UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4863
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY LEE SIMMONS,
Defendant - Appellant.
No. 05-4019
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY LEE SIMMONS, a/k/a JJ,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CR-03-626; CR-02-289)
Submitted: June 5, 2006 Decided: June 29, 2006
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Jonathan
S. Gasser, United States Attorney, Mary Gordon Baker, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Johnny Lee Simmons appeals his sentence imposed after
resentencing after pleading guilty to violations of 18 U.S.C.
§§ 922, 924(a)(2)(1) (2000), unlawful transport of firearms, and 18
U.S.C. § 371 (2000), conspiracy to defraud the United States. At
resentencing the district court continued to apply a two-level
enhancement for obstruction of justice under U.S. Sentencing
Guidelines Manual § 3C1.1 (2003). Simmons received a fifty-seven
month term of imprisonment. On appeal, Simmons argues that the
district court erred in applying the enhancement for obstruction of
justice. Finding no error, we affirm.
On appeal, Simmons primarily focuses on whether the
obstruction of justice enhancement was applicable when he was
arrested despite the fact that he gave officers a false
identification. He also argues that the district court did not
make a factual finding that providing a false identification
significantly hindered the investigation or prosecution of his
case. The Government replies that at the resentencing it
incorporated and adopted the factual findings from the first
sentencing hearing at which the court made the necessary findings
to apply the enhancement.
Simmons was indicted on the fraud charge in March 2002.
An agent working on the matter, Darrell Watkins, testified that the
agents working the case began looking for Simmons soon after the
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indictment issued. In summer or early fall 2002, a cooperating
witness informed Watkins that he spotted Simmons driving an
automobile in North Charleston, South Carolina. The North
Charleston police were dispatched to Simmons’ location and
interrogated Simmons. He produced an identification for Anthony
Brown. Because Simmons produced another identification, the police
let him leave the scene after they took a photograph of him.
Police posted the photograph on Crimestoppers, in newspapers, and
on television. Watkins continued to interview witnesses and
otherwise continued the investigation.
Another cooperating witness informed Watkins that Simmons
was living in Sumter, South Carolina, with Kashawn Drayton.
Investigators called the Sumter police department. Sumter notified
Watkins that they had a search warrant for Drayton’s residence. In
December 2002, Watkins accompanied the local officers to serve the
federal warrants on Simmons and Drayton. At the residence, Simmons
again identified himself as Anthony Brown and produced an
identification card for Brown. Drayton was arrested at the same
time on a federal complaint for conspiracy in the fraud for which
Simmons was indicted. She later broke down and told officers that
they had the right individual, and that Simmons falsely identified
himself as Brown. On the day of his arrest, Simmons later properly
identified himself.
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At the first sentencing hearing, the court imposed the
obstruction enhancement stating that “the defendant [] has the
problem with the Anthony Brown identification twice, and after
being questioned by the North Charleston Police and after being
served with a warrant, he still persisted in being Anthony Brown in
an effort to not be arrested and processed.” At the second
sentencing hearing, the court heard the Government’s position as to
the two instances, found that the two instances were connected, and
held that giving a false statement to a law enforcement officer,
when the purpose of the interaction is to arrest the individual, is
obstruction.
Section 3C1.1 directs a sentencing court to increase a
defendant’s offense level by two levels if the defendant “willfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the course of the investigation,
prosecution, or sentencing of the instant offense of conviction,
and the obstructive conduct related to the defendant’s offense of
conviction and any relevant conduct.” United States v. Hudson, 272
F.3d 260, 263 (4th Cir. 2001) (citing USSG § 3C1.1 (subdividing
letters and numbers omitted)). The Application Notes for § 3C1.1
explain that “providing a materially false statement to a law
enforcement officer that significantly obstructed or impeded the
official investigation or prosecution of the instant offense”
amounts to the type of conduct for which the enhancement applies.
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See USSG § 3C1.1, cmt. n.4(g). Further, this court held in Hudson,
272 F.3d at 263, that the district court erred by failing to apply
USSG § 3C1.1 when the defendant, who was released on bond pending
sentencing, failed to appear for scheduled meetings with his
probation officer and actively eluded police for more than six
months while using aliases and false identification. While Simmons
did not fail to appear for probation meetings as Hudson did, his
use of the Brown identification when he was stopped in summer or
early fall of 2002 resulted in a delay of at least a few months
prior to his arrest.
However, the USSG § 3C1.1 Application Notes also state
that “providing a false name or identification document at arrest,
except where such conduct actually resulted in a significant
hindrance to the investigation or prosecution of the instant
offense” and “making false statements, not under oath, to law
enforcement officers” are examples of conduct which does not merit
the enhancement for obstruction. USSG § 3C1.1 cmt. n.5(a), (b).
Because Simmons’ conduct did not involve a single instance of
providing false identification at the time of arrest only,* and his
*
The fact that the police arrested Simmons at the time that
the search warrant was executed at Drayton’s residence, when he
presented the Brown identification a second time is irrelevant,
because the enhancement applies to attempted, as well as actual,
obstruction. See United States v. Hicks, 948 F.2d 877, 884-85 (4th
Cir. 1991); see also United States v. Lagasse, 87 F.3d 18, 24 (1st
Cir. 1996) (enhancement applied where witness intimidated prior to
sentencing even though he had nothing to contribute to the
sentencing process); United States v. Cotts, 14 F.3d 300, 307-08
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conduct resulted in a significant delay in his arrest, it was not
error for the district court to conclude that Simmons’ conduct
constituted obstruction of justice under the Guidelines.
We therefore affirm the sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
(7th Cir. 1994) (finding enhancement proper where defendant plotted
to kill a fictional informant).
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