UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4541
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEON OXENDINE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (04-cr-41-1)
Submitted: June 15, 2007 Decided: August 10, 2007
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dennis H. Sullivan, Jr., THE SULLIVAN LAW FIRM, P.C., Wilmington,
North Carolina, for Appellant. George E.B. Holding, United States
Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leon Oxendine was convicted by a jury of witness
tampering, 18 U.S.C.A. § 1512(b)(3) (West Supp. 2007) (Count One);
making a false statement in a matter being investigated by the
Federal Bureau of Investigation (FBI), 18 U.S.C.A. § 1001 (West
2000 & Supp. 2007) (Count Two); and making a false declaration
under oath before a grand jury, 18 U.S.C. § 1623 (2000) (Counts
Three through Seven). Oxendine was sentenced to a term of fifty-
one months imprisonment. On appeal, he contests the district
court’s decision to enhance his sentence for substantial
interference with the administration of justice, U.S. Sentencing
Guidelines Manual § 2J1.2(b)(2) (2004) (Obstruction of Justice),
and for having a leadership role, USSG § 3B1.1(a). We affirm.
Oxendine was a lieutenant in the Lumberton, North
Carolina, police department, and the head of the Selective
Enforcement Team (SET), when he obtained a search warrant for a
house at 11 Albion Street based on false evidence of a controlled
purchase of drugs there from James Adams. The confidential
informant actually bought the drugs from a different person at a
different place, facts known to Oxendine when he applied for the
warrant. In addition, the confidential informant had planted a
computer disk containing an image of a counterfeit $100 bill at 11
Albion Street earlier the same day, at Oxendine’s direction. When
the search warrant was executed, the disk was seized from a shelf
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in the bathroom, where the confidential informant told Oxendine he
had put it, and Oxendine then caused a federal investigation to be
started, which was focused on Adams’ supposed counterfeiting
activity. Adams was in fact a drug dealer, and was arrested during
the search, outside the house at 11 Albion Street, in possession of
a variety of drugs.
The counterfeiting investigation had not progressed very
far when state investigative agents learned that the computer disk
had been planted at Oxendine’s direction. Two of the SET officers
were interviewed in December 2002. Before they were questioned,
Oxendine counseled them not to cooperate, and they did not reveal
what actually happened prior to the search. Oxendine was
questioned in February 2003, but did not admit any wrongdoing.
Around this time, one of the officers began cooperating with
authorities and recorded a conversation with Oxendine and two
involved officers on February 14, 2003. Oxendine testified before
a grand jury in August 2003, and denied that he directed the
informant to plant the disk at 11 Albion Street, discussed such
conduct, admitted to others such conduct, or knew about such
conduct. Oxendine was tried and convicted in 2004 of witness
tampering, making a false statement, and making false declarations
to the grand jury.
At sentencing, the district court adopted the presentence
report, which applied a base offense level of 14 under USSG
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§ 2J1.2, and added an enhancement of three levels for substantial
interference with the administration of justice under
§ 2J1.2(b)(2), a four-level adjustment for a leadership role under
USSG § 3B1.1, and two levels for abuse of a position of trust under
USSG § 3B1.3. The final offense level was 23. Oxendine was in
criminal history category I. His advisory guideline range was 46-
57 months. The district court overruled Oxendine’s objections to
the enhancement for substantial interference with the
administration of justice and the leadership role adjustment and
imposed a sentence of fifty-one months imprisonment.
On appeal, Oxendine first challenges the district court’s
determination that his offense resulted in substantial interference
with the administration of justice. As defined in Application Note
1 to § 2J1.2, substantial interference with the administration of
justice “includes a premature or improper termination of a felony
investigation; an indictment, verdict, or any judicial
determination based upon perjury, false testimony, or other false
evidence; or the unnecessary expenditure of substantial
governmental or court resources.” The district court’s
determination that Oxendine’s false statements and witness
tampering resulted in “the unnecessary expenditure of substantial
government and court resources,” is reviewed for clear error.
United States v. Dudley, 941 F.2d 260, 265 (4th Cir. 1991).
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The government argues that the enhancement applied
because government resources were unnecessarily expended as a
result of Oxendine’s having caused a federal investigation to be
started based on false evidence, as well as the subsequent
investigation that followed Oxendine’s false statements to the
agents. We are of the view that the initial counterfeiting
investigation, and the conduct that caused it, is not relevant
conduct, given that Oxendine was not convicted of planting false
evidence, only of lying about it and directing others to lie.
Under USSG § 1B1.3(a)(1), a defendant is responsible for his own
conduct, and the conduct of others in a joint criminal activity,
“that occurred during the commission of the offense of conviction,
in preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense.” The conduct
that caused the initial investigation of Adams’ alleged
counterfeiting was none of these. Moreover, because the offenses
of conviction were not “of a character for which § 3D1.2(d) would
require grouping of multiple counts,” in this case relevant conduct
does not include “all acts and omissions described in subdivisions
(1)(A) and (1)(B) . . . that were part of the same course of
conduct or common scheme or plan as the offense of conviction.”
See USSG § 1B1.3(a)(2).
Thus, although the dismissal of drug charges against
Adams because Oxendine’s involvement in the search of the Albion
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Street house and his planting of false evidence of counterfeiting
compromised the drug case constitutes an improper termination of a
felony investigation, this determination is based on conduct by
Oxendine which was not relevant conduct under USSG § 1B1.3, and
thus, should not have been considered.
However, the false statements given by Oxendine and
Jordan required additional investigation and, ultimately,
Oxendine’s trial and conviction. This constituted an “unnecessary
expenditure of substantial governmental or court resources,” which
supports the enhancement. USSG § 2J1.2, comment. (n.1). Moreover,
after Oxendine’s conviction, other persons in whose cases Oxendine
had been involved requested new trials. This was evidence of
interference with the administration of justice which could be
attributed, at least in part, to the witness tampering, false
statements, and false grand jury testimony which led to Oxendine’s
prosecution. Oxendine’s lack of truthfulness during the SBI and
FBI investigation of the conduct of the SET further compromised his
credibility, and thus had a serious effect on the administration of
justice.
Oxendine maintains that the evidence of substantial
interference with the administration of justice did not have
sufficient indicia of reliability to support its probable accuracy.
This argument is belied by the trial record. He also claims that
his conduct amounted to no more than obstruction of justice.
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However, the enhancement is designed to punish more severely those
instances of obstruction of justice which cause greater disruption
in the administration of justice. United States v. Tankersley, 296
F.3d 620, 623-24 (7th Cir. 2002). We conclude that the district
court did not clearly err in making the enhancement in his case.
Oxendine also contends that he was not a leader because
his offenses were singular in nature, that is, committed only by
him. He argues that the evidence that he influenced another
officer to conceal the planting of the computer disk does not
justify the adjustment because it happened only once. The district
court’s determination that the defendant was a leader or organizer
in the offense is a factual issue that is reviewed for clear error.
United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002). The
evidence at trial established that Oxendine counseled all the
officers who knew about the planting of the computer disk to
conceal what they knew, and he continued to do so, as shown in the
recorded conversation with three involved officers on February 14,
2003. Consequently, the district court did not clearly err in
finding that Oxendine led others to obstruct justice.
We therefore affirm the sentence imposed by the district
court. 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
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