[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 17, 2010
No. 09-14557 JOHN LEY
________________________ CLERK
D. C. Docket No. 04-00153-CR-J-34-HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORD ALLEN NEWMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 17, 2010)
Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges.
MARTIN, Circuit Judge:
Clifford Allen Newman appeals his 33-month sentence imposed after
pleading guilty to one count of violating the International Parental Kidnapping
Crime Act (“IPKCA”), 18 U.S.C. § 1204. Mr. Newman argues that the district
court erroneously enhanced his sentence under United States Sentencing
Guidelines § 2J1.2(b)(2) and § 2J1.2(b)(3)(C). After review and oral argument, we
affirm the district court’s three-level enhancement under § 2J1.2(b)(2) because the
offense resulted in “substantial interference with the administration of justice,” but
we conclude the district court clearly erred in finding that the offense was
“otherwise extensive in scope, planning, or preparation.” We therefore reverse and
remand for resentencing consistent with this opinion.
I.
Clifford and Monica Newman were married in 1992 and she later gave birth
to a son. They divorced in 1996, and a Florida state court entered a decree
awarding primary residential custody of their son, then three years old, to Mrs.
Newman. Under the terms of the custody order, neither parent was permitted to
remove the child from Florida without written, notarized consent of the other
parent.
Shortly after the divorce decree was entered, Mr. Newman picked up his son
for a scheduled visitation but never returned the child to his mother. Instead, he
took the child to Yemen in violation of the state court’s decree in an effort to avoid
the court’s custody determination. Mr. Newman abducted his son because, in his
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words, he “could not just sit back and let [his] son be taken away,” he “wanted to
be his [son’s] father and [he] wanted to raise him, and they wouldn’t allow [him] to
do that here,” and contrary to the state court’s decision, he “knew what was best
for [his son].”
As a result of his actions, the Florida State Attorney’s Office charged Mr.
Newman with interference with custody in violation of Florida law and issued a
state arrest warrant. The whereabouts of the father and child remained unknown,
however, and he was never arrested or prosecuted on the state charges. Nearly
eight years would pass before Mr. Newman and the boy were located. During this
time, Mrs. Newman had no contact with her son.
In 2004, however, investigators got two breaks. First, authorities notified
the U.S. State Department that Mr. Newman crossed an international border
traveling on his United States passport. Second, Mr. Newman was arrested in
Dubai in the United Arab Emirates for auto theft and attempted robbery. Through
their investigation, federal law enforcement officers then learned that the child was
living with Mr. Newman’s second wife in Yemen. Shortly thereafter, Yemeni law
enforcement officers working in concert with federal agents took custody of the
child and a Yemeni court granted legal guardianship to the child’s maternal
grandmother. The grandmother then traveled with the child from Yemen to the
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United States, where he was reunited with his mother at the age of eleven.
Following his arrest in Dubai, Mr. Newman was indicted in the Middle
District of Florida and charged with one count of removing his child from, and
retaining his child outside of, the United States in violation of the IPKCA. Upon
his release from prison in Dubai five years later, Mr. Newman was returned to the
United States and immediately arrested. He pleaded guilty to the indictment
without a plea agreement.
The presentence report (“PSR”) prepared by the United States Probation
Office recommended that Mr. Newman’s sentence be enhanced under two
guidelines provisions. First, the PSR recommended a three-level increase under
U.S.S.G. § 2J1.2(b)(2) because the offense resulted in “substantial interference
with the administration of justice.” Second, the PSR recommended a two-level
enhancement under § 2J1.2(b)(3)(C) based on the probation officer’s finding that
the offense was “extensive in scope, planning, or preparation.” With a criminal
history category of III and a three-level decrease for acceptance of responsibility,
Mr. Newman’s guidelines range was 27 to 33 months.
Mr. Newman objected to both enhancements, but the district court overruled
his objections. Specifically, the district court found the enhancement for
substantial interference with the administration of justice applied based on Mr.
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Newman’s violation of the state court custody order. The district court also found
that Mr. Newman’s offense warranted an enhancement because it was extensive in
scope, planning, or preparation, based on the eight-year duration of the offense and
his flight to a country in the Middle East where it would be “extraordinarily
difficult” to locate and return the child. After hearing from Mrs. Newman,
argument from the parties, and Mr. Newman’s allocution, the district court
sentenced him to 33 months in prison. He now appeals.
II.
“We review the district court’s findings of fact for clear error and its
application of the Sentencing Guidelines de novo.” United States v. Lopez-Garcia,
565 F.3d 1306, 1323 (11th Cir. 2009). “For a factual finding to be clearly
erroneous, this court, after reviewing all of the evidence, must be left with a
definite and firm conviction that a mistake has been committed.” United States v.
Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (internal quotation marks
omitted).
III.
Congress enacted the International Parental Kidnapping Crime Act in 1993
to “deter the removal of children from the United States to foreign countries in
order to obstruct parental rights.” See H.R. Rep. No. 103-390, at 1 (1993),
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reprinted in 1993 U.S.C.C.A.N. 2419, 2419. The legislative history of the IPKCA
explains that the Act was intended as a response to issues left unaddressed by
international law:1
There is an international civil mechanism relating to [cases of
international parental kidnapping], the Hague Convention on
International Parental Child Abduction, for which Congress passed
implementing legislation in 1988. As a result of this convention, the
signatories will recognize the custody decrees of other signatories,
thereby facilitating the return of abducted children. However, most
countries are not signatories to the Convention, thus leaving
individual countries to take whatever legal unilateral action they can
to obtain the return of abducted children.
Id. at 3, 1993 U.S.C.A.A.N. at 2421; see also United States v. Fazal-Ur-Raheman-
Fazal, 355 F.3d 40, 44 (1st Cir. 2004); United States v. Amer, 110 F.3d 873,
881–82 (2d Cir. 1997) (explaining that the IPKCA was passed to “close the gap”
left by the many countries that are not signatories to the Hague Convention and to
deter abductions to “safe haven” countries). In furtherance of that objective, the
IPKCA makes it a federal felony for a parent to remove a child from the United
1
The Hague Convention on the Civil Aspects of International Child Abduction “is
designed ‘to protect children internationally from the harmful effects of their wrongful removal
or retention and to establish procedures to ensure their prompt return to the State of their habitual
residence, as well as to secure protection for rights of access.’” Baran v. Beaty, 526 F.3d 1340,
1344 (11th Cir. 2008) (quoting Hanley v. Roy, 485 F.3d 641, 644 (11th Cir. 2007)). When a
child has been wrongfully removed from his country of habitual residence, the Convention
through its implementing legislation, the International Child Abduction Remedies Act of 1988,
42 U.S.C. § 11603(b), “provides the non-abducting parent with a remedy of return, intended to
restore the parties to the pre-abduction status quo and deter parents from crossing borders in
search of a more sympathetic forum for child custody proceedings.” Id.
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States, or to retain outside the United States a child who has been in the United
States, with the intent to obstruct the other parent’s lawful exercise of his or her
parental rights. 18 U.S.C. § 1204(a).
Under the sentencing guidelines, violations of the IPKCA are assessed under
U.S.S.G. § 2J1.2, which applies to obstruction of justice offenses. See U.S.S.G.
app. A (statutory index). As explained above, the district court enhanced Mr.
Newman’s sentence by a total of five levels under § 2J1.2(b)(2) and
§ 2J1.2(b)(3)(C). Mr. Newman argues that application of both of these
enhancements was error. Each is addressed in turn.
A.
Section 2J1.2(b)(2) provides for a three-level increase if “the offense
resulted in substantial interference with the administration of justice.” U.S.S.G.
§ 2J1.2(b)(2). The phrase “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.” Id. § 2J1.2 cmt. n.1. Because the term
“‘includes’ is not exhaustive,” id. § 1B1.1 cmt. n.2, the definition of “substantial
interference with the administration of justice” in § 2J1.2 is not limited to the
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examples set out in the guidelines. See United States v. Probel, 214 F.3d 1285,
1288 (11th Cir. 2000) (describing the nonexhaustive nature of the term “includes”
in the context of U.S.S.G. § 2G2.2); Amer, 110 F.3d at 885 (“The term ‘includes’
clearly indicates that the subsequent listing of acts warranting this enhancement is
not exclusive, and that other acts—if similarly or even more disruptive of the
administration of justice—could serve as bases for the section 2J1.2(b)(2)
enhancement.”).
The district court found that Mr. Newman’s violation of the state court
custody decree substantially interfered with the administration of justice, justifying
the three-level enhancement. The district court believed that Mr. Newman’s
decision to abduct his child and secret him in the Middle East was motivated by his
dissatisfaction with the state court’s custody decision:
Here, the defendant had the opportunity to participate in proper legal
proceedings, to be heard, and to make his case. And then, dissatisfied
with the outcome, rather than perhaps appeal it or otherwise contest it
within the proper legal process, he chose to take the matter completely
outside the proper administration of justice. And the Court is of the
view that having done so, he did obstruct justice and he did
substantially interfere with the administration of justice, that being, if
nothing more, the orders of the State court with respect to the parental
rights and the care of the child. And so for that reason the Court finds
that the probation officer properly imposed the three-level
enhancement for obstruction of justice under 2J1.[2].
Mr. Newman argues that his violation of the state custody decree cannot, by
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itself, serve as the basis for this enhancement. According to Mr. Newman, the
IPKCA requires an abduction intended to interfere with the other parent’s legal
rights, and when two parents are divorced, a custody decree is merely the legal
mechanism by which those rights are established. Application of the enhancement
in this context, Mr. Newman argues, would result in a per se rule that the
enhancement applies in every § 1204(a) case where a custody order had been
issued. And this, he contends, is contrary to the Sentencing Commission’s intent
that enhancements based on specific characteristics of the offense should apply
only to “the more serious forms of obstruction.” We do not agree.
This Court has no binding precedent setting forth what constitutes
substantial interference with the administration of justice for purposes of applying
the § 2J1.2(b)(2) enhancement. We conclude, however, that Mr. Newman’s
violation of the custody decree supports application of the enhancement in this
case. The district court found that Mr. Newman was dissatisfied with the custody
order and, rather than challenge it through lawful channels, he subverted the legal
process and exercised a “self-help appeal” from state court’s decision. The district
court’s findings in this regard were plainly supported by the record. Indeed, Mr.
Newman admitted as much at the sentencing hearing. In our view, disregarding a
lawful state court custody order and removing a child in direct violation of that
9
order—all with the intent to circumvent the state court’s custody
determination—constitutes substantial interference with the administration of
justice within the meaning of § 2J1.2(b)(2).
Nor do we agree that our decision results in a per se rule that the
enhancement applies in all § 1204(b) cases where a custody order has been issued.
Contrary to Mr. Newman’s argument, it is not the bare existence of the custody
order that supports the enhancement in this case. Rather, it is the nexus between
Mr. Newman’s dissatisfaction with the lawful custody determination and his intent
to frustrate and avoid the judicial process—not just the order itself—that renders
§ 2J1.2(b)(2) applicable. That being so, Mr. Newman’s argument about blanket
application of the § 2J1.2(b)(2) enhancement to divorced parents based on the mere
existence of custody orders sweeps far too broadly.
Although there are surprisingly few reported decisions involving application
of the § 2J1.2(b)(2) enhancement in parental kidnapping cases, our conclusion is
supported by the Second Circuit’s decision in United States v. Amer, 110 F.3d 873
(2d Cir. 1997). In that case, the defendant and his wife physically (though not
legally) separated as a result of his abuse and the wife retained informal physical
custody of their three children. Id. at 876. When, despite his threats to kill her, the
defendant’s wife refused to take the children to Egypt, the defendant abducted the
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children and fled to Egypt just weeks before the mother obtained a custody order
granting her legal guardianship. Id. at 876–77. The defendant, who eventually
returned to the United States, was arrested and convicted by a jury of violating the
IPKCA. Id. at 877. The district court enhanced his sentence under § 2J1.2(b)(2)
based on its finding that, by abducting the children, the defendant “made certain
that [a judicial proceeding] would never be commenced” and that by “deem[ing]
himself the judge” he “made the decision” and “wholly ignored the lawful process,
and acting in the form of a vigilante, . . . took matters into his own hands.” Id. at
885. The Second Circuit affirmed, holding that the defendant’s “‘self-help’ act of
removing the children . . . could serve as a basis for this enhancement” because the
defendant’s actions “prevented proper legal proceedings from occurring by taking
matters completely outside the purview of the administration of justice.” Id.
As in Amer, here Mr. Newman’s actions were calculated to thwart the legal
custody process and to ensure that he, and not a judge with jurisdiction over
custody matters, would be the ultimate decisionmaker about who would retain
custody of his child. The district court did not err in enhancing Mr. Newman’s
sentence under § 2J1.2(b)(2).2
2
Because we conclude Mr. Newman’s interference with the state court’s decree is
sufficient to support the enhancement, we need not reach the issue of whether the government’s
evidence regarding the expenditure of resources in locating and returning the child would be
sufficient.
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B.
Mr. Newman also challenges the district court’s two-level enhancement
under § 2J1.2(b)(3). Section 2J1.2(b)(3) provides for a two-level enhancement if
“the offense . . . was otherwise extensive in scope, planning, or preparation.”
U.S.S.G. § 2J1.2(b)(3)(C). In applying this enhancement, the district court appears
to have focused primarily on the eight-year duration of the offense. And though it
is not entirely clear from the record, the district court may also have considered
that Mr. Newman selected the Middle East as his destination because it would be
“extraordinarily difficult” for authorities to locate and return the child. On the
record before us, the district court’s findings are clearly erroneous and must be
reversed.
Mr. Newman is correct that, to the extent the district court found that he
selected Yemen because it would be “extraordinarily difficult” to locate and return
the child, that finding was unsupported by the record. The government did not
present any evidence regarding either the difficulty of locating and returning a
child from that country or Mr. Newman’s intent to select it for that purpose. A
district court’s factual findings used to support a sentencing enhancement must be
based on reliable and specific evidence and cannot be based on speculation.
United States v. Cataldo, 171 F.3d 1316, 1321–22 (11th Cir. 1999) (explaining that
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courts “‘must not speculate concerning the existence of a fact which would permit
a more severe sentence under the guidelines’” (quoting United States v. Wilson,
993 F.2d 214, 218 (11th Cir. 1993))). As Mr. Newman points out, the only
competent evidence in the record indicates that he selected Yemen for religious
and cultural reasons. The district court committed clear error to the extent it found
that Mr. Newman brought his son to the Middle East because it would be difficult
for anyone to find him there.
The district court’s reliance on the eight-year duration of the offense to find
that it was “extensive in scope” was also error. Although we have found no case
directly on point, we hold that the duration of the offense is not equivalent to its
“scope” for purposes of § 2J1.2(b)(3)(C). Both our case law and other provisions
of the sentencing guidelines distinguish between the duration and scope of criminal
offenses. For example, § 2B1.1, which applies to theft, fraud, and property
offenses, directs the district court to “make a reasonable estimate of the loss”
caused by the offense. U.S.S.G. § 2B1.1 cmt. n.3(C). In making this estimate, the
guidelines instruct the district court to consider “available information . . . as
appropriate and practicable under the circumstances” including “general factors,
such as the scope and duration of the offense.” Id. (emphasis added). The
Commission’s decision to include consideration of both the “scope” and “duration”
13
of the offense under § 2B1.1, while at the same time omitting any consideration of
the “duration” of the offense from § 2J1.2(b)(3)(C), is significant. This is so
because identical terms in different guidelines are generally presumed to have the
same meaning in both provisions, and the disparate inclusion or exclusion of
language is presumed to be intentional and purposeful. See United States v. Perez,
366 F.3d 1178, 1182–83 (11th Cir. 2004) (collecting cases). We therefore presume
that the Commission said what it meant and meant what it said when it omitted the
duration of the offense from consideration under § 2J1.2(b)(3)(C).
Our case law applying other provisions of the sentencing guidelines supports
this interpretation. For example, in United States v. Holland, 22 F.3d 1040 (11th
Cir. 1994), we interpreted U.S.S.G. § 3B1.1, which applies if “the defendant was
an organizer or leader of a criminal activity that involved five or more participants
or was otherwise extensive.” See U.S.S.G. § 3B1.1(a). We held that in making the
“otherwise extensive” determination, district courts should consider factors
including both “the length and scope of the criminal activity.” Holland, 22 F.3d at
1046 (emphasis added). Other circuits agree that the scope of the offense and its
duration are separate factors to be considered. See, e.g., United States v. Arbour,
559 F.3d 50, 54 (1st Cir. 2009) (when determining whether a criminal activity is
“otherwise extensive” courts should consider “the totality of the circumstances,
14
including not only the number of participants but also the . . . scope . . . and
duration of the scheme” (quotations omitted)); United States v. Massey, 48 F.3d
1560, 1572 (10th Cir. 1995) (affirming a determination that a conspiracy was
“otherwise extensive” based on the district court’s finding that it was of “long
duration” and of “national scope”).
We have recognized a distinction between scope and duration in other
contexts as well. In distinguishing between a Terry stop3 and an arrest for Fourth
Amendment purposes, for example, we assess the scope of the stop and its duration
separately. See, e.g., United States v. Acosta, 363 F.3d 1141, 1146 (11th Cir.
2004) (explaining that to distinguish between a Terry stop and an arrest, we
consider “‘the law enforcement purposes served by the detention, the diligence
with which the police pursue the investigation, the scope and intrusiveness of the
detention, and the duration of the detention’” (quoting United States v. Gil, 204
F.3d 1347, 1351 (11th Cir. 2000))); see also United States v. Purcell, 236 F.3d
1274, 1277 (11th Cir. 2001) (differentiating between challenges to the duration of
a traffic stop and challenges to the scope of such a stop).
Given the consistent distinction between the terms “scope” and “duration” in
both the sentencing guidelines and our precedent, we conclude that the duration of
3
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).
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the offense cannot alone support a finding that it was “otherwise extensive in
scope” under § 2J1.2(b)(3)(C). Therefore, to the extent the district court found that
Mr. Newman’s offense was “extensive in scope” based on its eight-year duration,
the district court’s finding was clearly erroneous.
IV.
For these reasons, the district court’s enhancement of Mr. Newman’s
sentence under § 2J1.2(b)(2) is affirmed. The district court’s enhancement of Mr.
Newman’s sentence under § 2J1.2(b)(3)(C) is reversed and this case is remanded to
the district court for resentencing consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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