United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS December 12, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-30248
UNITED STATES of AMERICA,
Plaintiff-Appellee,
v.
SHAWN DECAREAUX KILGARLIN,
Defendant-Appellant.
Appeal from the United States District Court for the
Middle District of Louisiana
No. 3:02-cr-00007
Before BENAVIDES, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Appellant, Shawn Decareaux Kilgarlin, appeals her guidelines
sentence imposed based upon convictions for mail fraud (18 U.S.C.
§§ 1341 and 1346) and obstruction of justice (18 U.S.C. § 1503).
Also, for the first time on appeal, Appellant argues that the mail
fraud statute was unconstitutional as applied in her case. After
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
reviewing the record, we find no reversible error and affirm.
Appellant owned and operated Enviro-Comp Laboratories, Inc.,
a Louisiana corporation that conducted, among other things, drug
testing. Anderson Industrial Scaffolding Services, Inc., (AIS) sent
two employees to Enviro-Comp to have blood drawn for a random drug
test. Appellant did not have the specimens tested but nonetheless
mailed a $17 invoice to AIS. AIS paid the bill my mailing a check
to Enviro-Comp. While Appellant was on release awaiting sentencing
for other convictions, she fabricated several documents and forms
purporting to show that the above-referenced specimens had been
tested and provided these documents to the grand jury. The false
documents provided to the grand jury formed the basis of an
obstruction of justice charge in the instant case. As set forth
below, she was also charged with two mail fraud counts.
Appellant was charged by grand jury indictment with (1)
devising a scheme to defraud in violation of the mail fraud statute,
(2) causing AIS to mail a check as payment for the purported drug
testing in violation of the mail fraud statute, and (3) obstructing
justice based on fabricating the documents given to the grand jury.
At trial, Appellant called only one witness, who testified that
Appellant physically retrieved the check from AIS instead of causing
it to be mailed as charged in count two of the indictment. The jury
acquitted Appellant of count two and convicted her of the two
remaining counts. Subsequent to the Supreme Court’s decision in
2
United States v. Booker, 125 S. Ct. 738, 765 (2005), the district
court sentenced Appellant to a guidelines sentence of 46 months.
I. Sentencing Challenges
A. § 3C1.1
Appellant argues that the district court erred in assessing a
two-level enhancement for obstruction of justice pursuant to
U.S.S.G. § 3C1.1 based on the finding that she had suborned the
perjury of Cherie Courtney, the sole defense witness. Courtney was
a former employee of AIS. The crux of Courtney’s testimony was that
Appellant had physically retrieved the check from AIS instead of
causing it to be mailed as charged in count two of the indictment.
Appellant asserts that there is insufficient evidence to
support the findings. This Court reviews a finding of obstruction
of justice for clear error. United States v. Holmes, 406 F.3d 337,
363 (5th Cir. 2005). This Court has explained that to be adequate
a district court's findings "must identify false testimony
concerning a material matter, indicate the witness testified with
willful intent to provide false testimony, and indicate the
defendant procured the witness's testimony.” United States v.
Johnson, 352 F.3d 146, 148 (5th Cir. 2003).1
1
Appellant asserts that the district court made inadequate
findings to support the enhancement. The district court adopted
the findings in the Presentence Report (PSR), which provided that
"Courtney admitted to Agent McDowell that it was an intentionally
untruthful statement that Ms. Kilgarlin picked up a $17 check.”
3
Appellant asserts that the evidence is insufficient to support
the findings, claiming that the “record is unclear . . . whether
such testimony was perjurious as opposed to simply inaccurate.”
Contrary to Appellant’s assertion, there is evidence that Courtney
admitted to Agent McDowell that it was an intentionally untruthful
statement that Appellant picked up the check. Courtney explained
to Agent McDowell that she lied in her testimony about Appellant
picking up the check because she believed that Appellant was
innocent and that both Appellant and her attorney had insinuated
that such testimony was necessary to exonerate Appellant. Thus, the
district court had sufficient evidence to conclude that the
testimony was perjured.
Appellant further asserts that there was no evidence that she
played any role in suborning the perjury. She contends that
“nowhere in the testimony of McDowell or in his reports is there any
indication that Kilgarlin attempted to influence Courtney in any way
to testify falsely.” However, at Appellant’s bond hearing, Agent
McDowell testified that Courtney admitted to him that Appellant
contacted her the week prior to trial and “insinuated that the
Thus, the district court made the requisite finding that the
testimony was false. Further, it appears undisputed that the
testimony was material. In any event, the district court found that
Courtney’s false testimony resulted in Appellant’s acquittal of
count two, which constitutes a finding of materiality. Also, as
Appellant admits, the district court found that she procured
Courtney’s false testimony. Accordingly, the district court’s
findings encompass all the factual predicates for a finding of
suborning perjury and thus are adequate to support the enhancement.
4
evidence that they needed to present to the court was that she
actually came and picked up the check, versus the check being sent
through the mail.” The evidence is sufficient to support the
finding that Appellant procured Courtney’s testimony.
Finally, in a footnote, Appellant argues that because the
perjured testimony involved only a mail fraud count (of which she
was acquitted), the district court erred in applying this
enhancement to the sentence for the obstruction of justice
conviction. Prior to the time of Appellant’s offense, the
Sentencing Commission amended § 3C1.1 by clarifying that the
“obstruction must relate either to the defendant’s offense of
conviction (including any relevant conduct) or to a closely related
case.” U.S.S.G. Manual, Appendix C, amend. 581 (Nov. 1, 1998).
Here, the § 3C1.1 enhancement based upon Appellant’s suborning
Courtney’s testimony was related to her obstruction of justice
conviction. Appellant is not entitled to relief with respect to
this issue.
B. § 2J1.2
Appellant was convicted of obstruction of justice for
fabricating documents she provided to the grand jury in violation
of 18 U.S.C. § 1503. She contends that the three-level enhancement
for substantial interference with the administration of justice
pursuant to § 2J1.2 for fabricating documents constitutes double
counting. However, double counting is not prohibited unless the
5
guideline in question forbids it. See United States v. Box, 50 F.3d
345, 359 (5th Cir. 1995). As explained by the Sixth Circuit,
§ 2J1.2 simply “increases the punishment for a defendant who
obstructs justice when such obstruction has negative consequences.”
United States v. Tackett, 193 F.3d 880, 886 n.3 (6th Cir. 1999).
Here, the government contends the substantial expenditure of
government and court resources constituted the negative
consequences. See § 2J1.2, comment. (n.1).
The crux of the instant issue is whether the district court
clearly erred in finding that substantial resources were expended
because of Appellant’s falsification of documents. In support of
its contention that the expenditure was substantial, the government
asserts that the fabricated documents appeared legitimate on their
face and that the agents had to learn Enviro-Comp Laboratories’s
chain of custody procedures for the specimens as well as the
operating procedures of lab and computer equipment, including the
Hitachi 717. The PSR provided that:
Ms. Kilgarlin falsified numerous documents that she
provided to a federal grand jury in an effort to conceal
her actions. The defendant attempted to obstruct the
grand jury’s investigation of this offense by providing
the grand jury with a variety of documents which reflect
that the drug tests were actually performed. Numerous
documents were provided which were printed on the
standard company forms and appear on their face to be
legitimate. Indeed, the false nature of these documents
becomes apparent only after analyzing the documents and
comparing the story told through the documents with
other evidence, such as standard company procedure and
witness testimony.
6
(emphasis added). As previously noted, the district court adopted
the findings in the PSR.
At sentencing, Appellant objected to this enhancement, arguing
that there had not been a substantial expenditure of time and
resources by the government. In response, the district court found
as follows:
I think the government’s position is well-taken
that this is not your garden variety obstruction, even
though the substantial interference—even though Ms.
Kilgarlin has already been convicted of obstruction.
This was a fairly complicated case in terms of the
documents that were presented to and otherwise falsified
and presented to the grand jury. And again it was done
by Ms. Kilgarlin.
And as Ms. Jones [the prosecutor] properly noted,
because of the nature of the case this was not something
that you could just pick up a document and look at it
and say, oh, this is false. It required people who knew
this business and the procedures employed in this
business and the documents used in this business to look
at the stuff and say, well, this is not what it purports
to be.
So the government did have to go through some
additional investigation, and trouble, expense, use of
time and resources in order to unravel the webs created
by Ms. Kilgarlin.
Although the court did not use the precise phrase “substantial
expenditure,” the above findings, which were in response to defense
counsel’s argument that the expenditure of resources was not
substantial, clearly indicate that the court did find a substantial
expenditure. A review of the record indicates that the agents of
the Environmental Protection Agency did have to conduct further
investigation regarding the chain of custody procedures and the
7
computer and lab equipment to prove the documents had been
fabricated. Likewise, the trial was lengthened by demonstrating the
fruits of this additional investigation to the jury. We note that,
in the context of addressing a similar guideline enhancement for
perjury, § 2J1.3, this Court has concluded that “where a defendant
actively conceals important evidence of which [he or] she is the
only source, a court may infer that the defendant’s interference
with the administration of justice was substantial.” United States
v. Norris, 217 F.3d 262, 274 (5th Cir. 2000) (internal quotation
marks and citation omitted) (brackets in opinion). In the instant
case, to the extent that Appellant was the only source of the
information she was concealing, we may infer that the interference
with the administration of justice was substantial. Under these
circumstances, we are not persuaded that the district court clearly
erred in finding that Appellant’s fabrication of documents caused
unnecessary expenditure of substantial government and court
resources.2
2
In a footnote, Appellant cites authority from other
circuits indicating that the “substantial interference” must be
with respect to an offense other than the obstruction of justice
conviction. We note that the cases cited involve substantial
interference in the context of § 2J1.3 (an enhancement for
perjury), not the instant guideline, § 2J1.2 (obstruction of
justice). Although the instant question has been raised before
this Court in the context of § 2J1.2, ultimately we did not find it
necessary to decide the issue. United States v. Harrington, 82
F.3d 83, 87 n.1 (5th Cir. 1996). Nonetheless, we noted that we had
rejected that argument in the context of § 3C1.1 and such an
argument in the context of § 2J1.2 was “less persuasive than [the]
rejected argument.” Id. But cf. Norris, 217 F.3d at 273
8
C. § 2F1.1(b)(2)(A)
Appellant argues that the district court erred in assessing a
two-level enhancement for more than minimal planning pursuant to
U.S.S.G. § 2F1.1(b)(2)(A).3 The government does not respond to this
claim on the merits; instead, it replies that any error is harmless.
Thus, we will assume without deciding that this enhancement was
error.
This Court has recognized “that the finding of an incorrect
application of the Guidelines shifts the burden to the proponent of
the sentence—whether that be the defendant or the government—to
persuade the court of appeals that the district court would have
imposed the same sentence absent the erroneous factor.” United
(concluding that the “expenses incurred with the investigation and
prosecution of [the] instant perjury offenses may not form the sole
basis for applying section 2J1.3(b)(2)’s enhancement”). Moreover,
we opined that “[a]s a practical matter, it would seem that in most
cases the investigation of the underlying offense and of the
obstruction charge would be almost inextricably related.” Id. at
86-87. In the case at bar, the resources spent investigating the
fabricated documents were inextricably related to proving the
offense of the scheme of mail fraud, which was count one of the
indictment. Thus, even assuming that § 2J1.2 requires the
substantial interference to be with respect to an offense other
than the obstruction of justice conviction, such a requirement
would be satisfied in this case.
3
It should be noted that this enhancement was deleted by
consolidation with § 2B1.1 effective November 1, 2001. U.S.S.G.
Manual app. C 617 (2003). The PSR indicates that the 2000 edition
of the Guidelines Manual was used because it was “less onerous than
the November 1, 2003 Guidelines Manual,” which was in effect at the
time of sentencing. See also United States v. Kimler, 167 F.3d
889, 893 (5th Cir. 1999) (explaining that a district court must use
the sentencing guidelines in effect at the time of sentencing
unless it would violate the Ex Post Facto Clause).
9
States v. Tello, 9 F.3d 1119, 1129 (5th Cir. 1993) (citation,
brackets, and internal quotation marks omitted). As the government
asserts, the PSR grouped the convictions for mail fraud and
obstruction of justice pursuant to U.S.S.G. § 3D1.2(c).
Accordingly, the PSR determined the offense level based on the
obstruction of justice conviction because it was “the more serious
offense.” In other words, the obstruction of justice offense level
was higher than the mail fraud offense level. Thus, even assuming
the two-point enhancement of the mail fraud offense constituted
error, it did not affect Appellant’s sentencing guideline range
because it was determined without reference to the mail fraud
offense. The sentencing range remains the same with or without the
enhancement.
After reviewing the record, we are convinced that the error was
harmless. Immediately prior to pronouncing sentence, the district
court addressed Appellant as follows:
This is your second felony conviction. The conduct
committed in this offense is, for all practical
purposes, the same criminal conduct that you engaged in
in your first conviction, fraudulent conduct and
obstructive conduct, seeking to cover up and allow you
to escape punishment for your crimes. I see no
indication in anything that I have looked at that you
have any degree of remorse for anything that you have
done. It appears to the court that you are a
manipulative person who is able to, at least in these
last two cases, you have been able to get other persons
to commit serious criminal offenses to assist you to
escape responsibility for what you have done.
Information was provided by Ms. Fournet [defense
counsel] in the form of a sentencing memorandum which
10
also contained references to a substance abuse problem.
There were tests and evaluations by Dr. Farina, if I
recall correctly. I looked at that. And I couldn’t
help but note that this information is completely at
odds with the prior evaluations in the first presentence
report. It’s completely at odds with the information
that you provided to the probation officer in this
report regarding the existence of any substance abuse
problem. Again, the court views that as manipulative
conduct.
. . . For all of these reasons, the court is
strongly tempted to impose what, if the guidelines were
mandatory, what would be an upward departure. Stated
quite frankly, Ms. Kilgarlin, I’m strongly tempted, and
I think the circumstances warrant the imposition of a
maximum sentence, because prior half steps have not
worked.
You were convicted of this same conduct before
Judge Parker. And Judge Parker gave you the benefit of
a break; gave you the benefit of probation. You took
advantage of that by committing this offense while you
were on release for the offense that Judge Parker
sentenced you for.
. . . .
I am not going to impose a maximum sentence, but I
am going to sentence at what would have been the upper
end of the guidelines range had they been mandatory in
this case. I have considered the sentencing guidelines.
I have considered the sentencing factors . . . . I
have considered the circumstances of this offense. And
for the reasons I have just indicated, the court feels
that the following sentence is appropriate.
(emphasis added).
The district court’s comments just prior to imposing the
sentence demonstrate that the court would have imposed the same
sentence absent the erroneous enhancement. Tello, 9 F.3d at 1129.
Any error in this enhancement did not affect the sentence and was
11
harmless.
D. Booker Reasonableness
Appellant contends that regardless of whether her 46-month
sentence was calculated appropriately under the guidelines, it is
unreasonable in light of the factors enumerated in section 3553(a).
See United States v. Booker, 125 S. Ct. 738, 765 (2005).4 She
argues that there are numerous reasons why the court should have
exercised its discretion to impose a sentence below the calculated
range. She asserts, among other things, that the billing involved
in the mail fraud was only $17, that the company suffered no loss
from her conduct, that her son was two years old, and that she
suffered from physical and emotional problems.
In this case, the district court sentenced Appellant within the
correct guidelines range.5 “Given the deference due the sentencing
judge's discretion under the [Booker] regime, it will be rare for
a reviewing court to say such a sentence is ‘unreasonable.’” United
States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126
S.Ct. 43 (2005). Appellant has not shown that her circumstances are
4
Appellant recognizes that this Court has concluded that
Booker did not alter the standard of review to determine whether
the district court properly interpreted and applied the guidelines.
See United States v. Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005).
She apparently raises it to preserve it for further review.
5
As previously discussed, although there may have been error
in calculating the mail fraud offense level, that did not change
the ultimate sentencing range for the grouping of the offenses.
12
“rare.” Moreover, in view of Appellant’s subornation of perjury
during the instant trial and her prior convictions for making a
material false statement and witness tampering, she has failed to
demonstrate that her post-Booker guidelines sentence was
unreasonable.6
II. Constitutionality of Mail Fraud Statute as Applied
Appellant admits that she raises for the first time on appeal
the claim that the mail fraud statute, 18 U.S.C. §§ 1341 and 1346,
was unconstitutional as applied to an independent contractor and
that therefore it is reviewed for plain error. See United States
v. Olano, 507 U.S. 725, 113 S.Ct. 1770 (1993). We have found no
authority holding that the mail fraud statute is unconstitutional
as applied to an independent contractor. To the contrary, the
Eighth Circuit has expressly rejected the argument that the mail
6
Appellant also argues that Booker afforded the sentencing
court discretion to depart downward from the guidelines. In a
footnote, Appellant mentions that she requested in the district
court a downward departure under §5K2.0(3), which involves
departures based on circumstances present to a degree not
adequately taken into consideration in the guidelines. To the
extent that Appellant is challenging the district court’s refusal
to downwardly depart, this Court does not have jurisdiction to
review a district court’s refusal to grant a downward departure
from the guidelines unless the refusal was based on the sentencing
court’s erroneous belief that it lacked the authority to depart.
United States v. Buck, 324 F.3d 786, 797 (5th Cir. 2003).
Appellant makes no such allegation. Booker does not affect this
holding. See e.g., United States v. Puckett, 422 F.3d 340, 345
(6th Cir. 2005); United States v. Frokjer, 415 F.3d 865, 874-75
(8th Cir. 2005).
13
fraud statute requires the breach of a fiduciary duty. United
States v. Ervasti, 201 F.3d 1029, 1036 (8th Cir. 2000). Further,
Appellant’s reliance on United States v. Brumley, 116 F.3d 728 (5th
Cir. 1997), is misplaced.7 Accordingly, even assuming that the
statute was unconstitutional as applied to Appellant, which we
doubt, such error would not be plain. Having failed to demonstrate
plain error, Appellant is not entitled to relief.8
The district court’s judgment is AFFIRMED.
7
Unlike the case at bar, this Court was not faced with an
independent contractor scenario; instead, the argument urged by the
appellant in Brumley was that neither the plain language of § 1346
nor its legislative history expanded the types of victims protected
by the statute to include a state employer. 116 F.3d at 730.
Ultimately, this Court rejected Brumley’s claims and found the
statute constitutional. Id.
8
Appellant also raises for the first time on appeal the
claim that her conduct lacked sufficient nexus with interstate
commerce in violation of the Commerce Clause. Assuming that this
issue has been adequately raised in the original brief, Appellant
has not cited a case in which application of the mail fraud statute
was unconstitutional under the Commerce Clause. Moreover, this
Court expressly rejected the argument that the Commerce Clause does
not support § 1346. Brumley, 116 F.3d at 730. Appellant cannot
show error, much less plain error.
14