United States v. Mollner

FILED
United States Court of Appeals
Tenth Circuit

May 4, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 09-4158

CHRISTOPHER NOAH MOLLNER,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:08-CR-00156-TS-1)

Jeremy M. Delicino, Salt Lake City, Utah (Stephen R. McCaughey of McCaughey
& Metos, Salt Lake City, Utah, with him on the brief), for Defendant-Appellant.

Karin M. Fojtik, Assistant United States Attorney (Carlie Christensen, United
States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-
Appellee.

Before KELLY, LUCERO, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Defendant-Appellant Christopher Noah Mollner pleaded guilty to armed

bank robbery, in violation of 18 U.S.C. § 2113. Prior to sentencing, the district

court granted the government’s motion to compel Mr. Mollner to testify at the
trial of his co-defendant, Ira Burdell Wakefield, and to grant Mr. Mollner

immunity for his testimony. However, Mr. Mollner refused to testify. At Mr.

Mollner’s sentencing hearing, the district court adjusted his offense level upward

by two levels for obstruction of justice under U.S. Sentencing Guidelines Manual

(“U.S.S.G.”) § 3C1.1 based upon Mr. Mollner’s refusal to testify, and sentenced

Mr. Mollner to 100 months’ imprisonment. 1

On appeal, Mr. Mollner challenges the district court’s application of the

obstruction-of-justice enhancement. Exercising jurisdiction under 28 U.S.C.

§ 1291, we conclude that the district court did not err by increasing Mr. Mollner’s

offense level for obstruction of justice. Accordingly, we AFFIRM his sentence.

DISCUSSION

“[W]e review sentences for reasonableness under a deferential abuse-of-

discretion standard.” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214

(10th Cir. 2008). “Reasonableness review is a two-step process comprising a

procedural and a substantive component.” United States v. Verdin-Garcia, 516

F.3d 884, 895 (10th Cir. 2008) (citing United States v. Gall, 552 U.S. 38, 51

(2007)). “A challenge to the application of a sentencing enhancement tests the

‘procedural reasonableness’ of a sentence, ‘which requires, among other things, a

properly calculated Guidelines range.’” United States v. Cook, 550 F.3d 1292,

1
The district court applied the version of the Sentencing Guidelines
dated November 1, 2008.

2
1295 (10th Cir. 2008) (quoting United States v. Smith, 534 F.3d 1211, 1226 (10th

Cir. 2008)); see also Smith, 534 F.3d at 1226 (noting that the defendant’s

challenge to “the district court’s application of the obstruction enhancement under

USSG § 3C1.1” constitutes a procedural-reasonableness challenge). “When

evaluating the district court’s interpretation and application of the Sentencing

Guidelines, we review legal questions de novo and factual findings for clear error,

giving due deference to the district court’s application of the guidelines to the

facts.” United States v. Munoz-Tello, 531 F.3d 1174, 1181 (10th Cir. 2008)

(quoting United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006)) (internal

quotation marks omitted).

The district court concluded that Mr. Mollner’s “refusal to testify at his co-

defendant’s trial after the immunity order was issued constitute[d] a willful

obstruction of justice under Section 3C1.1,” and applied the two-level

enhancement. R., Supp. Vol. 2, at 16 (Sentencing Hr’g Tr., dated July 8, 2009).

On appeal, Mr. Mollner argues that because his “refusal to testify at his co-

defendant’s trial did not obstruct the investigation, prosecution, or sentencing of

his own offense, the adjustment was clearly inapplicable.” Aplt. Opening Br. at

13 (emphasis added).

I. Bernaugh and Amendment 581 to U.S.S.G. § 3C1.1

Prior to November 1, 1998, it was clear in this circuit that U.S.S.G. § 3C1.1

applied to a defendant who obstructed justice in a case closely related to his own.

3
During that period, U.S.S.G. § 3C1.1 provided that “[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,

increase the offense level by 2 levels.” U.S.S.G. § 3C1.1 (1990). We interpreted

this version of U.S.S.G. § 3C1.1 in United States v. Bernaugh, and held that “the

section 3C1.1 enhancement applies where a defendant attempts to obstruct justice

in a case closely related to his own, such as that of a codefendant.” 969 F.2d 858,

861 (10th Cir. 1992).

However, in 1998, subsequent to our decision in Bernaugh, the Sentencing

Commission amended U.S.S.G. § 3C1.1. In Amendment 581, the Commission set

forth the substance of the amendment and explained the reasons for it. See

U.S.S.G. app. C, amend. 581 (2001). As a result of this amendment, effective

November 1, 1998, the text of U.S.S.G. § 3C1.1 read:

If (A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the course of the investigation, prosecution, or sentencing
of the instant offense of conviction, and (B) the obstructive
conduct related to (i) the defendant’s offense of conviction and
any relevant conduct; or (ii) a closely related offense, increase
the offense level by 2 levels.

U.S.S.G. § 3C1.1 (1998). 2

2
Effective November 1, 2006, U.S.S.G. § 3C1.1 was amended to its
current form by replacing “during the course of” with “with respect to.” See
U.S.S.G. app. C, amend. 693 (2007).

4
Amendment 581 also added a new application note 1 to the commentary of

U.S.S.G. § 3C1.1:

This adjustment applies if the defendant’s obstructive conduct
(A) occurred during the course of the investigation, prosecution,
or sentencing of the defendant’s instant offense of conviction,
and (B) related to (i) the defendant’s offense of conviction and
any relevant conduct; or (ii) an otherwise closely related case,
such as that of a co-defendant.

U.S.S.G. § 3C1.1 cmt. n.1 (1998). 3

Mr. Mollner contends that, in light of Amendment 581’s changes to

U.S.S.G. § 3C1.1 and its application notes, Bernaugh is no longer controlling

precedent. See Aplt. Opening Br. at 9. Mr. Mollner reasons that:

While the literal language of the guideline in § 3C1.1 seems to
apply broadly to the “instant offense of conviction,” the
application notes restrict the scope of this adjustment. Indeed,
while the pertinent application note closely tracks the language
of the guideline, there is one critical distinction, namely that the
application note requires that the obstructive conduct occur with
respect to “the defendant’s instant offense of conviction.”
While this deviation is slight, it nonetheless clearly indicates the
Commission’s intent to restrict application of the adjustment to
obstructive conduct relating solely to the defendant’s instant
offense of conviction.

Id. at 10–11 (citation omitted).

Accordingly, Mr. Mollner asserts that because his “refusal to testify at his

co-defendant’s trial did not obstruct the investigation, prosecution, or sentencing

3
Amendment 693 modified application note 1 in 2006 by, inter alia,
replacing “during the course of” with “with respect to.” See U.S.S.G. app. C,
amend. 693.

5
of his own offense, the adjustment [for obstruction of justice] was clearly

inapplicable.” Id. at 13 (emphasis added).

We have not yet determined whether Bernaugh’s holding survived

Amendment 581 such that U.S.S.G. § 3C1.1’s enhancement continues to apply to

a defendant’s obstruction of justice in a closely related case, such as that of a co-

defendant.

II. U.S.S.G. § 3C1.1, as Amended by Amendment 581

The Sentencing Commission and some of our sister circuits have explained

that the amended version of U.S.S.G. § 3C1.1 applies not only to the defendant’s

obstructive conduct involving his offense of conviction, but also to any of his

obstructive conduct involving cases that are closely related to the defendant’s

case. We agree.

The Sentencing Commission explained that its purpose in issuing

Amendment 581 was

to clarify what the term “instant offense” means in the
obstruction of justice guideline, § 3C1.1. This amendment
resolves a circuit conflict on the issue of whether the adjustment
applies to obstructions that occur in cases closely related to the
defendant’s case or only those specifically related to the offense
of which the defendant [was] convicted. The amendment, which
adopts the majority view, instructs that the obstruction must
relate either to the defendant’s offense of conviction (including
any relevant conduct) or to a closely related case.

U.S.S.G. app. C, amend. 581 (emphasis added) (citations omitted).

In noting that it was coming down on the side of the majority view, the

6
Commission expressly acknowledged our decision in Bernaugh as reflecting that

view. See id. In other words, the Commission indicated that the effect of the

amendment was to embrace the holding of Bernaugh, not to reject it.

Several of our sister circuits have interpreted U.S.S.G. § 3C1.1, as revised

by Amendment 581, in conformity with the Commission’s explanation.

Specifically, they have held that a defendant’s perjurious testimony in a co-

defendant’s proceeding supports the application of the obstruction-of-justice

enhancement. 4 In United States v. Savoca, the defendant claimed that his

perjurious testimony at his co-defendant’s trial “did not constitute the prosecution

of his own ‘instant offense of conviction,’ and thus, cannot qualify for an

obstruction of justice enhancement.” 596 F.3d 154, 158 (2d Cir.), cert. denied,

130 S. Ct. 3528 (2010). The Second Circuit rejected this argument, explaining

that Amendment 581 “clarified that an obstruction of justice enhancement applies

to conduct that occurred with respect to ‘an otherwise closely related case, such

as that of a co-defendant.’” Id. (quoting U.S.S.G. § 3C1.1 cmt. n.1).

Similarly, in United States v. Killingsworth, defendant Williams argued that

his perjurious testimony at co-defendant Killingsworth’s pre-sentencing

evidentiary hearing could not “give rise to an obstruction-of-justice adjustment

4
In United States v. Miranda, 15 F. App’x 674, 676–77 (10th Cir.
2001), a non-precedential decision, a panel of this court affirmed the district
court’s application of the obstruction-of-justice enhancement to a defendant who
perjured himself at his co-defendant’s sentencing hearing.

7
since the perjury occurred in a proceeding that involved another defendant.” 413

F.3d 760, 764 (8th Cir. 2005). The Eighth Circuit concluded that “the adjustment

would apply if the defendant obstructed justice in a co-defendant’s case. This

would include perjury that was immaterial to [the defendant’s] own sentence and

conviction because it was made during his testimony at the criminal proceeding of

his co-defendant.” Id. at 765 (alteration in original) (citations omitted) (internal

quotation marks omitted).

In United States v. Messino, the defendant argued that “his offending

statements were immaterial to his own sentence and conviction because they were

made during his testimony at the trial of [his] co-defendants.” 382 F.3d 704, 708

(7th Cir. 2004). The Seventh Circuit “construed ‘closely related’ offenses to

include a co-defendant’s trial. Therefore, it matters not that the offending

statements may have been immaterial to his own guilt or sentencing.” Id.

(citation omitted).

The Fourth and Ninth Circuits have also rejected the argument that

Amendment 581 narrowed the scope of § 3C1.1 to exclude obstructive conduct

that does not have a direct nexus to the defendant’s offense of conviction. See

United States v. Jones, 308 F.3d 425, 429 (4th Cir. 2002) (“[O]ther circuits have

rejected the argument that the addition of clause (B) rendered § 3C1.1 more

rigorous . . . . We agree that clause (B) did not narrow the scope of § 3C1.1. The

amendment merely made plain that the broad reading of § 3C1.1 was correct.”);

8
United States v. Verdin, 243 F.3d 1174, 1180 (9th Cir. 2001) (“The purpose of the

amendment . . . is not to restrict the types of obstructive conduct warranting an

enhancement . . . but to expand them to include obstructions in a closely related

case, such as that of a co-defendant.”).

The Third and Sixth Circuits have indicated that they likely would rule

similarly. See United States v. Burke, 345 F.3d 416, 428–29 (6th Cir. 2003)

(“The Sentencing Commission in 1998 resolved the split in favor of the former

position”—i.e., that the term “‘instant offense’ referred to obstruction in both the

defendant’s case and in other cases closely related to the defendant’s case.”);

United States v. Imenec, 193 F.3d 206, 208 n.1 (3d Cir. 1999) (“The application

notes indicate that the amendment was intended to address the issue raised in this

appeal—i.e., whether the term ‘instant offense’ applies to obstructions that occur

in cases closely related to the defendant’s case or only to those obstructions

specifically related to the offense for which the defendant has been convicted. . . .

It, thus, appears that [the defendant’s] conduct would merit enhancement under

the 1998 Guidelines.” (citation omitted)).

Mr. Mollner’s contrary analysis—which attributes great significance to the

placement of the word “defendant’s” before the language “instant offense of

conviction” in application note 1 of § 3C1.1’s commentary—is unavailing. Mr.

Mollner cites to no authority that even suggests that the Sentencing Commission

intended the lone word “defendant’s” to engage in such herculean work—viz., to

9
dramatically restrict the scope of the language of § 3C1.1’s text, which Mr.

Mollner acknowledges “appl[ies] broadly to the ‘instant offense of conviction,’”

Aplt. Opening Br. at 10, such that the obstruction-of-justice enhancement only

applies to a defendant’s obstructive conduct committed with respect to his offense

of conviction. Nor are we aware of any such authority.

Given the controlling effect ordinarily accorded to Guidelines commentary,

see Stinson v. United States, 508 U.S. 36, 45 (1993) (“[T]his type of commentary

is akin to an agency’s interpretation of its own legislative rules. . . . [P]rovided

an agency’s interpretation of its own regulations does not violate the Constitution

or a federal statute, it must be given ‘controlling weight unless it is plainly

erroneous or inconsistent with the regulation.’” (quoting Bowles v. Seminole Rock

& Sand Co., 325 U.S. 410, 414 (1945)); see also United States v. Morris, 562

F.3d 1131, 1135 (10th Cir. 2009) (“The [Stinson] Court reasoned that giving

controlling weight to the commentary was particularly appropriate in light of the

Sentencing Commission’s statutory obligation to review and periodically revise

the guidelines.”), if the Sentencing Commission had intended for the term

“defendant’s” to carry such a heavy load, we believe that the Commission would

have signaled its intention in clearer terms, cf. INS v. Cardoza-Fonseca, 480 U.S.

421, 432 n.12 (1987) (noting “the strong presumption that Congress expresses its

intent through the language it chooses”); Banzhaf v. FCC, 405 F.2d 1082, 1089

(D.C. Cir. 1968) (noting that if Congress “meant to do anything so dramatic, it

10
might reasonably be expected to have said so directly”); Leist v. Simplot, 638

F.2d 283, 327 (2d Cir. 1980) (Mansfield, J., dissenting) (“Extrapolations based on

gossamerthin fabric, requiring speculative assumptions as to Congress’ intent are

to be avoided. To rely upon such weak inferences is to indulge in judicial

legislation.”).

In this regard, in discerning the effect of Amendment 581, instead of trying

to engage in an act of linguistic alchemy with respect to the lone term

“defendant’s” in application note 1, we consider it much more useful to focus on

what the Sentencing Commission, in pellucid language, said that it was doing:

“The amendment . . . instructs that the obstruction must relate either to the

defendant’s offense of conviction (including any relevant conduct) or to a closely

related case.” U.S.S.G. app. C, amend. 581 (emphasis added). Our sister circuits

also have looked to the Sentencing Commission’s explanation for Amendment

581 in assessing its import. See Killingsworth, 413 F.3d at 764–65; Jones, 308

F.3d at 428–29; Verdin, 243 F.3d at 1180.

To bolster his argument, Mr. Mollner relies on the Supreme Court’s

decision in Stinson. There, the Court remarked: “[W]e can presume that the

interpretations of the guidelines contained in the commentary represent the most

accurate indications of how the Commission deems that the guidelines should be

applied to be consistent with the Guidelines Manual as a whole as well as the

authorizing statute.” Stinson, 508 U.S. at 45. However, nothing in the

11
interpretive language of application note 1 of § 3C1.1’s commentary affirmatively

supports the position that Mr. Mollner advances here. Therefore, Mr. Mollner’s

reliance on Stinson is misplaced.

In sum, in light of the Sentencing Commission’s clear explanation that

Amendment 581 was adopted to clarify that the term “instant offense” includes

obstructions of justice in cases closely related to the defendant’s case—a position

that the Commission explicitly noted was endorsed by Bernaugh—and also given

the decisions of our sister circuits interpreting the amended version of U.S.S.G.

§ 3C1.1 in a manner consonant with the Commission’s explanation, we conclude

that our holding in Bernaugh is still good law. That is, the obstruction-of-justice

enhancement applies where a defendant attempts to obstruct justice in a case

closely related to his own, such as that of a co-defendant, even after the

Commission’s adoption of Amendment 581. Accordingly, we hold that the

district court appropriately applied this enhancement to Mr. Mollner, who refused

to testify in his co-defendant’s case after being ordered to testify and being

granted immunity for his testimony.

CONCLUSION

For the reasons set forth above, we AFFIRM Mr. Mollner’s sentence.