F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 28 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 03-6289
vs. (D.C. No. 03-CR-111-M)
(W.D. Okla.)
JIMMY LYNN HORN,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and TYMKOVICH, Circuit Judges.
Petitioner-Appellant Jimmy Lynn Horn appeals from his sentence upon
conviction of being a felon in possession of firearms, 18 U.S.C. § 922(g)(1). Mr.
Horn pled guilty and was sentenced to 75 months imprisonment and three years
supervised release. On appeal, he argues that the district court improperly
enhanced his sentence for obstruction of justice and that he was improperly
denied a downward adjustment to his offense level for acceptance of
responsibility. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
§ 3742(a)(1). We remand with instructions for the district court to vacate the
sentence and resentence.
Background
Following his arrest, Mr. Horn wrote a letter to his girlfriend, Sandra Goad.
In the letter, he stated that he “had one shot out of [conviction] and that’s if [his
second girlfriend] Mary [Smith] will say she sold [the guns] to Bobby and say I
was just there when it happened . . . I will have to put it to her and see what she
says. She is the only chance I got . . . So if you can do damage control over
everyone, please do, whatch [sic] out for Dave & Sherri or they will snitch us
out.”
The district court imposed a two-level enhancement under U.S.S.G. § 3C1.1
for obstruction of justice based on the letter and refused to grant a downward
adjustment based on acceptance of responsibility under § 3E1.1.
Discussion
A. Obstruction of Justice
Section 3C1.1 of the Sentencing Guidelines provides for a two-level
enhancement where a “defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of the
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investigation, prosecution, or sentencing of the instant offense.” U.S.S.G.
§ 3C1.1. Application note 4 provides an example of such conduct: “committing,
suborning, or attempting to suborn perjury.” Id. § 3C1.1, comment (n.4(b)).
“We have held that attempting to influence the testimony of a potential
witness can form the basis for an upward departure for obstruction of justice.”
United States v. Hernandez, 967 F.2d 456, 459 (10th Cir. 1992). The district
court found that the language in the letter to Ms. Goad constituted an indirect
attempt to obstruct or impede the administration of justice and thus applied the
enhancement. We review a district court’s factual determination to enhance the
sentence for obstruction of justice for clear error. United States v. Guzman, 318
F.3d 1191, 1197 (10th Cir. 2003).
Mr. Horn argues that his drafting and mailing of the letter, shortly after his
arrest, but which predated his guilty plea by approximately six months, fell short
of the “substantial step” required to constitute an attempt to suborn perjury. He
argues that while Ms. Goad was aware of the existence of Ms. Smith, Ms. Smith
did not know about Ms. Goad or Ms. Goad’s relationship with Mr. Horn. In fact,
Mr. Horn argues that he sought to prevent Ms. Smith from learning of his second
girlfriend to avoid possibly disastrous results. Thus, he claims that the letter to
Ms. Goad could not be construed as a request for Ms. Goad to ask Ms. Smith to
alter her testimony. Moreover, Mr. Horn argues that he was only “daydreaming”
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about the prospect of someone testifying falsely on his behalf. He cites the
letter’s non-specific future orientation: he “will have to put it to her,” meaning
that sometime in the future he will ask Ms. Smith to testify falsely. Because Mr.
Horn never made such a request of Ms. Smith, he argues that this falls short of
the “substantial step” requirement for attempt. Finally, he argues that his
statement regarding “damage control” cannot be considered an attempt to suborn
perjury because, as he testified at the district court, this was only a request for
Ms. Goad to prevent Dave and Sherri from speaking with Ms. Smith.
The mere intention to commit a specified crime, by itself, does not amount
to an attempt. United States v. Ramirez, 348 F.3d 1175, 1180 (10th Cir. 2003)
(citing United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir. 1979)).
Rather, the defendant must have the intent to commit a particular crime and
perform some overt act which would normally result in the commission of the
particular crime. Monholland, 607 F.2d at 1318; see also United States v.
Sullivan, 919 F.2d 1403, 1429 (10th Cir. 1990) (requiring criminal intent and a
“substantial step” toward commission of the offense).
The district court found that Mr. Horn had the criminal intent to obstruct
justice by means of the statements in the letter, and we do not find such an
interpretation to be clearly erroneous. As to the “substantial step” requirement,
the government relies heavily upon United States v. Downing, No. 94-8075, 1995
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WL 410155, at *1 (10th Cir. July 5, 1995) (unpublished), in which the defendant
was found to have obstructed justice by writing a letter to a friend, asking the
friend to murder the informant who testified before the grand jury and who would
have testified for the government at trial. The instant case is distinguishable.
Here, Mr. Horn never specifically requested that Ms. Goad speak to Ms. Smith,
and, in fact, he did not desire any communication between the two girlfriends.
Rather, Mr. Horn stated that he would have to “put it to [Ms. Smith] and see what
she says.” Thus, this portion of the letter amounted to little more than a hopeful
wish for exoneration and a statement of his future intent to convince Ms. Smith to
commit perjury. Any plans to suborn perjury or otherwise obstruct justice were
only in their planning stages and clearly were not embarked upon with the
language of the letter.
In fact, the only specific request made by Mr. Horn in the letter is that Ms.
Smith “do damage control over everyone, [and] whatch [sic] out for Dave &
Sherri or they will snitch us out.” Although this language can be construed as a
request of Ms. Goad, Mr. Horn only asked that she prevent Dave and Sherri from
reporting any transgressions to Ms. Smith. This request falls far short of a
“substantial step” toward suborning perjury or obstructing the administration of
justice. Accordingly, the district court’s enhancement was clearly erroneous.
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B. Acceptance of Responsibility
Mr. Horn argues that the district court erred in refusing to award a two-
level downward adjustment for acceptance of responsibility pursuant to § 3E1.1
of the Sentencing Guidelines. As the district court relied on its obstruction of
justice finding to deny the requested downward departure for acceptance of
responsibility, the district court should review the request anew on remand.
Finally, on September 13, 2004, Mr. Horn filed a Fed. R. App. P. 28(j)
supplemental authority letter seeking to raise (for the first time) a Sixth
Amendment challenge to his sentence based on the Supreme Court’s decision in
Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). Prior to the letter,
Mr. Horn did not challenge the district court’s ability to determine the facts
resulting in his sentence calculation. We have previously refused to consider an
issue asserted for the first time in a Rule 28(j) letter. See United States v.
Kimler, 335 F.3d 1132, 1138 n.6 (10th Cir. 2003). In that Mr. Horn did not seek
permission to file a brief properly raising the Blakely issue, we decline to
consider the matter further. See United States v. Maldonado-Ramires, ___ F.3d
___, No. 03-1438, 2004 WL 2181755, at *3 n.1 (10th Cir. Sept. 29, 2004).
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REMANDED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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