REVISED JANUARY 16, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50319
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
SH’CARIS SEARCY
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-01-CR-29-ALL
--------------------
December 30, 2002
Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:
Sh’caris Searcy appeals the 87-month sentence imposed
following his guilty-plea conviction for possession of more than
50 grams of cocaine base with the intent to distribute and for
distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). Specifically, Searcy challenges the imposition of
the two-level sentencing enhancement he received for obstruction
of justice, pursuant to U.S.S.G. § 3C1.1. This case presents the
issue, one of first impression in this court, whether a threat
not directly communicated to the intended target may serve as the
basis for a § 3C1.1 enhancement. We conclude that it may and,
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for the reasons set forth below, AFFIRM the district court’s
judgment.
The § 3C1.1 enhancement in this case was based upon Searcy’s
attempt, while on pretrial release, to retaliate against the
confidential informant (“CI”) who had assisted law enforcement
officers in the controlled drug purchase leading to his arrest by
contacting a third party, who had a key to the CI’s residence,
and asking the third party to “plant” approximately four ounces
of crack cocaine in the CI’s residence. Searcy met with the
third party, who, unbeknownst to him, was also a CI, in
furtherance of the plan, but the plan fell apart when Searcy was
unable to secure the money to purchase the crack cocaine. As he
did in the district court, Searcy argues that the enhancement was
error because he did not directly threaten the CI and because the
CI was never aware of the threat to her.*
The district court’s determination that a defendant
obstructed justice is a factual finding reviewed for clear error,
meaning that it will be upheld so long as it is plausible in
light of the record as a whole. United States v. Huerta, 182
F.3d 361, 364 (5th Cir. 1999). The district court’s
interpretation or application of the guidelines is reviewed de
novo. Id.
*
Searcy does not renew the other grounds upon which he
objected to the enhancement in the district court, and those
arguments are therefore waived. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993)(arguments not briefed on appeal are
deemed abandoned).
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Section 3C1.1 of the guidelines provides for a two-level
increase if “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 . . . .” § 3C1.1
“Obstructive conduct can vary widely in nature, degree of
planning, and seriousness.” Id. cmt. n.3. The commentary to the
guideline provides a nonexhaustive list of the types of conduct
to which the adjustment applies, including “threatening,
intimidating, or otherwise unlawfully influencing a co-defendant,
witness or juror, directly or indirectly, or attempting to do
so.” Id. cmt. n.4(a).
Searcy contends that the guideline and commentary do not
encompass a threat not communicated to the intended target, and
he argues that a threat made to a third party which was never
intended to be communicated to the target cannot support the
obstruction-of-justice enhancement. He relies on the Fourth
Circuit’s decision in United States v. Brooks, 957 F.2d 1138,
1149-50 (4th Cir. 1992).
Searcy is correct that, to justify the imposition of the
§ 3C1.1 enhancement, the Fourth Circuit has required the threat
to be made directly to the intended target or under circumstances
in which there is some likelihood that the intended target will
learn of the threat. See id. Searcy is also correct that the
issue whether a defendant’s threat to a third party which was not
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communicated to the intended target is covered by § 3C1.1 is one
of first impression in this court. However, all other circuit
courts which have addressed the issue have reached a conclusion
different from the Fourth Circuit’s in Brooks.
The first court to do so was the Second Circuit, in United
States v. Shoulberg, 895 F.2d 882, 885-86 (2d Cir. 1990), wherein
the court upheld a § 3C1.1 enhancement based upon the defendant’s
having written, prior to trial, a note to a third party
containing threats regarding a potential Government witness which
were never communicated directly to the witness. The Second
Circuit determined that because the note was a threat relayed to
an intermediary which could have been communicated to the witness
had the Government not intervened, the threat, even though
indirectly made, was an attempt to obstruct justice covered by
§ 3C1.1. Id.
The Eighth Circuit similarly upheld the imposition of the
§ 3C1.1 enhancement based on a threat not communicated directly
to the intended target, a coconspirator who had become a CI and,
as in the instant case, was a potential Government witness.
United States v. Capps, 952 F.2d 1026, 1028-29 (8th Cir. 1991).
In Capps, after the defendant was arrested, she was heard making
a statement to third parties in a local bar to the effect that
she was planning to have some of her biker friends beat up the CI
for “snitching on her.” Id. at 1028. Capps argued that the
enhancement was error because the threat was never communicated
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to the CI. Id. The Eighth Circuit rejected the argument,
holding that:
since the adjustment applies to attempts to
obstruct justice, it is not essential that
the threat was communicated to [the CI] if it
reflected an attempt by Capps to threaten or
intimidate her conspirators into obstructing
the government’s investigation.
Id. at 1029. The court determined that the evidence showed that
Capp’s threat against the CI was more than idle bar talk and
concluded that the § 3C1.1 enhancement was therefore warranted.
Id.
The Ninth Circuit has also upheld the imposition of the
§ 3C1.1 enhancement based on indirect threats. United States v.
Jackson, 974 F.2d 104, 106 (9th Cir. 1992). In that case, after
Fred Pittman, the defendant’s friend and coconspirator, began
cooperating with the Government, the defendant disseminated to
various third parties copies of Pittman’s cooperation agreement
with the Government, with the words “The `Rat’ Fred Pittman” and
“Snitch” written on the top of the first page. Id. at 105. The
Ninth Circuit held that the enhancement was appropriate because,
although he did not directly threaten Pittman, Jackson had
disseminated information which placed Pittman and his family in
danger, potentially chilling Pittman’s willingness to testify.
Id. at 106. The court concluded, “Where a defendant’s statements
can be reasonably construed as a threat, even if they are not
made directly to the threatened person, the defendant has
obstructed justice.” Id.
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Most recently, the Eleventh Circuit adopted the same
approach, holding that communication of a threat directly to a
Government witness was not required to support the obstruction-
of-justice enhancement. United States v. Bradford, 277 F.3d
1311, 1314-15 (11th Cir.), cert. denied, 123 S. Ct. 304 (2002).
The court noted the disagreement between the Fourth Circuit and
the Second, Eighth, and Ninth Circuits but concluded that the
approach taken by the Second, Eighth, and Ninth Circuits was more
persuasive. Id. at 1315. It therefore held that an indirect
threat to third parties was an appropriate basis for the § 3C1.1
enhancement. Id.
This court also finds the reasoning of the Second, Eighth,
Ninth, and Eleventh Circuits the more persuasive and concludes
that the § 3C1.1 enhancement in the instant case should be upheld
based on the reasoning of these courts and on the plain language
of § 3C1.1 and accompanying commentary, which specifically allow
for application of the enhancement to attempts by defendants to
directly or indirectly threaten, intimidate, or influence a
potential Government witness. See § 3C1.1 & cmt. n.4(a); see
also Stinson v. United States, 508 U.S. 36, 38 (1993)
(“[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.”). The Fourth
Circuit’s conclusion in Brooks notwithstanding, there is nothing
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in the text of the guideline or commentary which restricts
application of § 3C1.1 only to situations in which the defendant
directly threatens a witness or communicates the threat to a
third party with the likelihood that it will in turn be
communicated to the witness. See § 3C1.1 & cmt. n.4(a).
It is undisputed that Searcy attempted to threaten the CI
indirectly by instituting a plan to have a third party plant
crack cocaine in her residence prior to Searcy’s trial. As the
Government argues, had Searcy’s plan succeeded, the credibility
of a potential Government witness would have been undermined,
adversely affecting the Government’s ability to present its case.
Searcy’s conduct amounts to an indirect threat or attempt to
influence a potential witness in an attempt to impede the
judicial proceedings, warranting the obstruction enhancement.
Searcy argues that, even if a threat made to a third party
and not communicated to the intended target can support a § 3C1.1
enhancement, the enhancement was nevertheless improper in his
case because he did nothing that could qualify as a true attempt
to obstruct justice. He contends that he formed only a vague
intent to have the crack cocaine planted in the CI’s residence
but took no action likely leading to the actual commission of the
offense. The uncontested findings of the PSR, however, show that
Searcy met with the third party in furtherance of his plan to
frame the CI and that the plan fell apart when Searcy could not
No. 02-50319
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secure the money to purchase the cocaine to be planted in the
residence.
For the foregoing reasons, Searcy’s sentence is AFFIRMED.