                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-17-1994

United States of America v. Woods
Precedential or Non-Precedential:

Docket 93-1432




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             UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ____________

                      NO. 93-1432
                      ____________


               UNITED STATES OF AMERICA,

                                     Appellee
                           v.

                      ALAN WOODS,

                                   Appellant
           _________________________________

    On Appeal From the United States District Court
       For the Eastern District of Pennsylvania
              (D.C. Crim. No. 91-00441-01)
           _________________________________

          Submitted Under 3rd Cir. LAR 34.1(a)
                     April 11, 1994

Before:   BECKER, MANSMANN, and SCIRICA, Circuit Judges.

                (Filed:   May 17, l994 )

               _________________________

                  OPINION OF THE COURT
               _________________________

                           MICHAEL R. STILES
                           United States Attorney
                           WALTER S. BATTY, JR.
                           Assistant U.S. Attorney
                           Chief of Appeals
                           TERRI A. MARINARI
                           FREDERICK A. TECCE
                           Assistant U.S. Attorneys
                           615 Chestnut Street
                           Suite 1250
                           Philadelphia, PA 19106

                                Attorneys for Appellee




                           1
                                ROBERT J. O'SHEA, JR.
                                George W. Howard, III, P.C
                                1608 Walnut St.
                                Suite 1700
                                Philadelphia, PA 19103

                                     Attorney for Appellant



BECKER, Circuit Judge.

          This is a Guidelines Sentencing appeal.   Appellant Alan

Woods was sentenced under the United States Sentencing Guidelines

for his involvement in two armored truck robberies.   At

sentencing, the district court gave Woods a two level increase in

his sentence for obstruction of justice because Woods had given

the government misleading information in an effort to avoid

implicating two friends in a third armored truck robbery.     Woods

argues that because the misleading information did not impede or

obstruct the investigation or prosecution of the offenses for

which he was convicted, neither an upward adjustment for

"obstruction of justice" under § 3C1.1 nor a departure under

§5K2.0 was permissible under the Guidelines.   Because of the

manner in which the Guidelines are written in this area, we feel

constrained to agree with Woods, and hence, albeit reluctantly,

we vacate the judgment of sentence and remand for resentencing.



                         I.   BACKGROUND

          From August 1990 until July 1991, Woods took part in a

series of robberies of armored trucks in and around Philadelphia.

In September 1991, a grand jury indicted Woods for the robbery of



                                2
a Brooks armored truck outside the Temple University Hospital in

Philadelphia (the "Temple robbery").1    On February 7, 1992, one

day after the trial began, Woods entered a guilty plea in which

he admitted participating not only in the Temple robbery but also

in another armored truck robbery at Amtrak 30th Street Station

(the "Amtrak robbery"), also in Philadelphia.

          The plea agreement provided that Woods would provide

the government information about any other person who was

involved in the Temple robbery, the Amtrak robbery, and "any

other robberies or crimes [of] which he has knowledge."    The

agreement also provided that "if the government determines that

the defendant has not provided full and truthful cooperation . .

. the agreement may be voided by the government and the defendant

shall be subject to prosecution for any federal crime which the

government has knowledge including . . . perjury, obstruction of

justice, and the substantive offenses arising from this

investigation."

          Woods then began supplying the FBI with information

about the Temple and Amtrak robberies.    He also told the FBI

about two other armored truck robberies, one at a branch of the

Liberty Bank and another at a Pathmark Supermarket.    He later

gave this same information during his testimony before a grand

jury.



1
The indictment alleged both a substantive violation of the Hobbs
Act, 18 U.S.C. § 1951 (conduct that "obstructs, delays, or
affects commerce or the movement of any article or commodity in
commerce, by robbery"), and conspiracy.


                                3
          Woods' descriptions of the Temple, Amtrak, and Pathmark

robberies were substantially the same as those given by other

cooperating witnesses.   Woods' description of the Liberty Bank

robbery, however, was significantly different.       To begin with,

Woods denied his involvement in the Liberty Bank robbery,

claiming that he had been at home when it occurred.       In fact,

Woods had been in a vehicle circling the vicinity of the robbery

and was at the "switch site" acting as a lookout.       More

importantly for purposes of this appeal, however, Woods

consistently denied that two friends of his, William Edney and

Earl Glenn, were involved in the crime.        The FBI later found out,

however, that both Edney and Glenn had participated in the

robbery, eventually gathering enough evidence to prosecute them.

But Woods' conduct delayed that prosecution for eight months.

          At Woods' sentencing hearing the district court heard

testimony about Woods' conduct during the investigation of the

Liberty Bank robbery.    The district court found that Woods had

made materially false statements to the FBI and grand jury,

whereupon it concluded that "the defendant 'obstructed justice'

by providing materially false statements to the FBI and by

committing perjury before the grand jury."       The court then

increased the defendant's offense level two levels "pursuant to

either § 5K2.0 or § 3C1.1."      This appeal followed, in which Woods

argues that the two level increase was inappropriate either as an

upward adjustment pursuant to § 3C1.1 or as an upward departure

pursuant to § 5K2.0.

                           II.    DISCUSSION


                                   4
           A. Section 3C1.1, "Obstruction of Justice"

          Section 3C1.1 of the Guidelines provides:

          If 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, increase the offense

          level by 2 levels.

U.S.S.G. § 3C1.1 (1993) (emphasis added).   Although this language

could be read to allow an upward adjustment whenever the

defendant obstructs the investigation or prosecution of any

offense during the investigation, prosecution, or sentencing of

the offense for which the defendant was convicted, we have

squarely held that this adjustment applies only when the

defendant has made efforts to obstruct the investigation,

prosecution, or sentencing of the offense of conviction.     United

States v. Belletiere, 971 F.2d 961, 967 (3d Cir. 1992) ("Section

3C1.1 applies to willful obstruction or attempt to obstruct 'the

administration of justice during the . . . sentencing of the

instant offense.'   'Any interpretation other than that § 3C1.1

refers to efforts to obstruct the prosecution of the conviction

offense would only render this modifier meaningless.'" (citation

omitted) (emphasis in original)); accord United States v. Levy,

992 F.2d 1081, 1084 (10th Cir. 1993) (obstruction must be of the

offense of conviction).

          Woods pled guilty to the Temple and Amtrak robberies.

He did not, however, plead guilty to the Liberty Bank robbery.

                                5
Indeed, he was never even indicted for that crime.   Thus Woods

made no efforts to obstruct the investigation, prosecution, or

sentencing of the offense of conviction, and any enhancement

pursuant to § 3C1.1 was inappropriate.2   We therefore turn to the

question whether an upward departure was appropriate.



                B. Section 5K2.0 Upward Departure

          Section 5K2.0 provides that the sentencing court may

depart from the guidelines if it finds:
          that there exists an aggravating or
          mitigating circumstance of a kind, or to a
          degree, not adequately taken into
          consideration by the Sentencing Commission in
          formulating the guidelines that should result
          in a sentence different from that described.


2
The district court tried to avoid Belletiere by stating that

          [t]he language of § 3C1.1 makes it clear that it does
          apply to obstruction of justice "during . . .
          sentencing of the instant offense." There appears to
          be at least three cases which make it clear that a
          defendant who perjures himself at the sentencing
          hearing, triggers an increase in offense level of two
          levels for willfully obstructing justice. [United
          States v. Goldfaden, 987 F.2d 225 (5th Cir. 1993);
          United States v. Hamilton, 929 F.2d 1126 (6th Cir.
          1991); and United States v. Hassan, 927 F.2d 303 (7th
          Cir. 1991)]. The issue presented in this case is
          whether this defendant willfully obstructed justice
          during the sentencing of the instant offense by
          providing materially false statements to the FBI and
          the grand jury in violation of his plea agreement . . .
          .

The cases cited by the district court, however, all involved
situations in which the defendant interfered with the prosecution
and sentencing of the offense of conviction. Goldfaden, 987 F.2d
at 227; Hamilton, 929 F.2d at 1130; Hassan, 927 F.2d at 309. They
do not stand for the proposition that any false statement made
during sentencing may trigger the adjustment.


                                6
U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)) (internal

quotations omitted).   Woods' obstruction of justice, relating as

it did to serious crimes, was itself quite serious, and it would

seem that he deserved the two-level upward adjustment

notwithstanding that it did not fall within the ambit of § 3C1.1.

The putative (and quite plausible) ground for an upward departure

would be his false statements to the government, resulting in

obstruction of justice in connection with an investigation other

than for the offense of conviction but related to it.

          The problem with this approach, however, is that the

Commission ostensibly considered such situations when fashioning

§ 3C1.1 of the Guidelines.   The Application Notes of § 3C1.1

contain a non-exhaustive list of examples of conduct to which the

adjustment applies, including:
          (b) committing, suborning, or attempting to
          suborn perjury; [and]

          . . .

          (g) providing a materially false statement
          to a law enforcement officer that
          significantly obstructed or impeded the
          official investigation or prosecution of the
          instant offense[.]


U.S.S.G. § 3C1.1, Application Note 3(b) & (g).   Application Note

4 supplements that list with "a non-exhaustive list of examples

of the types of conduct that, absent a separate count of

conviction for such conduct, do not warrant application of this

enhancement, but ordinarily can appropriately be sanctioned by

the determination of the particular sentence within the otherwise

applicable guideline range."   U.S.S.G. § 3C1.1, Application Note


                                7
4 (emphasis added).   One example of conduct that does not warrant

an obstruction of justice adjustment is "making false statements,

not under oath, to law enforcement officers, unless Application

Note 3(g) above applies."   U.S.S.G. § 3C1.1, Application Note

4(b).   The Commission thus appears to have considered false

statements like those involved here, and elected not to punish

them as part of the conviction for the instant offense.

           Woods basically made two types of false statements when

he tried to throw the FBI off the trail of his friends:    ones to

the grand jury, and ones to the FBI agents in interviews during

their investigation of the crimes.    His lies to the grand jury

were, of course, perjury, but perjury is adequately taken into

account by Application Note 3(b).    His lies to the FBI agents

during the interviews were not perjury, but fell into the

category of statements considered by Application Notes 3(g) and

4(b), both of which consider the appropriateness of an upward

adjustment when the defendant makes false statements to

investigating officers.   Together they demonstrate that an

adjustment is appropriate only when the statements made by the

defendant obstruct the prosecution of the "instant offense,"

which, as we have said in Belletiere, is limited to the offense

of conviction.   The Commission has apparently decided that an

upward adjustment for false statements to law enforcement

officers not pertaining to the offense of conviction would not be

appropriate.   The district court's departure was therefore

impermissible.



                                8
            The result we reach is regrettable.   We believe that

Woods should have been punished for the harm that he caused in

misleading the government and the grand jury.     Woods cut a deal

with the government apparently to avoid prosecution for the five

or six other armored truck robberies in which he may have been

involved.    As a critical part of his plea bargain, he agreed to

cooperate with the FBI's investigation into the other robberies,

including the Liberty Bank robbery.    He not only provided little

help as part of the agreement, but his false statements held up a

government investigation eight months and potentially shielded

two members of the robbery ring from prosecution.    By all

accounts, Woods' conduct amounted to an obstruction of justice.

            But we are bound by the language of § 3C1.1 and its

application notes.    We do not fully understand the basis for the

Commission's limitation on the use of obstruction of justice.3 We

3
As far as we can tell, the obstruction of justice adjustment
appears to be limited to conduct obstructing the "instant
offense" because the Commission wanted to protect the defendant's
right against self incrimination, see U.S.S.G. § 3C1.1,
Application Note 1, and believed that minor lies about other
crimes could be adequately into account within the applicable
guideline range, see U.S.S.G. § 3C1.1, Application Note 2.
Neither of these concerns would be implicated when a defendant
misleads police officers about crimes for which he might have
used a plea agreement to insulate himself from prosecution. As a
result, there seems to be little reason not to give an
enhancement under such circumstances.
          One possible explanation for the outcome in this case
would be that § 3C1.1 is not meant to affect the plea bargaining
process and therefore is not meant to remedy breaches of plea
agreements. Cf. U.S.S.G. § 3C1.1, Application Note 1 (refusal to
enter a plea is not a basis for application of this provision).
The Commission might have felt that breaches of plea agreements
are best dealt with in other ways. For example, the government
could have rescinded the agreement and prosecuted Woods on the
crimes mentioned in the plea agreement as well as for the other

                                 9
urge the Commission to redraft the section to make the adjustment

applicable in a case such as this one, or, at the very least, to

clarify why it should not be applicable.4

           The judgment of the district court will be reversed,

and the case remanded for resentencing consistent with this

opinion.

                    _________________________




robberies, perjury, and obstruction of justice. In this case the
government chose not to take such action and instead sought only
the upward departure. See Government's Sentencing Memorandum at
11 ("the government has decided to merely seek the upward
departure described herein rather than pursue additional
prosecutions"). But such an option was possible (and indeed may
remain).
4
 We note that this suggestion accords with the clear import of
the Sentencing Reform Act and the Guidelines themselves. The
Guidelines are part of an evolutionary process, see United States
Sentencing Commission Annual Report 5 (1991), and should be
informed by rulings of the District Courts and Court of Appeals,
particularly in the area of departures, for they play a critical
role in the ongoing process begun by the Sentencing Reform Act.
The Commission has invited the federal bench to comment on
glitches in the Guidelines and the need for revision so that it
may amend the guidelines appropriately. See U.S.S.G. Ch. 1 Pt. A
§§ 4(b), 5 (emphasizing that the Commission will review cases to
pinpoint where revisions are appropriate); cf. United States v.
Blackston, 940 F.2d 877, 893 (3d Cir. 1991) (pointing out that
the Commission sought feedback from judges with respect to the
question of revocation of probation and supervised release),
cert. denied, 112 S. Ct. 611, 116 L. Ed. 2d 634 (1991); see also
28 U.S.C. § 994(o) ("the Commission shall consult with
authorities on . . . various aspects of the Federal criminal
justice system").


                                10
