           Case: 18-14215   Date Filed: 07/18/2019   Page: 1 of 16


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-14215
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 4:17-cr-10026-JLK-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MISTY MARIE HOWARD,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (July 18, 2019)

Before TJOFLAT, JILL PRYOR and JULIE CARNES, Circuit Judges.

PER CURIAM:
              Case: 18-14215     Date Filed: 07/18/2019     Page: 2 of 16


      Defendant Misty Marie Howard appeals her 24-month sentence, which was

imposed after she pled guilty to one count of conspiring to possess with intent to

distribute detectable amounts of crack cocaine and oxycodone. On appeal, Howard

argues that in calculating her offense level the district court erred in refusing to

apply a two-level downward adjustment for her minor role and in applying a two-

level enhancement for obstruction of justice. After careful review, we conclude

that the district court did not err in refusing to apply the minor role enhancement.

Regarding the obstruction-of-justice enhancement, we must remand because the

district court failed to provide sufficient findings for us to review its decision. We

thus affirm in part and vacate in part.

                                I.        BACKGROUND

A.    The Drug Transactions

      This case arises out of four transactions in which Howard and her boyfriend,

co-defendant Willie Evens, sold crack cocaine and oxycodone to a buyer who was

working for the government as a confidential source. Before the first transaction,

Evens spoke with the buyer on the phone. They agreed to meet so that the buyer

could purchase oxycodone pills and crack cocaine. Howard accompanied Evens to

the meeting where the buyer paid $1,670 for the drugs.




                                            2
              Case: 18-14215    Date Filed: 07/18/2019    Page: 3 of 16


      Over the course of several phone calls and text messages, Evens and the

buyer arranged a second drug transaction. When Evens, Howard, and the buyer

met for a second time, the buyer paid Evens $1,750 for oxycodone pills.

      For the third transaction, Evens and the buyer again exchanged phone calls

and text messages. Again, Howard accompanied Evens to the meeting. At the

meeting, the buyer paid Evens $1,750 in cash. Howard then passed him a cigarette

box that contained oxycodone pills.

      Shortly after the third transaction, Evens was arrested on a federal firearms

charge. After Evens’s arrest, Howard contacted the buyer and told him that she

still was selling narcotics. Over a series of text messages, she arranged a fourth

transaction. Howard met the buyer in a parking lot where he paid her $370 for 10

oxycodone pills.

B.    Procedural History

      A grand jury charged Howard and Evens with one count of conspiracy to

possess with intent to distribute a controlled substance as well as substantive

counts of possession with intent to distribute a controlled substance. Based on the

indictment, arrest warrants were issued for Howard and Evens. Evens, who was

already in custody on the firearms charge, was promptly arraigned. Evens pled

guilty to the conspiracy count in exchange for the government dismissing the

remaining counts.


                                          3
              Case: 18-14215    Date Filed: 07/18/2019    Page: 4 of 16


      Howard was given two opportunities to self surrender but instead fled from

law enforcement. Approximately six months after the first self-surrender date,

Howard was arrested by the United States Marshals Service. She subsequently

pled guilty to the conspiracy count in exchange for the government dismissing the

remaining charges.

      In advance of sentencing, the probation office prepared a presentence

investigation report (“PSI”). Based on the quantity of drugs involved in the

offense, the probation officer found Howard’s base offense level was 16. The

probation officer then applied a two-level enhancement for obstruction of justice.

The probation officer stated that the enhancement was warranted because Howard

had been given two opportunities to self surrender but failed to turn herself in. The

probation officer also concluded that Howard made a false statement, explaining

that when she failed to show up for the first self-surrender date, she was called

from court, and she reported that she was on her way but was having car trouble.

Despite making this statement, Howard never showed up to court. The probation

officer also applied a two-level reduction for acceptance of responsibility, yielding

a total offense level of 16. Based on the total offense level and Howard’s criminal

history category of II, the probation officer calculated Howard’s total guideline

range as 24 to 30 months’ imprisonment.




                                          4
                Case: 18-14215       Date Filed: 07/18/2019       Page: 5 of 16


       Howard raised several objections to the PSI. First, she asserted that the

probation officer should have applied a two-level reduction to her offense level

under U.S.S.G. § 3B1.2 because she played only a minor role in the offense.

Second, she argued that the probation officer should not have applied the two-level

enhancement for obstruction of justice under U.S.S.G. § 3C1.1. Howard

acknowledged that she fled prior to her arrest but argued that her conduct did not

constitute obstruction of justice. Third, she requested that the court grant her a

downward variance to avoid an unwarranted sentencing disparity with Evens, who

had been sentenced to only 18 months’ imprisonment for his role in the drug

transaction.1

       The government filed a written response to Howard’s objections. In

addressing the obstruction-of-justice enhancement, the government provided a

more detailed narrative about the circumstances surrounding Howard’s failure to

self surrender. The government explained that after Howard was charged, she

retained counsel who contacted the government and requested that she be allowed

to self surrender. The government agreed and set a specific time for her surrender,

arranging it so that she could make her initial appearance before a magistrate judge




       1
          At the time Evens was sentenced, he was serving a separate 70-month sentence on the
federal firearms arms charge, for which he had been arrested after the third drug transaction. The
district court ordered that his 18-month sentence in this case was to run concurrently with the
sentence for the firearms offense.
                                                5
              Case: 18-14215    Date Filed: 07/18/2019    Page: 6 of 16


on the same day. But on the agreed-upon date, Howard failed to appear. That day,

she told her attorney that she was having car trouble but was on her way to court.

Her attorney then communicated this statement to the magistrate judge. Although

the magistrate judge, prosecutor, case agents, and marshals agreed to wait for

Howard, she never came to court. When Department of Homeland Security

(“DHS”) agents subsequently were unable to locate her, her case was transferred to

fugitive status.

      Several months later, Howard was contacted by a DHS agent, and she again

agreed to self surrender. On the morning when she was supposed to turn herself in,

Howard texted the agent, stating that she was waiting for an Uber car, then later

texted that she was taking a bus. When the agent called Howard and offered to

pick her up, she hung up on him. She never showed up to meet the agent. Several

days later, she was arrested.

      After the government filed its response, the probation officer prepared an

addendum to the PSI. In the addendum, the officer responded to Howard’s

objections. Regarding the obstruction-of-justice enhancement, the addendum

largely repeated the information in the initial PSI about how Howard had provided

false information when she stated on her first self-surrender date that she had car

trouble but was on her way to court. The addendum, like the initial PSI, noted that




                                          6
               Case: 18-14215    Date Filed: 07/18/2019   Page: 7 of 16


she was given a second opportunity to self surrender, but it identified no false

statement that she made in connection with her second failure to self surrender.

      At the sentencing hearing, Howard renewed her objections to the PSI, which

the district court overruled. In overruling the objection to the obstruction

enhancement, the district court adopted the reasoning in the addendum to the PSI.

Accordingly, the district court found that Howard had twice failed to self surrender

and made a false statement when, on the first scheduled self-surrender date, she

reported that she was on her way to court and was having car trouble but then did

not show up. Neither the addendum nor the court offered any explanation about

why the false statement was material or how it significantly impeded the

prosecution.

      The court then considered Howard’s objection regarding the minor-role

reduction. The court found that she had more than a minor role in the criminal

activity. The court noted that she was present at each drug transaction and

coordinated the last transaction on her own.

      The court adopted the PSI’s guidelines calculation, which yielded a

recommendation of 24 to 30 months’ imprisonment. Howard renewed her request

for a downward variance, arguing that her sentence should be reduced to avoid an

unwarranted disparity with Evens’s 18-month sentence. The court denied the




                                          7
              Case: 18-14215      Date Filed: 07/18/2019    Page: 8 of 16


variance. After considering the § 3553(a) factors, the court imposed a sentence of

24 months’ imprisonment. This is Howard’s appeal.

                                    II.    ANALYSIS

      Howard argues that the district court made two errors in applying the

Sentencing Guidelines. She contends that the court erred in refusing to apply a

downward adjustment for her minor role and in applying an enhancement for

obstruction of justice. We consider these arguments in turn.

A.    The District Court Did Not Clearly Err in Refusing to Apply a Minor-
      Role Adjustment.

      Howard first argues that the district court erred in denying her a two-level

reduction in offense level under U.S.S.G. § 3B1.2(b) because of her minor role in

the offense. Because the district court’s determination of a defendant’s role in the

offense is a factual finding, we review it only for clear error. United States v.

Rodriguez de Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). “A factual

finding is clearly erroneous when, upon review of the evidence, we are left with a

definite and firm conviction a mistake has been made.” United States v.

Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015). But a “district court’s choice

between two permissible views of the evidence as to the defendant’s role in the

offense will rarely constitute clear error so long as the basis of the trial court’s

decision is supported by the record and does not involve a misapplication of a rule

of law.” United States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016)
                                            8
              Case: 18-14215     Date Filed: 07/18/2019    Page: 9 of 16


(alteration adopted) (internal quotation marks omitted). We cannot say that the

district court’s determination that Howard had more than a minor role was clearly

erroneous.

      The Sentencing Guidelines provide for a two-level reduction to a

defendant’s offense level if she was a minor participant in the criminal activity.

See U.S.S.G. § 3B1.2(b). A minor participant is one “who is less culpable than

most other participants in the criminal activity, but whose role could not be

described as minimal.” Id. § 3B1.2, cmt. n.5. The question of whether a defendant

is entitled to a minor-role reduction is “based on the totality of the circumstances

and involves a determination that is heavily dependent upon the facts of the

particular case.” Id. § 3B1.2, cmt. n.3(C). The defendant has the burden of

proving her minor role in the offense by a preponderance of the evidence.

Rodriguez de Varon, 175 F.3d at 939.

      Two principles guide the determination of whether a defendant played a

minor role in a criminal scheme: (1) “the defendant’s role in the relevant conduct

for which she has been held accountable at sentencing,” and (2) “her role as

compared to that of other participants in her relevant conduct.” Id. at 940. In

addition, commentary to § 3B1.2 provides additional guidance on when a minor

role reduction is appropriate, directing district courts to consider: (1) the degree of

the defendant’s understanding of the scope and structure of the crime; (2) the


                                           9
             Case: 18-14215     Date Filed: 07/18/2019    Page: 10 of 16


degree of the defendant’s participation in the planning or organization of the crime;

(3) the degree of the defendant’s decision-making authority; (4) the nature and

extent of the defendant’s participation in the crime, including the acts she

performed and how much discretion and responsibility she had; and (5) how much

the defendant stood to benefit from the crime. U.S.S.G. § 3B1.2, cmt. n.3(C).

      Here, the district court did not clearly err when it found that Howard had

more than a minor role. After noting that Howard was present for all the

transactions, the district court explained that she coordinated the fourth transaction

on her own and was the sole recipient of the proceeds from that transaction. Given

the record evidence about Howard’s planning and role in the fourth transaction, we

are not left with a definite and firm conviction that a mistake was made when the

district court denied her request for a minor-role reduction.

      Howard nonetheless argues that she was entitled to a minor-role reduction

because her conduct was minor when compared to Evens’s larger role. It’s true

that Evens, not Howard, arranged the first three drug transactions and accepted the

buyer’s payments. But the fact that Evens played a larger role than Howard does

not mean that she played a minor role; we have recognized that for some schemes

none of the participants will qualify as a minor or minimal participant. See

Rodriguez de Varon, 175 F.3d at 944.




                                          10
             Case: 18-14215      Date Filed: 07/18/2019    Page: 11 of 16


B.    The District Court Failed to Make Sufficient Factual Findings to Allow
      for Appellate Review of the Obstruction Enhancement.

      Howard also challenges the district court’s application of a two-level

enhancement for obstruction of justice under U.S.S.G. § 3C1.1. With respect to a

sentencing enhancement for obstruction of justice, we review for clear error the

district court’s factual findings and de novo its application of the factual findings to

the Sentencing Guidelines. United States v. Watts, 896 F.3d 1245, 1254 (11th Cir.

2018).

      Section 3C1.1 states:

      If (1) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice with respect to the
      investigation, prosecution, or sentencing of the instant offense of
      conviction, and (2) the obstructive conduct related to (A) the
      defendant’s offense of conviction and any relevant conduct; or (B) a
      closely related offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1. Here, we must consider whether the district court erred in

applying the enhancement on the basis that Howard made a materially false

statement to a law enforcement officer that impeded her prosecution. We accept

that Howard’s act of making a false statement to a law enforcement officer could

justify application of the obstruction-of-justice enhancement. But we must vacate

and remand because the district court failed to make sufficient factual findings

about why Howard’s false statement was material and how her false statement, as

opposed to the fact that she failed to self surrender, impeded her prosecution.


                                          11
               Case: 18-14215        Date Filed: 07/18/2019        Page: 12 of 16


       The commentary to § 3C1.1 tells us that that merely “avoiding or fleeing

from arrest” generally does not qualify as obstruction of justice. U.S.S.G. § 3C1.1,

cmt. n.5(D). 2 The district court nonetheless concluded that the obstruction

enhancement was warranted because Howard made a false statement when she

reported, on the first scheduled self-surrender date, that she was having car trouble.

The commentary states that a defendant engages in obstruction of justice if she

“provide[s] a materially false statement to a law enforcement officer that

significantly obstructed or impeded the official investigation or prosecution of the

instant offense.” Id. § 3C1.1, cmt. n.4(G). A material statement is one that “if

believed, would tend to influence or affect the issue under determination.” Id. §

3C1.1, cmt. n.6. And to establish that the defendant’s conduct obstructed or

impeded the investigation or prosecution, the government must show that “it

fruitlessly spent investigation or prosecution resources due to [the defendant’s]

untruthfulness.” United States v. Banks, 347 F.3d 1266, 1270-71 (11th Cir. 2003). 3


       2
          The commentary also states that “willfully failing to appear, as ordered, for a judicial
proceeding” constitutes obstruction. U.S.S.G. § 3C1.1, cmt. n.4(E). To the extent that the
district court relied on this standard to apply the enhancement, we cannot say that it justifies
applying the enhancement given that there is no indication that Howard was actually ordered to
appear for either agreed-upon self-surrender date.
       3
          In Banks, we announced this standard in the context of addressing whether an
obstruction enhancement was warranted based upon a separate portion of the commentary to
§ 3C1.1, which provides that an obstruction enhancement is warranted if the defendant provided
a false name or identification document at arrest so long as the defendant’s conduct caused a
“significant hindrance to the investigation or prosecution of the instant offense.” U.S.S.G.
§ 3C1.1, cmt. n.5(a). But later in Banks we applied the same “significant hinderance” standard
to determine whether the defendant’s false statement to a law enforcement officer “significantly
                                                12
               Case: 18-14215       Date Filed: 07/18/2019      Page: 13 of 16


       At sentencing, the district court, adopting the probation officer’s addendum

to the PSI, found that Howard had made a false statement to a law enforcement

officer when, on the first scheduled self-surrender date, she falsely stated that she

was having car trouble but was on her way to court. But the district court provided

no explanation as to how this false statement was material or impeded the

investigation or prosecution. Given the district court’s failure to include such

findings, our en banc decision in United States v. Alpert, 28 F.3d 1104 (11th Cir.

1994) (en banc), dictates that we vacate and remand this case so that the district

court can make the required factual findings about how Howard’s false statement

was material and how her particular false statement—as distinguished from the fact

that she failed to surrender—impeded her prosecution.

       In Alpert, we considered whether the district court erred in imposing an

obstruction of justice enhancement when a couple fled prior to arrest. After the

couple had been questioned by the government about potential credit card fraud,

they entered into plea negotiations, which progressed to the point of discussing

their potential sentences and the application of specific enhancements under the

Guidelines. Id. at 1106. While the plea negotiations were ongoing, the

government refrained from seeking an indictment. Id. Before the last scheduled




obstructed or impeded the official investigation or prosecution.” See Banks, 347 F.3d at 1270
n.2.
                                               13
               Case: 18-14215       Date Filed: 07/18/2019       Page: 14 of 16


negotiation session, the couple disappeared. Id. After the couple fled, the

government presented the case to the grand jury and secured an indictment. Id.

Several months after fleeing, the couple was found in California and arrested. Id.

They ultimately pled guilty to the fraud charges. Id. At sentencing, the district

court applied an enhancement for obstruction of justice, finding that the couple’s

“disappearance and subsequent activities slowed down the criminal process.” Id.

       On appeal, we vacated the sentences. We began by explaining that the

couple’s act of fleeing while they were engaged in plea negotiations did not

constitute obstruction of justice. Id. at 1107. We stated that the enhancement

“does not apply to persons engaged in criminal activity who learn of an

investigation into that activity and simply disappear to avoid arrest, without

more.” 4 Id. We then considered whether the couple had engaged in additional

conduct that would warrant application of the enhancement. See id. We observed

that the obstruction enhancement would have been warranted if either defendant

had made a materially false statement to a law enforcement officer that

significantly obstructed or impeded the investigation or prosecution. Id. But we



       4
          In Alpert, we characterized the couple’s actions as “simply disappear[ing] to avoid
arrest, without more,” even though the couple disappeared during ongoing plea negotiations and
the government, in reliance on those negotiations, had refrained from securing an indictment. Id.
at 1106-07. Consistent with Alpert, we must treat Howard’s act of fleeing after negotiating her
self surrender as simply disappearing to avoid arrest, even though the government had delayed
arresting her in reliance on her promise to self surrender.

                                               14
             Case: 18-14215     Date Filed: 07/18/2019   Page: 15 of 16


concluded that we could not engage in “meaningful appellate review” of whether

the enhancement was warranted on this basis because the district court made

insufficient factual findings: the court failed to make findings that the defendants

had made a false statement, the statement was material, and the statement

significantly obstructed or impeded the investigation. Id. at 1107-08. We

remanded the case so that the district court could make such factual findings,

explaining that on remand the court “should note specifically what each defendant

did, why that conduct warrants the enhancement, and, if applicable, how that

conduct actually hindered the investigation or prosecution of the offense.” Id.

      Under Alpert, the district court’s findings here were insufficient to allow us

to engage in meaningful appellate review of the court’s decision to apply the

obstruction-of-justice enhancement. At sentencing, when the district court

overruled Howard’s objection, it adopted the reasoning in the probation officer’s

PSI addendum about why the enhancement applied. Although the addendum to the

PSI indicated that Howard made a false statement on the date of the first scheduled

self surrender when she reported having car trouble but being on her way to court,

it included no explanation as to why Howard’s false statement was material or how

it impeded the investigation or prosecution. In the absence of clear factual findings

from the district court about why the statement was material or how her conduct

actually hindered the investigation or prosecution, we cannot assess whether the


                                         15
               Case: 18-14215       Date Filed: 07/18/2019       Page: 16 of 16


enhancement was appropriately applied and therefore must vacate the sentence.

See Alpert, 28 F.3d at 1108. If on remand, the district court decides to apply the

enhancement, it must make particularized factual findings as to materiality and

explain how the false statement hindered the prosecution.5

                                     III.   CONCLUSION

       For the reasons set forth above, we vacate Howard’s sentence and remand

for resentencing consistent with this opinion. 6

       VACATED AND REMANDED.




       5
          We note that Howard also could have obstructed justice if she “provid[ed] materially
false information to a . . . magistrate judge.” U.S.S.G. § 3C1.1, cmt. n.4(F). To the extent that
the district court imposed the obstruction-of-justice enhancement on this ground, we vacate
because we again conclude that the district court failed to provide sufficient factual findings to
allow us to assess whether the enhancement was appropriately applied. If on remand the district
court chooses to apply the obstruction enhancement on the basis that Howard made a false
statement to a magistrate judge, the district court not only must identify the particular false
statement that Howard made to the magistrate judge but also must explain why the statement was
material. See Alpert, 28 F.3d at 1108.
       6
        Howard also argues her sentence was substantively unreasonable because there was an
unwarranted disparity between her 24-month sentence and Evens’s 18-month sentence. Because
we vacate and remand on the obstruction-of-justice enhancement, we do not reach the question
of whether the sentence imposed was substantively reasonable.

                                               16
