United States Court of Appeals
For the Eighth Circuit
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No. 13-2639
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Michael Recker
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa, Waterloo
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Submitted: June 9, 2014
Filed: August 21, 2014
[Unpublished]
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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
Michael Recker appeals his sentence of forty-six months' imprisonment,
following his guilty plea to conspiracy and fraud charges. Recker defrauded DeBruce
Grain, the operator of two federally licensed grain warehouses in Iowa. From
approximately October 2008 to October 2009, Recker first bribed, and then
threatened, an elevator employee into issuing false certificates and payments for grain
that was either substandard, or had not actually been delivered to the elevator, in
violation of 18 U.S.C. § 371. In conjunction with this scheme, Recker interfered with
Internal Revenue laws, in violation of 26 U.S.C. § 7212, by concealing the proceeds
obtained from the false grain tickets. While investigating the false grain ticket
scheme, the government discovered that Recker also committed bankruptcy fraud, in
violation of 18 U.S.C. §152(2), by failing to disclose his ownership and subsequent
sale of a combine on his bankruptcy schedules, and by lying under oath about the
combine's ownership at a meeting of bankruptcy creditors.
As relevant to this appeal, at sentencing, the district court1 applied an
obstruction of justice enhancement pursuant to United States Sentencing Guidelines
Manual § 3C1.1, based upon Recker's conduct of lying to Internal Revenue Service
agents during the grain elevator investigation and submitting a false letter
(purportedly from another person claiming to own the combine at issue) to the
bankruptcy court. This resulted in an advisory Guidelines range of 33 to 41 months,
based upon an offense level of 20 and criminal history category I. However, the court
granted an upward departure under U.S.S.G. § 4A1.3, finding that Recker's criminal
history category substantially understated the seriousness of his criminal history and
the likelihood he would commit other crimes, resulting in a Guidelines range of 37
to 46 months. Accordingly, after hearing arguments and noting that it considered the
18 U.S.C. § 3553(a) factors, the court sentenced Recker at the top of the Guidelines
range to 46 months in prison.
On appeal, Recker asserts that the district court erred in assessing the two
enhancements. We first review a sentence for significant procedural error, such as
an improper calculation of the advisory Sentencing Guidelines range; and second,
absent significant procedural error, we review the sentence's substantive
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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reasonableness for an abuse of discretion. United States v. Castillo, 713 F.3d 407,
411 (8th Cir.), cert. denied, 134 S. Ct. 297 (2013). We review the district court's
interpretation of the Sentencing Guidelines de novo and its application of the
Guidelines to the facts for clear error. United States v. Holmes, 751 F.3d 846, 852
(8th Cir. 2014).
The district court did not clearly err in finding that the facts of Recker's
criminal investigation gave rise to the obstruction enhancement. Recker did more
than simply deny guilt; he denied knowing the elevator employee involved in the
scheme, and disclaimed any knowledge of the checks written on a girlfriend's account
to the employee. This conduct is enough to support the enhancement for the grain
fraud counts. See United States v. Finck, 407 F.3d 908, 914 (8th Cir. 2005)
(affirming application of the obstruction enhancement where the defendant made
false statements to law enforcement officers and the agents had to investigate further
to refute the false statements). Further, the false letter about the combine that Recker
submitted to the bankruptcy court justified the obstruction enhancement with regard
to the bankruptcy fraud. United States v. Anderson, 68 F.3d 1050, 1055-56 (8th Cir.
1995) (affirming the obstruction enhancement in a bankruptcy fraud case where the
defendant provided incomplete financial information to the probation office in an
effort to conceal assets). Recker argues this conduct was already taken into account
because his offense level was increased two levels for lying under oath about
ownership of the combine during a meeting of bankruptcy creditors. However, while
both instances involved the ownership of the combine, they were two separate and
distinct forms of obstruction. Accordingly, we find no error with regard to the
obstruction enhancement.
Nor do we find that the district court misapplied the Guidelines with regard to
the § 4A1.3 upward departure. Recker fell within criminal history Category I because
of the age of his fifteen previous convictions and because of lenient treatment within
the state courts. Examining this criminal history, the district court found that Recker
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was an atypical Category I offender who was prone to violence toward women, and
opted to impose the enhancement. We cannot say the district court clearly erred in
so finding, and thus correctly applied the enhancement. See United States v. Mendez,
685 F.3d 769, 771 (8th Cir. 2012) (affirming upward departure where the court found
that the defendant was a "serial recidivist," despite the fact that many of the
convictions occurred before the defendant turned twenty-one).
Finally, to the extent that Recker makes the argument that the sentence is
substantively unreasonable, we disagree. The district court did not abuse its
discretion and appropriately imposed the sentence pursuant to the factors set forth in
§ 3553(a). Id. at 772. We affirm.
GRUENDER, Circuit Judge, concurring in part and concurring in the judgment.
I agree that Recker’s sentence must be affirmed. I write separately to note my
adherence to this court’s well-established rule that we review de novo the district
court’s application of USSG § 3C1.1 to undisputed facts. “The question whether
section 3C1.1 applies to [the defendant’s] conduct calls for an interpretation of the
scope of the guideline. It is therefore a question of law which this court may review
de novo.” United States v. Werlinger, 894 F.2d 1015, 1016 (8th Cir. 1990); United
States v. Finck, 407 F.3d 908, 913-14 (8th Cir. 2005) (same). Indeed, the case that
the court cites for the proposition that a district court’s application of the sentencing
guidelines is reviewed for clear error actually states that “[t]his court reviews de novo
the district court’s interpretation and application of the Sentencing Guidelines and
reviews for clear error its findings of fact.” United States v. Holmes, 751 F.3d 846,
852 (8th Cir. 2014). The appropriate standard of review for the imposition of an
enhancement pursuant to § 3C1.1, it must be noted, has been the subject of some
debate within our circuit. United States v. Brown, 539 F.3d 835, 839 n.4 (8th Cir.
2008); id. at 842-44 (Bye, J., concurring in part and dissenting in part). Nonetheless,
following our rule that a district court’s application of § 3C1.1 to undisputed facts is
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reviewed de novo, I agree that Recker’s sentence must be affirmed and therefore
concur.
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