UNITED STATES COURT OF APPEALS
Filed 6/11/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 95-6259
v. W.D. Oklahoma
JERRY DON WOODS, (D.C. No. CR-94-31-A)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Jerry Don Woods appeals his guideline sentence of sixty-three months
imprisonment and a $75,000 fine, imposed following his guilty plea to three counts of
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
mail fraud in violation of 18 U.S.C. § 1341. He contends that the district court erred by
imposing a two-level upward adjustment for obstruction of justice and by refusing to
grant a three-level downward adjustment for acceptance of responsibility. We affirm.
A. Obstructing or Impeding the Administration of Justice
Woods contends the district court erred by enhancing his sentence by two levels
for obstruction of justice pursuant to USSG §3C1.1. This section provides for an
enhancement “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice during the investigation, prosecution, or
sentencing of the instant offense.” Id. “[T]hreatening, intimidating, or otherwise
unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or
attempting to do so,” is the type of conduct that can justify an enhancement. Id.,
comment. (n.3(a)); see also United States v. Edwards, 69 F.3d 419, 440-41 (10th Cir.
1995) (threatening a witness can justify an enhancement for obstruction of justice),
petitions for cert. filed, 64 U.S.L.W. 3593 (Feb. 23, 1996) (No. 95-1355), (Feb. 29, 1996)
(No. 95-8147), (Mar. 4, 1996) (No. 95-8134); United States v. Hollis, 971 F.2d 1441,
1460 (10th Cir. 1992) (same), cert. denied, 507 U.S. 985 (1993).
The district court based the obstruction of justice enhancement upon testimony
given by Perry Gilstrap, an oil field driller for a couple of Woods’ oil well projects;
Steven Miller, another driller involved in Woods’ oil well projects; and Special Agent
-2-
David Swanson of the FBI concerning threats made by Woods over the phone. On
March 2, 1992, exactly two years prior to Woods’ indictment, Woods called Gilstrap,
instructing him to turn off certain oil wells. Woods went into a rage and made a series of
serious threats, however, when Gilstrap admitted that he had talked to the FBI.
Appellant’s App. R. Vol. I, Tab 8. Gilstrap then called Miller to discuss his conversation
with Woods. Gilstrap and Miller’s discussion was interrupted when Woods called again,
and Gilstrap provided for a three-way telephone conversation. Woods then made
additional threats, warning both of them not to talk to the FBI, screaming that he wanted
them to shut in the wells, and demanding they get off his lease.1 At sentencing, Swanson
testified that these two conversations were attempts by Woods to impede the
investigation. Id., Tab 7, at 25.
On appeal, Woods concedes that he was in a rage and threatened Gilstrap and
Miller, but argues his rage was directed at “Gilstrap shutting down the wells . . . and not
. . . regarding his conversations with the FBI.” Appellant’s Br. at 7. He further contends
that because the phone calls were two years prior to indictment and “did not impede the
investigation, and . . . were the only such statements alleged to be made to any potential
witnesses, [that] these two telephone conversations should not be considered obstruction
1
Miller informed Swanson that Woods made the following threats: “I’m going to
come up and smash your faces in. . . . I know where you guys live, and Perry, I know
your address in Broken Arrow. . . . You can take this as a threat. . . . I don’t care who is
up there, the Sheriff and the FBI, I’ll do what I want.” Appellant’s App. R. Vol. I, Tab 9.
-3-
of justice.” Id. at 8-9. The district court found, however, that Woods “is not credible, in
his testimony that he recalls no threats pertaining to the FBI or a pending investigation
when he spoke to Mr. Gilstrap and later with Mr. Gilstrap and Mr. Miller both.”
Appellant’s App. Vol. I, Tab 10, at 40. Specifically, the court found “that Mr. Woods is
not truthful in his statement that he had no inkling of an Indictment, as of the Second of
March, the time of the conversation.” Id. These factual determinations by the district
court are not clearly erroneous. See United States v. Nelson, 54 F.3d 1540, 1543 (10th
Cir. 1995). The district court, therefore, properly adjusted Woods’ offense level upward
pursuant to USSG §3C1.1.
B. Acceptance of Responsibility
Woods also asserts that he was improperly denied a three-level downward
adjustment for his acceptance of responsibility. The offense level should be reduced by
two levels “[i]f the defendant clearly demonstrates acceptance of responsibility for his
offense.” USSG §3E1.1(a). A defendant may qualify for an additional one level
reduction by “timely notifying the authorities of his intention to enter a plea of guilty,
thereby permitting the government to avoid preparing for trial and permitting the court to
allocate its resources efficiently.” USSG §3E1.1(b)(2).
Woods admits his pre-arrest actions “may not have been consistent with
acceptance of responsibility.” Appellant’s Br. at 12. These actions include: (1) fleeing
-4-
the jurisdiction, without telling anyone where he was going, after being advised by his
attorney that he was under indictment and “not to flee,” Appellee’s Suppl. App. at 1-3; (2)
fraudulently withdrawing $113,000.00, with his brother, John Woods, from their
business, Landmark Limited, prior to fleeing, Appellant’s App., R. Vol. II, PSR, ¶ 61; id.,
R. Vol. I, Tab 2, at 3; id., Tab 6, at 42; and (3) possessing a driver’s license and Social
Security Card in the name of William Marion Warren, Jr. upon his arrest in Cathedral
City, California. Appellant’s App., R. Vol. II, PSR, ¶ 63. Despite these actions, Woods
argues that the district court erred in denying him a reduction for acceptance of
responsibility because after his arrest he agreed to plead guilty and “did everything
possible to accept responsibility.” Appellant’s Br. at 3.
The district court addressed Woods’ contention concerning acceptance of
responsibility by noting the emphasis that the Application Notes under §3E1.1 place on
timeliness, stating:
[T]he acceptance of responsibility here was not timely but it occurred at a
point where not only was the defendant caught red-handed in a situation in
which his conduct was virtually indefensible; but, in which, if he had gone
to trial he would have met the powerful inference to be drawn from flight
and the use of assumed names in California. . . . [t]he defendant was not
really situated to mount a very powerful defense.
Appellant’s App. R. Vol. I, Tab 2, at 2-3.
The district court also relied on Application Note 4 under §3E1.1, in concluding
that “it’s a rare case in which there can simultaneously be an upward adjustment for
-5-
obstruction of justice and a downward adjustment for accepting responsibility.” Id., at 3.2
The district court then determined that this was “not such a case.” Id. We cannot say that
this determination was clearly erroneous. See, e.g., United States v. Spedalieri, 910 F.2d
707, 712 (10th Cir. 1990).
For the reasons stated above, we AFFIRM the sentence imposed by the district
court.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
Application Note 4 under §3E1.1 reads as follows:
2
4. Conduct resulting in an enhancement under §3C1.1 (Obstructing or
Impeding the Administration of Justice) ordinarily indicates that the
defendant has not accepted responsibility for his criminal conduct. There
may, however, be extraordinary cases in which adjustments under both
§§3C1.1 and 3E1.1 may apply.
USSG §3E1.1, comment. (n.4).
-6-