FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-30643
Plaintiff-Appellee,
v. D.C. No.
CR-99-00154-EFS
JOHN L. CALVERT,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted
September 28, 2007—Seattle, Washington
Filed January 14, 2008
Before: Betty B. Fletcher and Ronald M. Gould,
Circuit Judges, and Stephen G. Larson,* District Judge.
Opinion by Judge Larson;
Concurrence by Judge B. Fletcher
*The Honorable Stephen G. Larson, United States District Judge for the
Central District of California, sitting by designation.
379
UNITED STATES v. CALVERT 381
COUNSEL
Richard D. Wall, Esq., Spokane, Washington, for the appel-
lant.
382 UNITED STATES v. CALVERT
Thomas O. Rice, Office of the United States Attorney, Spo-
kane, Washington, for the appellee.
OPINION
LARSON, District Judge:
Today we resolve a sentencing guideline question left open
in our decision in United States v. Smith: When someone is
convicted of retaliating against a federal witness in violation
of 18 U.S.C. § 1513(b), may the eight-level increase found in
United States Sentencing Guidelines (“USSG”) § 2J1.2(b)(1)
(Nov. 2000) for an offense “causing or threatening to cause
physical injury to a person . . . in order to obstruct the admin-
istration of justice” be imposed even if no judicial proceeding
was pending at the relevant time? 387 F.3d 826, 831 n.6 (9th
Cir. 2004). The district court, following the lead of the Sev-
enth Circuit in United States v. Duarte, 28 F.3d 47 (7th Cir.
1994), found such an increase permissible. For the reasons set
forth below, we affirm.
FACTUAL AND PROCEDURAL HISTORY
At 8 p.m. on June 4, 1998, Timothy Tyler knocked on the
door to Clyde and Geraldine Overdorff’s home in Spokane,
Washington. When Clyde opened the door Tyler inquired
about a motor home the elderly couple had for sale on their
premises. Clyde took Tyler around to the back of the home to
show him the motor home. Shortly thereafter, Geraldine heard
a commotion in the back yard. Peering out the side door, Ger-
aldine spied Tyler pushing Clyde back toward the house at
gun point. Once inside the elderly couple’s home, Tyler
forced them to sit in two dining room chairs and then bound
their wrists to the chairs with plastic ties. At some point, Ger-
aldine pleaded with Tyler to leave, to which he responded, “I
don’t like this any more than you do.”
UNITED STATES v. CALVERT 383
Shortly thereafter Tyler took Geraldine to the bathroom,
left her there, and went back to the dining room. Moments
later Geraldine heard three gunshots. She immediately called
9-1-1. Clyde came staggering to the bathroom and told her
that he had been shot by Tyler, but that he had managed to
shoot Tyler as well (Clyde had surreptitiously retrieved a gun
from the kitchen at some point during the home invasion).
Geraldine observed Tyler lying on the floor in the living
room; he later died at the hospital.
Clyde had been shot in the abdomen, the bullet wound
placing him in intensive care at the hospital for two and a half
months and requiring that he receive extensive physical reha-
bilitation and nursing care.
The ensuing investigation into the home invasion of the
Overdorffs’ residence uncovered evidence indicating that
Tyler was recruited to commit the crime by John Calvert.
Authorities traced Calvert’s motive, in turn, to a 1995 federal
prosecution against one Richard Peters on federal tax evasion
charges for hiding financial assets in Canada. One of the key
government witnesses at the 1995 trial was Peters’ longtime
friend, Clyde Overdorff. Peters was convicted of the tax
offenses and incarcerated at a federal correctional institution,
where he met Calvert, who was incarcerated there at the time
on a firearm offense.
While in prison Peters hatched a plot to seek retribution
against Clyde Overdorff for testifying against him. After Cal-
vert and Peters were released from prison, Calvert quickly
became indebted to Peters in the sum of $60,000. In exchange
for forgiveness of the debt, Calvert agreed to plan and partici-
pate in the robbery at the Overdorffs’ home to make real
Peters’ vengeful desires. Calvert recruited Tyler to help him
carry out the deed, accompanied Tyler to the Overdorffs’
home on the night in question, and served as the look-out and
driver of the getaway car.
384 UNITED STATES v. CALVERT
Calvert was later arrested by authorities and then convicted
by a jury in March, 2001, of conspiracy to retaliate against a
witness, a violation of 18 U.S.C. § 371, retaliation against a
witness, a violation of 18 U.S.C. § 1513(b), use of a firearm
during a crime of violence, a violation of 18 U.S.C.
§ 924(c)(1)(A), and for being a convicted felon in possession
of a firearm, a violation of 18 U.S.C. § 922(g).
After numerous sentencing hearings, impositions of sen-
tence by the district court, and multiple appeals to and
remands from this court, Calvert was sentenced on November
30, 2006, to sixty months on the conspiracy count, ninety
months on both the retaliation and felon in possession counts
(which were to run concurrently with one another but consec-
utively with the remaining counts), and 120 months on the use
of a firearm count (running consecutively with the other
counts), for a total of 270 months in federal prison.
A point of contention in arriving at this sentence was
whether the eight-level enhancement found in USSG
§ 2J1.2(b)(1) was applicable to Calvert’s sentence on the wit-
ness retaliation-related counts even though, at the time of the
home invasion robbery, Peters had already been convicted,
had completed his prison sentence, had been released from
custody, and was not facing any threat of future prosecution,
thus eliminating any prospect for Clyde Overdorff to testify
as a witness against him. The district court concluded that the
enhancement applied. It is to that issue that we now turn.
DOES APPLICATION OF § 2J1.2(b)(1) TO AN
INDIVIDUAL CONVICTED OF RETALIATING
AGAINST A WITNESS REQUIRE THE PENDENCY OF
A JUDICIAL PROCEEDING?
We follow “a two-step procedure for reviewing sentences
imposed following the date the Supreme Court issued its
opinion in Booker.” United States v. Mix, 457 F.3d 906, 911
(9th Cir. 2006). Initially, we determine whether the district
UNITED STATES v. CALVERT 385
court properly considered and applied the applicable guide-
line. See United States v. Cantrell, 433 F.3d 1269, 1279-81
(9th Cir. 2006). If the district court did not err in applying the
guidelines, we then review the reasonableness of the sentence
itself in light of the factors set forth in 18 U.S.C. § 3553(a).
Id. at 1280. Calvert challenges only the district court’s inter-
pretation of the Guidelines in calculating his sentence, a ques-
tion which we review de novo. United States v. Kilby, 443
F.3d 1135, 1140 (9th Cir. 2006).
At the time Calvert was convicted, section 2J1.2(a) of the
Guidelines provided a base offense level of twelve for several
statutory offenses involving obstruction of justice, one of
which is the witness-retaliation statute found at 18 U.S.C.
§ 1513. See USSG 2J1.2 cmt. statutory provisions (identifying
the statutory provisions applicable to the Guideline as “18
U.S.C. §§ 1503, 1505-1513, [and] 1516”). The Guideline fur-
ther provides for an eight-level enhancement in the base
offense level for “causing or threatening to cause physical
injury to a person, or property damage, in order to obstruct the
administration of justice.” USSG § 2J1.2(b)(1).
Seizing on the “in order to obstruct the administration of
justice” language in the Guideline enhancement, Calvert
makes the unremarkable proposition that the increase only
applies where the defendant acts with an intent to obstruct the
administration of justice. From this base, Calvert leads in a
direction that we decline to follow.
In Calvert’s view, an intent to retaliate against a witness
does not necessarily include an intent to obstruct justice. This
is so, he contends, because the obstruction element is met
only where there is something that could presently be affected
by that act. Without the existence of some pending judicial
proceeding at the moment of retaliation, Calvert argues, there
is simply nothing in the justice system to obstruct through that
act. Such an argument posits that the administration of justice
entails nothing more than the conduct of discrete proceedings.
386 UNITED STATES v. CALVERT
Grand jury proceedings and trials are, in this view, more than
just the archetypes for the administration of justice; they are
its sine qua non and, hence, their presence is essential to satis-
fying the intent element set forth in the Guideline.
Applied to the facts of this case, Calvert argues that no
intent to obstruct can be inferred because Peters was under no
threat of prosecution at the time the offense was committed,
having been convicted and completed his sentence when the
crime occurred. In this sense, the present case is unlike the
one we were presented with in Smith where the defendant’s
“act of retaliation occurred while [the defendant] knew that a
burglary charge was pending against her son” and thus her
“retaliatory intent inevitably operated to obstruct justice, as
[she] threatened a witness who would presumably have pro-
vided additional assistance to the government as its burglary
prosecution progressed.” 387 F.3d at 831.
In the absence of a pending judicial proceeding, Calvert
argues that he can only be said to have been motivated purely
by a desire for revenge. Calvert thus seeks to draw a distinc-
tion rejected by the Seventh Circuit “between vengeful and
instrumental retaliations,” with only the latter punished more
harshly. Duarte, 28 F.3d at 49. We reject such a distinction
in the context of the witness-retaliation statute as we find it
predicated upon an overly cramped conception of the justice
system.
[1] Lost in Calvert’s argument is any recognition of the par-
ticular predicate offense of which he was convicted. Calvert
was not convicted of simply causing bodily injury to Clyde
Overdorff to seek revenge in the abstract, but of doing so
because Clyde testified as a witness for the government in the
criminal trial against Peters. Towards that end, the jury was
instructed that, to convict Calvert of the crime, he must have
acted “with the intent to retaliate against Clyde Overdorff
because he had been a witness at a federal criminal trial.” It
is this intent to harm someone because he or she is or was a
UNITED STATES v. CALVERT 387
witness that satisfies § 2J1.2(b)(1)’s element requiring an
intent to obstruct the administration of justice. Intending to
physically harm someone due to their service as a witness
fundamentally contravenes and undermines the administration
of justice.
There are certain components in the justice system without
which it could not function. Witnesses are among these essen-
tial components. Witnesses (and the service they provide) are
the engine, for want of a better phrase, from which much of
the output from the machinery (the discrete judicial proceed-
ings referenced by Calvert) in the justice system is produced.
Without their information, and their willingness to take the
very public and visible role of furnishing sworn testimony at
trial, our criminal justice system could not function. The abil-
ity of law enforcement officers and prosecutors to discover
and prove criminal activity turns on their ability to recruit wit-
nesses willing to truthfully testify in a public court of law.
[2] Admittedly, where a witness suffers retribution after a
verdict is rendered, the effect on the administration of justice
is not as direct and immediate (lacking an identifiable pro-
ceeding that could be disrupted as a result of the conduct) as
would be the case where a star witness is beaten or killed on
the eve of trial. However, that the conduct lacks a direct and
immediate impact does not mean the conduct is in any way
less pernicious to the effective administration of justice. There
is more to the administration of justice than ensuring the
integrity of the machinery employed in conducting and con-
cluding a particular proceeding; rather, it most assuredly also
requires the continued respect and cooperation by the citi-
zenry for upholding the law in general. Such continued
respect and cooperation is brought into serious question when
those who have assisted authorities in the past become targets
because of their dutiful cooperation. What causes individuals
apprehension in coming forward and providing information to
authorities is not just that they may be harmed before or dur-
ing a trial, but that such harm will be exacted against them at
388 UNITED STATES v. CALVERT
all, the timing of when such retaliation will occur being irrele-
vant.
[3] Calvert’s intent in this case to harm someone for giving
testimony in a past criminal trial preys upon this fear, and per-
petuates such apprehension by giving a concrete example of
the feared retribution. Such retributive acts against former
witnesses communicate an unmistakable message to society at
large not to cross the defendant’s path in particular, and that
dissuades others from cooperating with authorities in general.
Just because Peters did not have a pending proceeding against
him does not detract from the chilling effect the offense in
this case can have on witnesses in other cases, thus hindering
the ability of federal law enforcement and prosecutors to gain
their cooperation.
A witness having information that might be useful to
authorities in a completely unrelated matter would have seri-
ous qualms about coming forward with such evidence after
hearing of Clyde Overdorff’s harrowing experience. Simi-
larly, someone who has served as an informant for law
enforcement (even in the absence of having any current infor-
mation to provide) may decide to sever his or her relationship
upon learning of retributive acts like those taken in this case.
Attacking such a vital organ to the functioning of the justice
system is so pernicious that the act itself amounts to an
obstruction of justice with or without any connection to an
identifiable discrete proceeding. Without a witness’ willing-
ness to come forward there would rarely, if ever, be a discrete
judicial proceeding to conduct in the first instance.1
1
The concurrence’s suggestion that the preceding discussion is “surplus-
age,” containing little more than our “philosophical perspective” and
likely to invite “mischief,” is puzzling given that it was the suggestion in
Smith (which was written by the author of the concurrence) that “one
might dispute in the abstract whether an intent to retaliate will always also
include an intent to obstruct justice,” 387 F.3d at 831, the very suggestion
seized upon by Calvert in this appeal, that necessitated that we provide an
explanation for why such is not the case.
UNITED STATES v. CALVERT 389
In this context, it must also not be forgotten that for the
eight-level enhancement to apply, the Guideline requires that
the intent to retaliate have been carried out in a particular
manner: The defendant must have either caused or threatened
to cause property damage or physical injury to the witness.
Trivial retaliatory acts will not do; the enhancement is
reserved for serious acts used “as a means of intimidation.”
USSG § 2J1.2 cmt. application note 5. This point is picked up
by the Guideline’s commentary that “[t]he specific offense
characteristics [found in sections 2J1.2(b)(1)-(2)] reflect the
more serious forms of obstruction.” USSG § 2J.1 cmt. back-
ground (emphasis added). Indeed, even this “serious form” of
obstruction captured in § 2J1.2(b)(1) is considered a floor, as
the Guideline’s application notes reference the possibility for
a further upward departure “[i]f a weapon was used, or bodily
injury or significant property damage resulted.” USSG 2J1.2
cmt. application note 4. It is in this sense that the Seventh Cir-
cuit’s statement in Duarte, that the intent to retaliate against
a witness for conduct to which the enhancement otherwise
applies has the “invariable tendency” to impede the adminis-
tration of justice, holds meaning in this case. 28 F.3d at 48.
[4] Congress made this same observation in enacting the
witness-retaliation statute by placing the statute among the
various crimes codified in Chapter 73 to Title 18 of the
United States Code, which is itself entitled “Obstruction of
Justice.” The placement of certain prohibited acts in this chap-
ter strongly indicates that the intent to commit such an act
amounts to an intent to obstruct justice. See Duarte, 28 F.3d
at 48-49 (“The witness-retaliation statute punishes conduct
calculated to impede the administration of justice — that is
. . . the purpose of making witness retaliation a separate crime
(codified in the chapter of Title 18 (ch. 73) that is entitled —
‘Obstruction of Justice’) from assaults and threats generally”).
[5] Moreover, in enacting the witness-retaliation statute,
Congress made clear that the pendency of a judicial proceed-
ing was unnecessary to support a conviction. The statute’s use
390 UNITED STATES v. CALVERT
of the past tense, and the use of the term “retaliate,” both
make clear that the elements of the offense are satisfied where
“bodily injury” is inflicted as reprisal for prior testimony. See
18 U.S.C. § 1513(b)(1) (“Whoever knowingly engages in any
conduct and thereby causes bodily injury to another person
. . . with intent to retaliate against any person for . . . any tes-
timony given . . . by a witness in an official proceeding”
(emphasis added)); see also WEBSTER’S UNIVERSITY
DICTIONARY 1003 (3rd ed. 1994) (defining “retaliate” as mean-
ing “to pay back (an injury) in kind”). That is to say, the stat-
ute covers conduct occurring after the witness’s involvement
in a proceeding has ended. The failure to include the element
of a pending judicial proceeding was not an oversight on Con-
gress’ part; rather, it was a conscious choice stemming from
the recognition that retaliating against a witness for his or her
service regardless of when the retaliation occurred tended to
obstruct the administration of justice. As expressed in the
Senate Report accompanying the passage of section 1513:
These hearings and studies have shown repeatedly
that too often the victim has been the “forgotten per-
son” in the criminal justice system. With few excep-
tions, victims and witnesses are either ignored by the
criminal justice system or simply used to identify
offenders. . . . [T]he victim or witness who cooper-
ates with the prosecutor often does so at his own
risk. The victim or witness has little hope of protec-
tion from the government if he is harassed or threat-
ened by the defendant out on bail, or the defendant’s
friends or family; or if the convicted criminal, after
serving his time, decides to retaliate against the indi-
vidual who assisted the government. This insensitiv-
ity and lack of concern for the victim and witness is
a tragic failing in our criminal justice system, one
which hurts the whole society. Without the coopera-
tion of victims and witnesses, the criminal justice
system would simply cease to function and few
criminals, if any, would be brought to justice.
UNITED STATES v. CALVERT 391
S. REP. NO. 97-532 at 10 (1982) (emphasis added), reprinted
in 1982 U.S.S.C.A.N. 2515, 2516.
[6] The intent to retaliate against someone for being a wit-
ness therefore is itself an intent to obstruct the administration
of justice.
Calvert responds that, absent such a pending judicial pro-
ceeding, the enhancement in § 2J1.2(b)(1)(A) would apply
whenever there is injury or threatened injury to persons or
property. Calvert’s argument goes back to his cramped notion
of the justice system as it ignores one crucial element that is
present in any conviction, like his, for a violation of 18 U.S.C.
§ 1513(b): The retaliation against the individual must occur
because of the victim’s status as a witness in a past or present
proceeding. This element links a key component in the admin-
istration of justice — the service provided by a witness —
with the intent underlying the crime. It is this linkage that dis-
tinguishes the crime at issue from more general crimes
involving causing injury or threatened injury to someone. See
Duarte, 28 F.3d at 48-49. The intent to retaliate against some-
one because he or she was a witness includes within it
(because of the central role witnesses serve in the justice sys-
tem itself) the intent to hinder or impede the administration of
justice.
Nor does Calvert’s effort to festoon onto the intent element
found in the Guideline an across-the-board requirement for a
pending judicial proceeding or investigation find support in
the language of the Guideline. To begin, the critical phrase in
the Guideline (“in order to obstruct the administration of jus-
tice”) is, as one court has noted, “anything but self-defining,”
such that “[m]any kinds of actions and many kinds of out-
comes can fit linguistically within the phrase’s loosely woven
confines.” United States v. Weston, 960 F.2d 212, 219 (1st
Cir. 1992), abrogated on other grounds by Stinson v. United
States, 508 U.S. 36, 39-42 (1993). Whether the intent to com-
mit a particular act amounts to an intent to obstruct justice is
392 UNITED STATES v. CALVERT
necessarily defined by and dependent upon the criminal act in
question. The commentary to § 2J1.2(b)(1) bears out this
observation in relation to the crime of witness-retaliation.
Comment 5 to the Guideline’s application notes explicitly
contemplates application of the enhancement for a strict retal-
iatory act, without regard to whether a judicial proceeding is
pending: “The inclusion of ‘property damage’ under subsec-
tion (b)(1) is designed to address cases in which property
damage is caused or threatened as a means of intimidation or
retaliation (e.g., to intimidate a witness from, or retaliate
against a witness for, testifying).” USSG § 2J1.2(b)(1) cmt.
application note 5 (emphasis added). Similarly, the Back-
ground commentary describes among the “numerous
offenses” that “may constitute obstruction of justice . . . caus-
ing a witness bodily injury . . . in retaliation for providing tes-
timony . . . .” USSG § 2J1.2, cmt. background (emphasis
added). This is accentuated by the Background in the Guide-
line’s commentary recognizing that “the conduct covered by
this guideline is frequently part of an effort to avoid punish-
ment for an offense that the defendant has committed or to
assist another person to escape punishment for an offense.”
Id. That the conduct covered by the Guideline “frequently” is
done in an effort to thwart an identifiable proceeding or inves-
tigation against someone necessarily means that it does not
“always” have to be tied to such a proceeding.
Neither the Guideline nor this commentary states, or even
reasonably implies, that the “retaliation” referred to must take
place while a judicial proceeding is still pending. Rather, it is
the victim’s act of serving as a witness, not whether the wit-
ness retains any further utility in an ongoing or contemplated
proceeding, that the Guideline’s commentary views as the
critical element integrating the witness-retaliation statute
within the ambit of the Guideline’s terms. Absent some con-
trary indication, we accept as controlling these statements in
the commentary that purely retaliatory acts against a witness
would serve to impose the enhancement. See United States v.
Lambert, 498 F.3d 963, 966 (9th Cir. 2007) (“[The Guide-
UNITED STATES v. CALVERT 393
lines’] commentary is generally authoritative unless it violates
the Constitution or a federal statute, or is inconsistent with, or
a plainly erroneous reading of, that guideline” (internal quota-
tion marks omitted)).
[7] Calvert intended to retaliate against Clyde Overdorff for
his service as a witness in a past criminal trial; in doing so
Calvert’s offense was committed “in order to obstruct the
administration of justice.” The imposition of the eight-level
enhancement in § 2J1.2(b)(1) was proper.
AFFIRMED.
B. FLETCHER, Circuit Judge, specially concurring:
Because I agree that the eight-level sentencing enhance-
ment in U.S.S.G. § 2J1.2(b)(1) (Nov. 2000) was properly
applied in this case, I concur in the judgment. The Commen-
tary to the Guidelines contemplate application of the
§ 2J1.2(b)(1) enhancement for a strictly retaliatory act, thus
reaching Calvert’s crime of conviction. U.S.S.G. § 2J1.2(b)(1)
cmt. n.5 (“The inclusion of ‘property damage’ under subsec-
tion (b)(1) is designed to address cases in which property
damage is caused or threatened as a means of intimidation or
retaliation (e.g., to intimidate a witness from, or retaliate
against a witness for, testifying.”) (emphasis added). More-
over, Calvert’s relevant offense, 18 U.S.C. § 1513(b) (retalia-
tion against a witness), is predicated on an intent to harm a
witness and his jury made a specific finding that Calvert had
such an intent. Little else is required to resolve Calvert’s
appeal.
The majority opinion, although advancing some worth-
while views on how the judicial system should operate, con-
cerns me because it carries the troubling potential of
mandating legal standards on issues that are not before us, and
394 UNITED STATES v. CALVERT
have not been considered in the context of concrete facts rais-
ing genuine legal issues. The discussion of the interrelation-
ship between retaliation against witnesses and the
administration of justice generally is my concern. Maj. op. at
385-88. Nearly all of this discussion is dicta that is unneces-
sary to the resolution of this appeal. This is a Sentencing
Guidelines case, and we do not assist the district courts by
offering philosophical perspectives where concrete guidance
is needed. Although I am reluctant to compound the problem
with a separate concurrence, I feel compelled to clarify what
we do not decide today. We do not identify or catalog “essen-
tial components” in the administration of justice relevant to
§ 2J1.2(b)(1). Maj. op. at 387. Nor do we embrace or reject
a “direct and immediate impact” standard for the application
of a § 2J1.2(b)(1) enhancement. Maj. op. at 387. We do not
decide that § 2J1.2(b)(1) is properly applied where a defen-
dant’s acts affect the public’s “respect and cooperation” in
upholding the law. Id. We do not generally deem “irrelevant”
the timing of a defendant’s retaliatory act in determining
whether § 2J1.2(b)(1) applies, or decide that § 2J1.2(b)(1)
applies where a defendant’s acts merely impose a “chilling
effect” in unrelated proceedings. Id. Finally, we do not hold
that § 2J1.2(b)(1) universally applies in all cases “with or
without any connection to an identifiable discrete proceed-
ing.” Maj. op. at 388. The court’s commentary on these points
is purely surplusage. Although much of this language is
spurred by the majority’s good-faith desire to explain its deci-
sion, I reiterate that these words carry with them the troubling
potential—as dicta often does—to be seen in future cases as
legal standards that we have neither considered nor adopted.
We are charged with deciding only those issues presented
in an appeal, based on the record before us. We invite mis-
chief by straining unnecessarily to do more.