FILED
NOT FOR PUBLICATION JUN 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30274
Plaintiff - Appellee, D.C. No. 2:12-cr-00138-TOR-1
v.
MEMORANDUM*
MICHAEL JAMES PAUCKERT,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Argued and Submitted
May 7, 2015—Seattle, Washington
Before: GOULD and CHRISTEN, Circuit Judges and BLOCK,** Senior District
Judge.
Michael James Pauckert appeals his sentence for unlawfully possessing a
firearm, an explosive, and materials for creating fraudulent identifications.
Pauckert contends that his sentence was procedurally and substantively
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
**
The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
unreasonable. We have jurisdiction under 28 U.S.C. § 1291. We vacate the
sentence and remand to the district court for further action.
1. The district court properly imposed a sentencing enhancement for
obstruction of justice under U.S.S.G. § 3C1.1. Pauckert’s instruction to Dodge to
destroy the printers that were used to create the fraudulent identification materials
may be subject to more than one interpretation, but the district court did not clearly
err in concluding that the instruction was given with the purpose of destroying
material evidence. See United States v. Garro, 517 F.3d 1163, 1171 (9th Cir.
2008) (holding that district court’s factual findings for purposes of obstruction
enhancement are reviewed for clear error). Under § 3C1.1, Application Note 4(D),
“directing or procuring” someone to destroy evidence material to an investigation
or judicial proceeding qualifies as obstruction. To be material, it is enough that the
conduct had the potential to obstruct—actual obstruction is unnecessary. See
United States v. Draper, 996 F.2d 982, 986 (9th Cir. 1993). Destruction of the
printers meets that standard.
We reject Pauckert’s argument that because the FBI investigator did not
think the printers were necessary evidence and did not seize them, they were
necessarily not material. Because Pauckert’s instruction to get rid of the printers
occurred shortly after Pauckert’s arrest and substantially before Pauckert’s guilty
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plea, the attempted destruction of equipment used to produce his fraudulent kits
had the potential to affect the investigation and trial.
2. The district court committed serious procedural error when it miscalculated
the Guidelines range for the hypothetical offense that it used as a cross-check on
the Guidelines range for Pauckert’s offenses of conviction. The district court
began its hypothetical Guidelines calculation for attempted second-degree murder
by assuming that Pauckert would have been convicted of second-degree murder,
which generates a base offense level of 38. See U.S.S.G. § 2A1.2. After deducting
three levels for an attempt and three for acceptance of responsibility, the district
court reached a final offense level of 32, which, with a criminal history category of
V, produced a Guidelines range of 188 to 235 months.
This was incorrect. Attempted murder would give a base offense level of
27. See id. § 2A2.1(a)(2). Using this base offense level, and applying the same 3-
level reduction for acceptance of responsibility, the correct final offense level was
24, giving a Guidelines range of 92 to 115 months. Even applying a two level
enhancement for obstruction of justice, the range is 110 to 137 months—with the
maximum in this range giving a sentence lower than the 144 months that the
district court imposed. There was a significant upward variance, the hypothetical
offense was repeatedly emphasized, and the district court apparently believed that
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it was imposing a sentence substantially lower than what Pauckert would have
received had he been convicted of attempted murder. We need not decide here a
rule for all cases on the propriety of using hypothetical offenses at sentencing. But
if a district court is going to rely on one, it must at least calculate the Guidelines
range for the hypothetical offense correctly.
For guidance on remand, we note that although the district court’s
conclusion that Pauckert had mortal intentions was not clearly erroneous, the
record does not support the conclusion that Pauckert made a substantial step
toward the completion of the murder. “Mere preparation to commit a crime does
not constitute a substantial step.” Hernandez-Cruz v. Holder, 651 F.3d 1094, 1102
(9th Cir. 2011) (internal quotation marks omitted). Rather, “[e]ven when the
defendant’s intent is clear, his actions must cross the line between preparation and
attempt by unequivocally demonstrating that the crime will take place unless
interrupted by independent circumstances.” United States v. Nelson, 66 F.3d 1036,
1042 (9th Cir. 1995) (internal quotation marks omitted). Testimony at sentencing
suggested that the bomb had been armed at some point but was unarmed when
discovered by FBI agents. There is no evidence that Pauckert contacted or
threatened any person for whom he had searched online, nor other evidence that in
our view goes beyond “mere preparation.”
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3. Because we vacate Pauckert’s sentence, we do not reach his other claims of
procedural error other than to say that on remand, the district court should
reconsider the admission of testimony about Pauckert’s polygraph responses in
light of United States v. Bahr, 730 F.3d 963 (9th Cir. 2013). We do not reach
whether Pauckert’s sentence was substantively unreasonable.
4. We reject Pauckert’s request to reassign this matter to another district judge
on remand. The district court’s reliance on a hypothetical offense in sentencing
and references to sentences imposed in cases the judge had prosecuted did not
show bias and were not the type of unusual circumstances that warrants
reassignment. Nor do we think that the district court will have any difficulty in
making a fair ruling based on the evidence properly before it on remand.
VACATED and REMANDED.
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