The Eighth Circuit in United States v. Parker, 2017 WL 400282 (8th Cir. 2017) held that conduct that occurred after the offense of conviction and after the trial does not constitute obstruction of justice.
Bender, a defendant, was charged with conspiracy to possess firearms. Bender was a member of One-Nine, a Minnesota gang, that was in a feud with the Taliban, a rival gang. Another member of the gang, Black, was convicted of illegally possessing a firearm and conspiring to illegally possess firearms. The conviction was partly based on the testimony of two other gang members.
The day after Black’s conviction, the Bender (Black’s codefendant) called a friend from prison by using a borrowed telephone identification code. Bender instructed his friend to send e-mails to two individuals in the Rush City Correctional Facility, the location where the witnesses were housed. The e-mails that Bender sent were to notify everyone that the witnesses had testified and should be injured in retaliation. One of the e-mails was intercepted by prison staff and the other e-mail reached its intended recipient and was later found in his belongings. Bender’s action of sending these two e-mails garnered him a new charge for conspiracy to retaliate against government witnesses.
At the defendant’s sentencing, the district court calculated a Sentencing Guidelines range of 210 to 262 months. In order to set this range, the court grouped the Bender’s two sentences, the firearm conspiracy charge and conspiracy to retaliate against government witnesses charge, and selected the range provided by the conviction with the highest Guidelines range. The lower court applied a two-level enhancement for obstruction of justice, to which the defendant objected.
On appeal, Bender argued that the obstruction of justice enhancement did not apply to his case. The Eighth Circuit reversed, citing United States v. Galaviz, 687 F.3d 1042 (8th Cir. 2012). Even though the defendant did not bring Galaviz to the district court’s attention, the Eighth Circuit noted that it controlled in this case and vacated the defendant’s sentence. The Eighth Circuit explained that even though the defendant conspired against witnesses in Black’s trial, the government was unable to establish that Bender believed that the witnesses would be used against him during sentencing and they were not actually used against him at all. The Eighth Circuit noted that the retaliation occurred the trials of both Black and Bender (codefendants) had concluded and therefore, Bender’s actions were not “intended to obstruct justice on the instant offense of conviction.” The court concluded that the defendant was properly prosecuted for retaliating against government witnesses, but the retaliation occurred after he and his codefendants had all been found guilty. Therefore, the obstruction-of-justice should not have applied when calculating defendant’s Guidelines range regarding his previously pleaded charge.
This case is significant because it establishes that conduct occurring after the offense of conviction may not be used to justify an obstruction of justice enhancement under U.S.S.G. §3C1.1 where the government cannot prove that it had any affect upon sentencing.