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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12802
Non-Argument Calendar
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D.C. Docket No. 4:12-cr-00062-MW-CAS-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN MINK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(June 23, 2014)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Stephen Mink appeals his total 160-month sentence after pleading guilty to
conspiring to distribute 100 kilograms of marijuana, in violation of 21 U.S.C.
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§§ 846, 841(a)(1), (b)(1)(A)(viii); possession with intent to distribute marijuana, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(D); and possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i). Seven codefendants were indicted with Mink on the conspiracy
to distribute marijuana charges, and two related indictments were also filed, one
with four codefendants and one against a single defendant.
On appeal, Mink argues that the district court erred in imposing an
obstruction of justice enhancement, pursuant to U.S.S.G. § 3C1.1, based on a call
he placed from prison in which he identified a confidential informant who had
bought drugs from Mink and who was a defendant in one of the related
indictments. Mink argues that the enhancement does not apply because he did not
intend to obstruct justice in his “instant offense of conviction.” He also argues that
he should have been credited a reduction for acceptance of responsibility, pursuant
to U.S.S.G. § 3E1.1, even if we uphold the obstruction-of-justice enhancement.
In reviewing the district court’s imposition of an enhancement for
obstruction of justice, we review “the district court’s factual findings for clear error
and review the application of the factual findings to the sentencing guidelines de
novo.” United States v. Doe, 661 F.3d 550, 556 (11th Cir. 2011). We “review the
district court’s determination of acceptance of responsibility only for clear error.”
United States v. Amedeo, 370 F.3d 1305, 1320 (11th Cir. 2004). We will not
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disturb a district court’s factual findings under the clearly erroneous standard
unless we are left with the “definite and firm conviction that a mistake has been
made.” Doyal v. Marsh, 77 F.2d 1526, 1533 (11th Cir. 1985); see Amedeo, 370
F.3d at 1320.
Pursuant to U.S.S.G. § 3C1.1, a defendant’s offense level will be increased
by two levels if
(1) 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 (2) the obstructive conduct related to (A) the
defendant’s offense of conviction and any relevant conduct; or (B) a
closely related offense.
U.S.S.G. § 3C1.1. An example of conduct deemed “obstructive” under § 3C1.1 is
attempting to threaten or intimidate a codefendant or witness. Id. § 3C1.1
comment. (n.4(A)).
Prior to November 1998, § 3C1.1 applied an enhancement if a defendant
obstructed justice “during” the investigation, prosecution, or sentencing of the
“instant offense.” U.S.S.G. § 3C1.1 (1997). In 1998, Amendment 581 amended
§ 3C1.1 to apply the enhancement if a defendant obstructed justice “during the
course of” the investigation, prosecution, or sentencing of the “instant offense of
conviction,” and also added the second part to the guideline that required the
obstructive conduct relate to either (A) the defendant’s own offense of conviction
and any relevant conduct, or (B) a closely related offense. See U.S.S.G. § 3C1.1
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(1998); U.S.S.G. App. C, amend. 581 (2013). The stated purpose of Amendment
581 was to clarify the term “instant offense” and resolve a circuit split as to
whether the adjustment applied to obstructions occurring in cases closely related to
a defendant’s case or just to those obstructions that specifically related to the
offense for which the defendant was convicted. See U.S.S.G. App. C., amend. 581.
Amendment 581 adopted the majority view that the obstruction must relate “either
to the defendant’s offense of conviction or to a closely related case,” and further
clarified the temporal element of § 3C1.1, namely that the obstruction must occur
during the investigation, prosecution, or sentencing of the defendant’s offense of
conviction. See id. Thus, the obstruction must have occurred during the
prosecution of the defendant’s instant offense, but it could relate either to that case
or a closely related case. See id.
In 2006, § 3C1.1 was amended to its current version to apply the
enhancement if the defendant obstructed justice “with respect to” (not “during the
course of”) the investigation, prosecution, or sentencing of the instant offense of
conviction. See U.S.S.G. § 3C1.1 (2006); U.S.S.G. App. C., amend. 693 (2013).
Amendment 693 addressed a circuit split regarding whether pre-investigatory
conduct could trigger the enhancement, and adopted the majority view that pre-
investigatory obstruction came within § 3C1.1 if it was purposefully calculated and
likely to thwart the investigation or prosecution of the offense of conviction. See
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U.S.S.G. App. C., amend. 693; see also Amedeo, 370 F.3d 1305. In interpreting
§ 3C1.1, under the current Guidelines, this Court has stated that the “‘relevant
question is whether the obstructive conduct occurred during the investigation,
prosecution, or sentencing’ of the offense of conviction or a closely related
offense.” Doe, 661 F.3d at 566 (quoting United States v. Campa, 529 F.3d 980,
1016 (11th Cir. 2008)).
Under U.S.S.G. § 3E1.1, the district court will decrease a defendant’s
offense level by two if he “clearly demonstrates acceptance of responsibility for his
offense.” U.S.S.G. § 3E1.1(a). Upon the government’s motion and assertion that
the defendant assisted in the investigation or prosecution of his own misconduct by
timely pleading guilty, the district court shall decrease the offense level by one
additional level. Id. § 3E1.1(b); see id. § 3E1.1, comment. (n.6). However, while
a defendant’s guilty plea before trial and admission of the conduct comprising the
offense of the conviction will constitute “significant evidence” of acceptance of
responsibility, “this evidence may be outweighed by conduct of the defendant that
is inconsistent with such acceptance of responsibility,” and a defendant who pleads
guilty is not entitled to an adjustment under § 3E1.1 as a matter of right. Id.
§ 3E1.1, comment. (n.3). Conduct resulting in an enhancement under § 3C1.1 for
obstruction of justice “ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct.” Id. § 3E1.1, comment. (n.4). The
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commentary states that there “may” be “extraordinary cases” in which adjustments
under both § 3C1.1 and § 3E1.1 would apply. Id. Because the sentencing judge is
in a unique position to evaluate a defendant’s acceptance of responsibility, the
district court’s determination on this issue is “entitled to great deference.” Id.
§ 3E1.1, comment. (n.5).
Here, Mink does not actually challenge the fact that he made a phone call
from prison identifying a confidential informant. The district court concluded that
Mink’s call demonstrated a “clear intent” to intimidate the confidential informant,
conduct that would fit within § 3C1.1. This finding is not clearly erroneous, as it is
supported by the testimony of a Drug Enforcement Agency special agent at the
sentencing hearing. See Doyal, 77 F.2d at 1533. Accordingly, the question that
remains before us is whether Mink’s conduct obstructed justice as contemplated by
the Sentencing Guidelines.
First, Mink’s obstruction occurred during the investigation, prosecution, or
sentencing of his instant offense because the phone calls were placed prior to his
sentencing. See Doe, 661 F.3d at 566. That satisfies the “with respect to . . . the
instant offense of conviction” language of the current § 3C1.1, which seems to
include the “during the course of” language that was added by Amendment 581,
and is in fact broader to also include certain pre-investigation conduct within
§ 3C1.1. See U.S.S.G. App. 3, amend. 693 (explaining that the purpose of the
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amendment was to expand § 3C1.1). Accordingly, the district court properly
applied the § 3C1.1 enhancement so long as Mink’s obstructive conduct related
either to his offense of conviction or to a closely related case. See U.S.S.G.
§ 3C1.1.
Mink’s and the confidential informant’s offenses are closely related. See
Doe, 661 F.3d at 556. The confidential informant’s and Mink cases were charged
on the same day and in consecutive case numbers, both Mink and the confidential
informant purchased marijuana from the same codefendants, and the confidential
informant also admitted to purchasing drugs from Mink. Additionally, the record
indicates that, at the time of Mink’s call, proceedings were ongoing as to all of his
seven codefendants. On the related indictments, proceedings were ongoing for
three out of the five defendants, including the confidential informant. Thus,
Mink’s outing of the confidential informant, with the intent to intimidate, affected
his case and both related cases, and qualified as obstruction of justice under
§ 3C1.1. Accordingly, the district court did not err by applying the enhancement.
Because the district court did not err by applying § 3C1.1, Mink is entitled
to an acceptance of responsibility adjustment only if his circumstances represent an
“extraordinary case.” See Amedeo, 370 F.3d at 1321. The district court’s
conclusion that Mink’s outing of a confidential informant, coupled with his
conduct, attitude, and lack of cooperation throughout the proceedings, all showed
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that he had not clearly accepted personal responsibility for his criminal offense, is
not clearly erroneous. Mink has not shown that the district court clearly erred in
not finding this to be an extraordinary case where he merited both a § 3C1.1 and
§ 3E1.1 adjustment.
AFFIRMED.
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