FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 16, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
___________________________________ Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-4200
JORDAN HALLIDAY,
Defendant-Appellant.
____________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:09-CR-00413-TS)
____________________________________
Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack, Federal
Public Defender, and Kent R. Hart, Assistant Federal Public Defender, on the brief),
Salt Lake City, Utah, for Defendant-Appellant.
Diana Hagen, Assistant United States Attorney (Carlie Christensen, United States
Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.
____________________________________
Before KELLY, BALDOCK, and EBEL, Circuit Judges.
____________________________________
BALDOCK, Circuit Judge.
____________________________________
Defendant challenges his sentence for criminal contempt for refusing to testify
before a grand jury. The sentencing guideline provision for contempt requires the district
court to “apply the most analogous offense guideline.” The district court in this case
applied the guideline for obstruction of justice. Defendant argues the district court should
have applied the provision for failure to appear as a material witness. He also challenges
his sentences as substantively unreasonable. Exercising jurisdiction pursuant to 28
U.S.C. § 1291, we affirm.
I.
A grand jury in the District of Utah subpoenaed Defendant as part of an
investigation into attacks on three mink farms. Defendant is the founder of the Animal
Defense League of Salt Lake City. The Government believed Defendant had information
relevant to the grand jury’s investigation. Defendant, however, denies that he knew
anything about the attacks. At his first appearance before the grand jury, Defendant
refused to take the oath, and answered virtually every question with “no comment.” Six
days later, Defendant sent a series of text messages to William Viehl, a target in the grand
jury’s investigation who was subsequently convicted in connection with two of the mink
farm attacks. In the first message, Defendant told Viehl that “the 3 of us need to sit down
and have a talk so we are all on the same page.” Viehl asked if Defendant had “been
talked to again.” Defendant responded, “No, not yet! I’ve just been hearing some
rumours and I want to make sure we are all on the same page.” He added that “it’s
involving the GJ.”
The grand jury again subpoenaed Defendant. At this second grand jury
appearance Defendant took the affirmation, but again answered “no comment” to nearly
every question. During a recess, the district court instructed Defendant that he must
answer questions unless he had a legally recognizable privilege. When the grand jury
reconvened, Defendant pleaded a Fifth Amendment privilege to every question, including
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questions such as where he lived or if he intended to answer any questions. Later that
day, Defendant again texted Viehl. He said, “Got the court extended until the 13. We
need time to file motions and such.” He also said that “grand juries are fucked and every
activist I know . . . would agree and would/have resisted grand juries as well.”
Referencing the comedian Dave Chappelle, Defendant said,
Well, after my dave chapelle . . . I plead the 5th routine today. I was
making some fo [sic] the gj laugh. I was sayin’ like “1-2-3-4-5th!”. And
they asked to see and they asked to see and they asked her to grant me more
time as well, because they needed more time. The prosecutor was pissed as
fuck.
At Defendant’s civil contempt hearing, the Government granted Defendant
immunity for his grand jury testimony. The court determined Defendant could not claim
a Fifth Amendment privilege. After Defendant confirmed to the court that he still refused
to answer grand jury questions, the court found Defendant in civil contempt and ordered
him incarcerated. Defendant remained in custody for 108 days, until the grand jury’s
term expired.
Thereafter, another grand jury indicted Defendant for criminal contempt in
violation of 18 U.S.C. § 401. He pleaded guilty to that offense. The sentencing guideline
for contempt, U.S.S.G. § 2J1.1, incorporates U.S.S.G. § 2X5.1, which directs the court to
“apply the most analogous offense guideline.” Defendant argued that the most analogous
guideline was U.S.S.G. § 2J1.5, entitled “Failure to Appear by Material Witness.” The
district court, however, applied the guideline provision recommended by the probation
office, U.S.S.G. § 2J1.2, entitled “Obstruction of Justice.” The district court determined,
based on its factual findings, that obstruction of justice was the most analogous offense.
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The court found:
Defendant’s refusal to follow a lawful order to testify before the
grand jury because it might lead to indictments is . . . an effort to impede
the grand jury because a witness’s refusal to testify is motivated by a desire
to impede prosecution.
The fact that two individuals were indicted by the grand jury does
not negate Defendant’s express intent to impede prosecution. Defendant’s
expressed intent not to assist the government’s efforts to indict was not
limited to those two particular individuals. Further there is at least one
similar offense for which no one has yet been indicted.
Section 2J1.2 and Defendant’s criminal history category yielded a guideline range of 10
to 16 months. The court sentenced Defendant to 10 months imprisonment, but granted
his motion for supervised release pending this appeal. Defendant now appeals his
sentence.
II.
We review the reasonableness of a sentence under the “familiar abuse-of-
discretion standard of review.” Gall v. United States, 552 U.S. 38, 46 (2007).
“Reasonableness review has a procedural and substantive component.” United States v.
Martinez, 610 F.3d 1216, 1223 (10th Cir. 2010). Procedural reasonableness focuses on
whether the district court erred in “calculating or explaining the sentence.” United States
v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). Substantive reasonableness focuses
on whether the length of the sentence is reasonable in light of the factors contained in 18
U.S.C. § 3553(a). Id. Defendant challenges both the procedural and substantive
reasonableness of his sentence.
A.
Defendant argues that the district court erred procedurally in applying the
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sentencing guideline for obstruction of justice. The parties dispute the standard of
review. The Government, citing only cases from other circuits, argues that we should
give due deference to the district court’s selection of the most analogous guideline.
Defendant, citing United States v. Munoz-Tello, 531 F.3d 1174, 1181 (10th Cir. 2008),
argues that we review the selection de novo. Unfortunately, the cases in our circuit are
likely to perpetuate such confusion. When reviewing the district court’s calculation of
the guidelines, “we review legal questions de novo and factual findings for clear error,
giving due deference to the district court’s application of the guidelines to the facts.”
United States v. Mollner, 643 F.3d 713, 714 (10th Cir. 2011) (quoting Munoz-Tello, 531
F.3d at 1181). Where a district court must select the most analogous guideline, we have
stated the rule two ways. In United States v. Cherry, 572 F.3d 829, 831 (10th Cir. 2009),
we said we “review de novo whether the facts found by the court support the application
of the guideline it selected.” (citing United States v. Fortier, 180 F.3d 1217, 1225 (10th
Cir. 1999)). Thus, under Cherry, once we have reviewed the district court’s factual
findings for clear error, we review its selection of the most analogous guideline de novo.
Yet in United States v. Rakes, 510 F.3d 1280, 1287 (10th Cir. 2007), we said we review
the district court’s determinations in selecting the most analogous guideline “de novo to
the extent they rest on legal bases, and for clear error to the extent they rest on factual
findings.” We went on to say in Rakes that a case involving “only an interpretation of the
Guidelines” was subject to de novo review. Id. Rakes appears to conflict with Cherry to
the extent it suggests that in some cases we might review the selection of the appropriate
guideline (as opposed to the underlying facts) for clear error. We need not resolve this
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apparent discrepancy here, because we believe the district court selected the appropriate
guideline under either standard of review.
Even if we review de novo whether the district court selected the most analogous
guideline, we first must review the district court’s underlying factual findings for clear
error. Mollner, 643 F.3d at 714. Defendant argues that obstruction of justice is not the
most analogous offense because he refused to testify “as a matter of conscience based on
his personal beliefs,” rather than out of any intent to impede the grand jury. He argues
that he knew nothing about the mink farm attacks, and that his refusal to testify therefore
did not obstruct justice. The district court found, however, that Defendant was
“motivated by a desire to impede prosecution.” The court noted that Defendant
“admit[ted] his purpose was a refusal to assist the government in its efforts to indict
others.” We review this factual finding for clear error. “To constitute clear error, we
must be convinced that the sentencing court’s finding is simply not plausible or
permissible in light of the entire record on appeal, remembering that we are not free to
substitute our judgment for that of the district judge.” United States v. McClatchey, 316
F.3d 1122, 1128 (10th Cir. 2003) (quoting United States v. Torres, 53 F.3d 1129, 1144
(10th Cir. 1995)).
We faced an almost identical case in United States v. Voss, 82 F.3d 1521 (10th
Cir. 1996). There, the district court sentenced the defendants for contempt using § 2J1.2.
Id. at 1531. Like Defendant, the Voss defendants argued the “most analogous” guideline
was actually U.S.S.G. § 2J1.5. Id. In Voss, we noted the First Circuit’s holding in
United States v. Underwood, 880 F.2d 612, 620 (1st Cir. 1989), that § 2J1.5 was most
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analogous where the district court had found the defendant acted in good faith and did not
intend to obstruct justice, but only intended “not to testify.” We distinguished
Underwood, however, because the district court in Voss specifically found the defendants
were obstructing justice by “preventing the Grand Jury from getting records that most
probably would have been of assistance to the Grand Jury.” Voss, 82 F.3d at 1531. We
determined that the district court’s finding was not clearly erroneous. Id. Reviewing the
selection of the guideline de novo, we said, “[i]n light of the district court’s factual
finding, we believe that the district court quite properly sentenced the defendants under
§ 2J1.2, as this was the most analogous guideline under the circumstances of this case.”
Id. at 1531–32.
In this case, as in Voss, there was ample evidence to support the district court’s
finding that Defendant intended to impede prosecution. Defendant was in frequent
communication with Viehl, who was ultimately convicted in two mink farm attacks. He
told Viehl they needed to “get on the same page” after Defendant’s first grand jury
appearance. He also expressed a disdainful view of grand juries and said he intended to
“resist” the grand jury. These facts were certainly sufficient for the district court to
conclude Defendant was “motivated by a desire to impede prosecution.” In short, the
district court’s factual findings were not clearly erroneous.
Based on the district court’s factual findings, we cannot say that it selected the
wrong guideline provision, even on de novo review. In fact, the Guidelines themselves
suggest applying § 2J1.2 in certain contempt cases. The application notes to § 2J1.1, the
guideline for contempt, say, “Because misconduct constituting contempt varies
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significantly . . ., the Commission has not provided a specific guideline for this offense.
In certain cases, the offense conduct will be sufficiently analogous to §2J1.2 (Obstruction
of Justice) for that guideline to apply.” U.S.S.G. § 2J1.1 commentary n.1 (emphasis
added). Although this does not mean § 2J1.2 is the appropriate guideline in every
contempt case, the commentary emphasizes that these decisions are “highly context-
dependent.” Id. In this case, the district court specifically found that Defendant intended
to obstruct justice. This finding makes the case fit squarely within “obstruction of
justice.” Defendant’s refusal to testify over a long period and his statements about
“resisting” the grand jury make his conduct more serious than simply failing to appear as
a material witness. Thus, the district court did not err in selecting § 2J1.2 as the most
analogous guideline.
B.
Defendant next argues that his sentence is substantively unreasonable. Under our
substantive review, a sentence that is properly calculated under the guidelines is entitled
to a rebuttable presumption of reasonableness. United States v. Beltran, 571 F.3d 1013,
1018 (10th Cir. 2009). “The fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is insufficient to justify reversal of
the district court.” Gall, 552 U.S. at 51. Rather, “[w]e reverse only when the district
court ‘renders a judgment that is arbitrary, capricious, whimsical or manifestly
unreasonable.’” Martinez, 610 F.3d at 1227 (quoting Friedman, 554 F.3d at 1307).
Defendant argues his sentence is unreasonable because a sentence of probation
would have satisfied the sentencing factors in 18 U.S.C. § 3553(a). He says his
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“exemplary conduct” since becoming an adult and throughout his pretrial release
demonstrated that incarceration was not necessary to deter criminal conduct,
see § 3553(a)(2)(B), or protect the public from further crimes, see § 3553(a)(2)(C). He
also argues that his ability to overcome prior mental disorders and his plans to further his
education also supported probation under § 3553(a)(2)(D). Yet even if these factors
weighed in Defendant’s favor, other factors did not. Section 3553(a)(1) requires the
district court to consider the “nature and circumstances of the offense and the history and
characteristics of the defendant.” The district court observed at sentencing that
Defendant “admit[ted] his purpose was a refusal to assist the government in its efforts to
indict others. That is a serious offense.” The district court expressed concern about
Defendant’s criminal history, which included a juvenile adjudication for resisting arrest
and a more recent conviction for illegal picketing in a residential neighborhood.
The district court also noted Defendant’s “contempt for the grand jury.” Section
3553(a)(2)(A) specifically requires the district court to consider the need for the sentence
“to reflect the seriousness of the offense” and “to promote respect for the law.” The court
observed that Defendant “had so little regard for the grand jury that he later texted a
friend to boast of the childish and churlish way he had just acted before the grand jury.”
Finally, the district court rejected Defendants argument that the sentence would create an
unwarranted disparity under § 3553(a)(6). Defendant argued to the district court that his
initial guideline range would result in an unwarranted disparity because it was similar to
the sentences given to those actually convicted of animal enterprise terrorism in the mink
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farm attack, Viehl and Hall, even though Defendant’s conduct “paled in comparison.”1
The district court properly rejected this disparity argument. The district court sentenced
Viehl to 24 months imprisonment, Hall to 21 months, and required them jointly and
severally to pay $66,753 in restitution. United States v. Viehl, No. 09-cr-0119-DB, Dkt.
Nos. 97, 142 (D. Utah). Defendant’s actual sentence was significantly lower than Viehl
and Hall’s sentences, thus removing any potential disparity. The district court properly
considered the § 3553(a) factors and did not impose an unreasonable sentence in light of
the factors.
Defendant claims a ten-month sentence “is extreme and has no equal or
comparison anywhere in the country.” In fact, we need not look beyond this circuit to
find an analogous case. In Voss, the three defendants were directors of an organization
that espoused “dissident views regarding the federal reserve and the income tax systems
and advocat[ed] the return to currency backed by gold and/or silver.” Voss, 82 F.3d at
1523. A grand jury investigated the organization for tax fraud, and the defendants
refused to comply with subpoenas of their records. A jury found the defendants guilty of
criminal contempt, but acquitted them on the substantive charges. Id. at 1524. The
district court sentenced them to terms ranging from twelve to twenty-four months, all
sentences greater than Defendant’s. Id. at 1524. Defendant attempts to distinguish Voss
on the basis that the Voss defendants knowingly refused to disclose evidence, whereas
1
Defendant’s presentence report recommended a three-level increase under
U.S.S.G. § 2J1.2(b)(2) for the offense resulting in substantial interference with the
administration of justice. This put Defendant’s recommended guideline range at 15 to 21
months. The district court, however, rejected this three-level increase, which yielded a
guideline range of 10 to 16 months.
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Defendant “stated he had no knowledge of any criminal activity” and “chose not to testify
because he believed that prosecutors were unfairly targeting the animal rights
community.” The district court could have reasonably rejected Defendant’s assertion that
he knew nothing of the attacks based on Defendant’s text message to Viehl that the
needed to “get on the same page.” Furthermore, we fail to see a relevant distinction
between the Voss defendants refusing to cooperate based on their objections to paying
taxes and Defendant refusing to testify based on his objections to the prosecution of
animal rights activists. Voss establishes that Defendant’s sentence was neither extreme
nor unprecedented.
Other circuits have also upheld longer sentences than Defendant’s. In United
States v. Marquardo, 149 F.3d 36, 39 (1st Cir. 1998), the defendant refused to testify to a
grand jury and was incarcerated for fifteen months for civil contempt. The district court
then sentenced him to fifteen months’ imprisonment for criminal contempt. Id.
Defendant also argues that his 108-day incarceration for civil contempt was itself a
sufficient sentence to meet the goals of § 3553(a). Marquardo disposes of this argument
as well. As in Marquardo, the district court here could have reasonably concluded the §
3553(a) factors required imposition of a criminal sentence in addition to civil coercive
custody. Accordingly, we cannot conclude that Defendant’s sentence was manifestly
unreasonable.
AFFIRMED.
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