           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    United States v. Baggett                     No. 01-6379
        ELECTRONIC CITATION: 2003 FED App. 0311P (6th Cir.)
                    File Name: 03a0311p.06                                DISTRICT OF TENNESSEE, Memphis, Tennessee, for
                                                                          Appellant. Tracy L. Berry, ASSISTANT UNITED STATES
                                                                          ATTORNEY, Memphis, Tennessee, for Appellee.
UNITED STATES COURT OF APPEALS                                            ON BRIEF: Stephen B. Shankman, OFFICE OF THE
                                                                          FEDERAL PUBLIC DEFENDER FOR THE WESTERN
                  FOR THE SIXTH CIRCUIT                                   DISTRICT OF TENNESSEE, Memphis, Tennessee, for
                    _________________                                     Appellant. Tracy L. Berry, ASSISTANT UNITED STATES
                                                                          ATTORNEY, Memphis, Tennessee, for Appellee.
 UNITED STATES OF AMERICA , X
            Plaintiff-Appellee, -                                                             _________________
                                  -
                                  -  No. 01-6379                                                  OPINION
           v.                     -                                                           _________________
                                   >
                                  ,                                          SARGUS, District Judge. Defendant-Appellant Donald
 DONALD LYNN BAGGETT,             -
         Defendant-Appellant. -                                           Baggett was convicted by a jury on charges of interstate
                                                                          domestic violence, in violation of 18 U.S.C. § 2261(a)(2). On
                                 N                                        appeal, Baggett asserts that the district court erred in
      Appeal from the United States District Court                        computing his sentence by improperly applying a six-level
   for the Western District of Tennessee at Memphis.                      enhancement based on a finding that the victim suffered
   No. 99-20120—Bernice B. Donald, District Judge.                        permanent or life-threatening bodily injury as defined in
                                                                          United States Sentencing Guidelines (“U.S.S.G.”)
                   Argued: February 7, 2003                               § 2A2.2(b)(3) and a two-level enhancement for obstruction
                                                                          of justice under U.S.S.G. § 3C1.1. Although the first issue
             Decided and Filed: August 28, 2003                           involving the degree of injury to the victim presents a
                                                                          straight-forward question of fact that requires little analysis,
    Before: DAUGHTREY and COLE, Circuit Judges;                           the more important issue in this case is whether conduct that
              SARGUS, District Judge.*                                    starts before the commencement of prosecution, but continues
                                                                          while the prosecution is in progress, can be used to support an
                      _________________                                   enhancement for obstruction of justice under U.S.S.G.
                                                                          § 3C1.1. While we reluctantly hold that pre-investigation
                            COUNSEL                                       threats to a victim cannot satisfy the temporal element of the
                                                                          guideline as it is presently structured, we nonetheless affirm
ARGUED: Needum L. Germany, OFFICE OF THE                                  the imposition of the two-level enhancement for obstruction
FEDERAL PUBLIC DEFENDER FOR THE WESTERN                                   of justice.


    *
      The Honorable Edmund A. Sargus, Jr., United States District Judge
for the Southern District of Ohio, sitting by designation.

                                  1
No. 01-6379                     United States v. Baggett      3    4       United States v. Baggett                           No. 01-6379

                               I.                                  his wife that “he would understand it if she failed to appear in
                                                                   court.” The letters included a number of references to Mrs.
   In May of 1999, Baggett, a professional truck driver, took      Baggett’s daughter, Erica, the same child Appellant
his wife, Catherine Baggett, on a round trip from Tennessee        threatened to kill if Mrs. Baggett pursued domestic violence
to California. On May 14, 1999, Mrs. Baggett overheard her         charges against him. Appellant also wrote at least one letter
husband speaking to another truck driver about the physical        to Erica during his pretrial incarceration. The clear
characteristics of an attractive female in a pickup truck          implication, according to the presentence report, is that the
traveling on the same road. An argument between the                letters were sent to Mrs. Baggett in an attempt to discourage
Baggetts then ensued and escalated into a violent                  her from appearing in court.
confrontation during which Appellant grabbed his wife by the
hair, “bounced her head off the steering wheel,” tore her shirt,                                      II.
and choked her. Baggett then pulled the truck to the side of
the road, took his wife into the sleeper portion of the truck,       Baggett was originally charged in a two-count indictment,
and continued slapping, punching, kicking and choking her.         the first count alleging interstate domestic violence, in
Later in the day, Baggett again assaulted his wife while she       violation of 18 U.S.C. § 2261(a)(2), and the second
remained in the sleeper.                                           kidnapping, in violation of 18 U.S.C. § 1201. The jury
                                                                   returned a verdict of guilty as to the interstate domestic
  At some point during the trip, Mrs. Baggett testified,           violence count, while acquitting Baggett on the charge of
Appellant told her that if she “ever tried to get him for          kidnapping.1
domestic violence or assault that he would kill [her] and he
would kill [her] baby, too.” Early the next morning,                 At sentencing, the district court determined that under
Appellant drove the truck to the final destination in Memphis,     U.S.S.G. § 2A6.2, entitled “Stalking or Domestic Violence,”
Tennessee. According to Mrs. Baggett, at the conclusion of         a cross-reference was appropriate as directed under subpart
the trip, her head was “full of lumps,” she could not see or       (c)(1). The court then applied the guideline for aggravated
hear, had “bruises everywhere,” a split lip, a broken finger       assault under U.S.S.G. § 2A2.2. The district court also found
and cracked teeth. Patricia Cantrell, the receiving clerk at the   that Appellant should receive a six-point enhancement
Kroger Distribution Center where the trip concluded, testified     because the assault involved permanent or life-threatening
that Mrs. Baggett was “bruised from head to toe, . . . her         bodily injury under U.S.S.G. § 2A2.2(b)(3)(C).
knuckles were all bruised up, blue, black. She was – her nose
was full of blood, her hair was just all over her head. She was      In addition, the district court also found that Baggett
red all over her face. She had red marks around her throat.”       engaged in obstruction of justice as recommended by the
Mrs. Baggett was subsequently taken to the hospital and
received treatment for her injuries, including kidney damage.
   As noted in the presentence report, while awaiting trial,           1
                                                                         After both verdicts were returned, the district judge entered a
Appellant wrote at least 20 letters to his wife. Although the      judgment of acquittal on both co unts. On app eal, this Court reversed the
letters contained apologies and affectionate remarks, the          judgment of acquittal and remanded the case to the district court for
missives also expressed concern to Mrs. Baggett that she not       reinstatement of the jury’s verdict of guilty as to the interstate domestic
have to relive the “nightmare” in court. Baggett also assured      violence charge. United States v. Ba gge tt, 251 F.3d 10 87, 1096 (6th Cir.
                                                                   2001).
No. 01-6379                       United States v. Baggett        5   6      United States v. Baggett                    No. 01-6379

presentence report. The district court thereupon sentenced              The Sentencing Guidelines further provide a definition of
Appellant to a term of imprisonment of 51 months.                     permanent or life-threatening bodily injury in Application
                                                                      Note 1(g), U.S.S.G. § 1B1.1 to include:
                                III.
                                                                          injury involving a substantial risk of death; loss or
  Baggett first contends that the district court erred in                 substantial impairment of the function of a bodily
applying a six-level enhancement based upon a determination               member, organ, or mental faculty that is likely to be
that the victim suffered permanent or life-threatening bodily             permanent; or an obvious disfigurement that is likely to
injury. We review findings of fact made by the district court             be permanent. In the case of a kidnapping, for example,
for clear error, while the trial court’s interpretation of a              maltreatment to a life-threatening degree (e.g., by denial
sentencing guideline is reviewed de novo. United States v.                of food or medical care) would constitute life-threatening
Carter, 283 F.3d 755, 757 (6th Cir. 2002).                                bodily injury.
   The Sentencing Guideline analysis begins with U.S.S.G.               The district court reviewed the extensive injuries sustained
§ 2A6.2, which specifically references the crime of conviction        by Mrs. Baggett and emphasized the fractured finger, the
in this case, interstate domestic violence, 18 U.S.C. § 2261.         cracked tooth and substantial contusions and bruises as
This guideline also provides that “[i]f the offense involved the      depicted in various photographs. The court also recounted the
commission of another criminal offense, apply the offense             testimony from the witness at trial that Mrs. Baggett literally
guideline from Chapter Two, Part A (Offenses Against the              crawled into the Kroger Distribution Plant with very visible
Person) most applicable to that other criminal offense, if the        injuries together with spatial disorientation. Further, while
resulting offense level is greater than that determined above.”       the district court was not persuaded that Mrs. Baggett’s
U.S.S.G. § 2A6.2(c)(1).                                               kidney problems were caused by the assault, the court
                                                                      concluded that the combination of the various conditions
  The district court determined that Appellant’s conduct              together with severe bleeding, bruising and broken bones
involved an aggravated assault and that the cross-reference           could reasonably be viewed as amounting to a life-threatening
therefore applied. While this determination is not challenged         bodily injury.
by Baggett, he does contend that under U.S.S.G. § 2A2.2, the
district court incorrectly applied a six-level enhancement for           As we have held, “‘where there are two permissible views
the infliction of permanent or life-threatening bodily injury.        of the evidence, the factfinder’s choice between them cannot
                                                                      be clearly erroneous.’” Pledger v. United States, 236 F.3d
  Under U.S.S.G. § 2A2.2(b)(3), “[i]f the victim sustained            315, 320-21 (6th Cir. 2000) (quoting Anderson v. City of
bodily injury, increase the offense level according to the            Bessemer City, 470 U.S. 564, 567 (1985)). The analysis here
seriousness of the injury:                                            is highly fact specific. As noted in United States v. Hamm, 13
                                                                      F.3d 1126, 1128 (7th Cir. 1994), “the district court is by far
Degree of Bo dily Injury                          Increase in Level
                                                                      best-suited to assess that myriad of factors observable in
(C) Permanent or Life-Threatening Bodily Injury      add 6            hearing the evidence presented.”
No. 01-6379                     United States v. Baggett      7    8      United States v. Baggett                    No. 01-6379

  We conclude that the finding by the district court that          enforcement authorities constitutes obstruction of justice.
Baggett inflicted permanent or life-threatening bodily injury      The guideline at issue is not so straightforward. Section
to the victim was not clearly erroneous.                           3C1.1 provides as follows:
                              IV.                                      If (A) the defendant willfully obstructed or impeded, or
                                                                       attempted to obstruct or impede, the administration of
  Baggett also contends that the district court erred in               justice during the course of the investigation,
assessing a two-point enhancement for obstruction of justice           prosecution, or sentencing of the instant offense of
under U.S.S.G. § 3C1.1. As we have recently explained, a               conviction, and (B) the obstructive conduct related to (i)
district court’s imposition of an enhancement for obstruction          the defendant’s offense of conviction and any relevant
of justice is reviewed under a trifurcated standard. United            conduct; or (ii) a closely related offense, increase the
States v. Camejo, 333 F.3d 669, 674-75 (6th Cir. 2003). First,         offense level by 2 levels.
we review the factual determinations made by the district
court for clear error. Id. at 675 (citing United States v.         U.S.S.G. § 3C1.1 (emphasis added).
McDonald, 165 F.3d 1032, 1033-34 (6th Cir. 1999)). Second,
the determination that certain conduct constitutes obstruction       The literal language of Section 3C1.1 requires that a
of justice, which is a mixed question of law and fact, is          defendant engage in obstruction of justice “during the course
reviewed de novo. Id. Third, because the application of the        of the investigation, prosecution, or sentencing of the instant
obstruction enhancement is non-discretionary, the actual           offense of conviction.” Consequently, a defendant who
imposition of the enhancement is reviewed de novo. Id.             engages in obstructive conduct prior to the investigation,
                                                                   prosecution, or sentencing of the instant offense is not subject
  At the sentencing hearing, the prosecution argued that there     to the enhancement.
were two separate bases for applying the obstruction of justice
enhancement. First, the prosecution contended that the letters       This result is not unintended. In 1998, in Amendment 581,
written by Baggett to his wife and stepdaughter were intended      the United States Sentencing Commission modified the
to encourage her not to appear at the trial. In addition, the      language found in Section 3C1.1 to clarify that the term
Government also argued that Baggett’s threat to kill Mrs.          “instant offense” refers either to the defendant’s offense of
Baggett and her child if she attempted to charge him with          conviction or to a closely-related case. The amendment
domestic violence amounted to tampering with the witness.          further clarified what the Commission termed “the temporal
                                                                   element of the obstruction guideline (i.e., that the obstructive
  The district court rejected the Government’s argument that       conduct must occur during the investigation, prosecution, or
the letters written by Baggett amounted to obstruction of          sentencing of the defendant’s offense of conviction).” The
justice.    However, the court found that the threats              Commission also added Application Note 1 which states as
communicated to Mrs. Baggett, before Appellant was under           follows:
investigation for interstate domestic violence, constituted
obstruction of justice.                                                This adjustment applies if the defendant’s obstructive
                                                                       conduct (A) occurred during the course of the
   A common sense approach to the issue would dictate that             investigation, prosecution, or sentencing of the
a defendant’s threat to kill a victim if she reported him to law       defendant’s instant offense of conviction, and (B) related
No. 01-6379                      United States v. Baggett        9    10       United States v. Baggett                           No. 01-6379

  to (i) the defendant’s offense of conviction and any                obstruction enhancement for conduct not directly related to
  relevant conduct; or (ii) an otherwise closely related case,        the offense of conviction. The temporal requirement serves
  such as that of a co-defendant.                                     to require, at least in an indirect sense, a nexus between the
                                                                      acts of obstruction and the crime of conviction. With no
   Following the Amendment, this Circuit has adhered to the           causal link to the crime of conviction, obstructive conduct
requirement that the enhancement for obstruction of justice           could conceivably include acts wholly unrelated to the crime
may only be imposed if the defendant engaged in obstructive           of conviction or conduct that should have been the subject of
conduct “with knowledge that he or she is the subject of an           separate criminal charges. As this case demonstrates,
investigation or with the ‘correct belief’ that an investigation      however, in at least some cases, a defendant may clearly
is ‘probably underway.’” United States v. Brown, 237 F.3d             obstruct justice with regard to the offense of conviction
625, 628 (6th Cir. 2001) (citations omitted). Similarly, in           through conduct occurring before the commencement of an
United States v. Boyd, 312 F.3d 213, 217 (6th Cir. 2002), we          investigation or prosecution. Here, a causal link between the
reaffirmed the requirement that a defendant have knowledge            crime of conviction and the obstructive conduct is clearly
of an investigation before the obstruction of justice                 present. A compelling argument can be made that the
enhancement may be imposed. It is axiomatic that we must              enhancement should apply as to acts designed to actually
now follow the circuit precedent. Sixth Cir. Internal                 prevent investigation or prosecution as to the crime of
Operating P. [Admin. R.] 206(c); United States v.                     conviction.2
Washington, 127 F.3d 510, 517 (6th Cir. 1997).
                                                                        Although we must hold that the threats made by Baggett to
    Applying this strictly temporal analysis, we are forced to        his wife while she remained in his tractor-trailer cannot
conclude that the obstruction enhancement cannot be                   support the obstruction enhancement, we further conclude
sustained on the basis articulated by the district court because      that the record contains more than sufficient facts to establish
Baggett did not threaten to kill his wife and her daughter            obstructive conduct occurring after the investigation and
“during the course of the investigation, prosecution, or              prosecution began. While in custody and awaiting trial,
sentencing of the defendant’s instant offense of conviction           Baggett sent no fewer than 20 letters to his wife and one to
. . . or . . . [in] an otherwise closely related case, such as that   his stepdaughter. We agree with the conclusion in the
of a co-defendant.” We reach this conclusion reluctantly,             presentence report that these letters, which contained
however, because it seems counter-intuitive to say that threats       numerous references to Baggett’s stepdaughter, the same
made by a defendant to prevent a victim from reporting                child he threatened to kill if Mrs. Baggett went to the
conduct that later results in a conviction do not constitute          authorities, were attempts to discourage Mrs. Baggett from
obstruction of justice. In this case, Appellant clearly acted to      appearing in court. Further, these letters, which followed
prevent the actual investigation and prosecution of the offense       upon the original threat to kill Mrs. Baggett if she went to the
of conviction. It is difficult to imagine a more compelling set
of circumstances upon which the enhancement for obstruction
of justice should apply.                                                   2
                                                                            Prior to the 1998 Amendments, the Co urt of Appe als for the Seventh
                                                                      Circuit in United States v. Lallemand, 989 F.2d 93 6, 938 (7th Cir. 1993),
  Nevertheless, we also recognize that the Sentencing                 noted that obstructive behavior can begin prior to an investigation. As an
Commission was correctly concerned that an expansive                  example, the court noted the following scenerio: “Suppose the defendant
interpretation of U.S.S.G. § 3C1.1 could result in an                 had told [a third party] that in the event the victim went to the authorities
                                                                      [the third party] was to kill the victim and any other witnesses.” Id.
No. 01-6379                    United States v. Baggett    11

police, represent a continuum of conduct designed to obstruct
justice. The letter-writing continued long after Baggett’s
arrest on charges leading to the offense of conviction.
   We therefore sustain the imposition of the enhancement for
obstruction of justice on grounds other than those adopted by
the district court, as permitted by United States v. Bonds, 12
F.3d 540, 557 (6th Cir. 1994), based upon a continuum of
obstructive conduct, beginning with the Appellant’s threat to
kill his wife if she reported his crimes to authorities and
concluding with the subsequent letters written to her and her
stepdaughter while he was awaiting trial on these charges.
                             V.
  Based upon the foregoing, the sentence imposed by the
district court is AFFIRMED.
