UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4742
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN EDWARD HESS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07-
cr-00574-RWT-1)
Submitted: September 30, 2010 Decided: November 18, 2010
Before AGEE, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Jonathan C. Su, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Edward Hess appeals his conviction and
168-month sentence for one count of possession with intent to
distribute a controlled substance analogue in violation of 21
U.S.C. § 841(a)(1) (2006). He argues his sentence was
unreasonable because the district court erred in calculating the
drug analogue quantity attributable to him, and erred in
imposing a two-level increase to his offense level for
obstruction of justice pursuant to U.S. Sentencing Guidelines
Manual § 3C1.1 (2008). We affirm.
When law enforcement executed a search warrant on
Hess’s home and storage unit, they discovered 86.32 liters of
1,4-butanediol (“1,4-B”) and 124.7 liters of gamma butyrolactone
(“GBL”) (both controlled substance analogues) in various
containers, including drinking bottles. Hess, who pled guilty
pursuant to a plea agreement, argued at sentencing that although
he sometimes illegally sold the chemicals as narcotics, his
usual use for the chemicals was to conduct experiments to
further his printing ventures.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
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After determining whether the district court properly calculated
the defendant’s advisory guideline range, we must decide whether
the district court considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. Lynn, 592 F.3d at
575-76; see United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (holding that, while the “individualized
assessment need not be elaborate or lengthy, . . . it must
provide a rationale tailored to the particular case . . . and
[be] adequate to permit meaningful appellate review”). Properly
preserved claims of procedural error are subject to harmless
error review. Lynn, 592 F.3d at 576.
We review a district court’s factual determinations
underlying its drug quantity calculations for clear error. See
United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). A
factual finding will be considered clearly erroneous only “when
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948). In calculating the
amount of drugs to attribute to a defendant, “the court may
consider relevant information . . ., provided that the
information has sufficient indicia of reliability to support its
probable accuracy.” United States v. Uwaeme, 975 F.2d 1016,
3
1021 (4th Cir. 1992) (internal quotation marks, citation and
emphasis omitted).
The district court heard testimony from several
witnesses, including Hess himself. The district court concluded
that Hess’s testimony was “incredible” and that the Government
had adduced substantial evidence to support its contention that
Hess intended all of the chemicals for narcotic use. We have
reviewed the record, and we conclude that the district court did
not err in so holding, let alone clearly so. The court amply
explained its conclusion, discussed the evidence, and offered a
coherent rationale for its decision. We decline to disturb that
finding.
Hess next argues that the court improperly applied a
two-level enhancement to his offense level for obstruction of
justice pursuant to USSG § 3C1.1. We do not agree.
We review for clear error a district court’s
determination that a defendant obstructed justice. United
States v. Hughes, 401 F.3d 540, 560 (4th Cir. 2005). According
to USSG § 3C1.1, a defendant’s base offense level is to be
increased two levels for obstruction of justice if
the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and . . . the obstructive conduct related
to (i) the defendant’s offense of conviction[.]
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USSG § 3C1.1. The application notes for § 3C1.1 specifically
include committing perjury and willfully failing to appear for a
judicial proceeding in a list of examples of covered conduct.
USSG § 3C1.1 cmt. n.4(b).
Here, the district court found two independent bases
for applying the § 3C1.1 enhancement. First, Hess had numerous
pretrial release violations, including drug use, failing to
report for drug testing, and most seriously, failing to appear
at a pretrial release violation hearing. The court concluded
that Hess had obstructed justice in committing these violations.
In addition, the district court believed Hess had perjured
himself when he testified at sentencing. Hess’s testimony
contradicted evidence offered by the Government, and the court
determined that he was simply “incredible.”
We hold that the district court did not err in
applying the § 3C1.1 enhancement based on Hess’s pretrial
release violations. See United States v. Dunham, 295 F.3d 605,
609 (6th Cir. 2002)(“the defendant’s [unjustified] failure to
appear is, by itself, sufficient to satisfy the government’s
burden that defendant willfully obstructed or impeded the
administration of justice.”); United States v. Fontenot, 14 F.3d
1364, 1372 (9th Cir. 1994)(no error in applying § 3C1.1
enhancement to defendant who refused to submit to court ordered
psychiatric examination), cert. denied, 513 U.S. 966 (1994).
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Because we believe the district court did not err in basing the
enhancement on Hess’s pretrial release violations, we need not
reach the question of whether the enhancement was also justified
by the conclusion that Hess committed perjury.
We therefore affirm the judgment of 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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