 44, evinced sufficiently

unique, conscious action with a purpose of obstructing justice. See United States

v. Gardiner, 931 F.2d 33, 35 (10th Cir. 1991) (stating relevant intent requirement)

(citing United States v. Stroud, 893 F.2d 504, 507 (2d Cir. 1990)). Factual

impossibility is therefore no defense to Mr. Hankins’s attempted obstruction of

justice enhancement.


                                          -6-
      Mr. Hankins relies upon two Ninth Circuit opinions to argue that the

obstruction enhancement is only proper if his attempt was factually possible. See

United States v. Draper, 996 F.2d 982, 986 (9th Cir. 1993); United States v.

Baker, 894 F.2d 1083, 1084 (9th Cir. 1990). He suggests that the court’s use of

the phrase “potential to obstruct” imposes the additional requirement that the

attempt be possible. We differ with his reading of these opinions.

      These opinions upheld attempted obstruction enhancements despite lack of

success, reasoning that the conduct involved nevertheless had the “potential to

obstruct.” See Draper, 996 F.2d at 986; Baker, 894 F.2d at 1084. Thus, these

cases simply stand for the proposition that an enhancement is proper where the

conduct involved, if successful, could have obstructed justice. See Draper, 996

F.2d at 986; Baker, 894 F.2d at 1084; cf. Flores-Flores, 5 F.3d at 1369. We

decline to draw a distinction based on these cases between obstruction attempts

that are foiled by the authorities after the fact and those that happen to be foiled,

unbeknownst to the defendant, before the fact. Conduct in both scenarios can be

of the nature which, if successful, would have the potential to obstruct justice.

      Mr. Hankins also contends that his attempted obstruction was

contemporaneous with his arrest, thus triggering the commentary’s “material

hindrance” requirement. USSG § 3C1.1 comment. (n.3(d)). He argues that there

could have been no such hindrance because the authorities already had seized the


                                          -7-
evidence hidden in the storage facility. The district court implicitly found that

Mr. Hankins’s obstructive conduct was not contemporaneous with his arrest and

this finding was not clearly erroneous. “Contemporaneous” for purposes of §

3C1.1 has been construed to encompass obstructive conduct just prior to arrest, as

when the police are at the defendant’s door. See United States v. Perry, 991 F.2d

304, 312 (6th Cir. 1993). Unlike that in Perry, Mr. Hankins’s conduct two days

after his arrest was not “contemporaneous” within the meaning of the term in

§ 3C1.1, and the material hindrance requirement was therefore not triggered. See

Rowlett, 23 F.3d at 306.

      Lastly, Mr. Hankins relies upon United States v. Savard, 964 F.2d 1075

(11th Cir.), cert. denied, 506 U.S. 928 (1992), and argues that an obstruction of

justice enhancement is improper based on “conduct which is incapable of ripening

by virtue of factual barriers.” Aplt. Brief at 8. Savard is of no help to Mr.

Hankins. In Savard, the court found that the defendant’s attempt was

contemporaneous with his arrest, triggering the “material hindrance” requirement.

This requirement was not met because the authorities already possessed all of the

information the defendant attempted to conceal. See id. at 1078-79. Under

§ 3C1.1, whether Mr. Hankins’s non-contemporaneous attempt materially

hindered the investigation is irrelevant. See Rowlett, 23 F.3d at 306 (“Only

where such conduct ‘occurred contemporaneously with arrest’ does the


                                         -8-
enhancement hinge on whether ‘it resulted in a material hindrance to the official

investigation or prosecution of the instant offense or the sentencing of the

offender.’”) (citing USSG § 3C1.1 comment. 3(d)).

      Mr. Hankins’s motion for leave to file a supplemental brief arguing that his

counsel was ineffective is DENIED. See United States v. Galloway, 56 F.3d

1239, 1240 (10th Cir. 1995) (en banc) (ineffective assistance of counsel claim

should be pursued in collateral proceedings and not on direct appeal, where it is

subject to presumptive dismissal without prejudice). His motion to supplement

the record is GRANTED.

      AFFIRMED.




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