United States v. Smith

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1732
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Jeffrey Smith, *
*
Appellant. *
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Submitted: October 21, 2011
Filed: December 27, 2011
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Before RILEY, Chief Judge, SHEPHERD, Circuit Judge, and WEBBER,1 District
Judge.
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RILEY, Chief Judge.

Jeffrey Smith pled guilty to knowingly and intentionally distributing five or
more grams of actual (pure) methamphetamine in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B). The United States Probation Office prepared a presentence
investigation report (PSR) calculating an advisory sentence range of 135 to 168
months under the United States Sentencing Guidelines (U.S.S.G. or Guidelines). Over

1
The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri, sitting by designation.
Smith’s objection, the district court2 adopted the advisory Guidelines range and
sentenced Smith to the minimum recommended sentence of 135 months
imprisonment. Smith appeals the district court’s sentencing decision, and we affirm.

I. BACKGROUND
A. Facts
On June 4, 2010, Smith sold 27.52 grams of 99% pure methamphetamine for
$2,500 to Special Agent Ryan Moore, an undercover agent with the Iowa Division of
Narcotics Enforcement. The confidential informant who initially introduced Smith
to Special Agent Moore was present for the sale. On June 17, 2010, officers with the
North Central Iowa Narcotics Task Force executed a warrant to search Smith and his
home, discovering methamphetamine and various drug paraphernalia.

Smith, through his attorney, obtained documents relating to this investigation
from which he was able to infer that the informant was cooperating with the
authorities. On September 1, 2010, Smith initiated a series of text messages with
Special Agent Moore which produced the following dialogue:

SMITH: [The informant] is a federal informant

SPECIAL AGENT MOORE: that’s what I heard I’m not thinking that
its real cool. I’m working on taking care of it!!

SMITH: U lure him somewhere he won’t be a problem any more

SPECIAL AGENT MOORE: I need to talk to u but not over the phone
r u going to be around after labor day?

SMITH: Taking vacation to FL plan on being back by then unless I don’t
want 2 leave

2
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

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 SPECIAL AGENT MOORE: k I will text u on Monday let me no if u go
to Florida

SMITH: K

Eight days later, on September 9, 2010, Special Agent Moore initiated a text
message conversation with Smith. This conversation read:

SPECIAL AGENT MOORE: What’s up I have some news.

SMITH: whats that?

SPECIAL AGENT MOORE: talked to [the informant] sounds like he
might come up and see me next week. r u interested

SMITH: without a doubt

SPECIAL AGENT MOORE: k will call when I know more

SMITH: cool i get the rest taken care of. Thanks man.

Special Agent Moore contacted Smith again on October 25, 2010, this time in
a recorded telephone conversation. Special Agent Moore told Smith the informant
would be coming to town soon and asked, “you still interested in that?” The
conversation proceeded as follows:

SMITH: yeah.

SPECIAL AGENT MOORE: What, uh, what—are you just gonna beat
the f_ _ _ out of him, or what are you gonna do?

....

SMITH: I’m not sure yet.

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 SPECIAL AGENT MOORE: All right. Well, if I think I know what
you’re going to do to him, you gotta make sure this s_ _ _ gonna be
right. Because if he truly is a snitch, you can’t f_ _ _ this thing up
because then everybody’s going to be in trouble. . . .

what’d you have in mind? I got something in mind; what were you
thinking?

SMITH: I don’t want him breathing.

....

SPECIAL AGENT MOORE: I say we take care of it.

SMITH: Yeah, definitely.

SPECIAL AGENT MOORE: All right. Can you . . . I mean, you got a
piece?

SMITH: Yeah.

SPECIAL AGENT MOORE: Alright, well I got one too. That’s what
I’m saying; I mean, we both need one. You know, if we’re gonna
f_ _ _ _ _ _ do this right we’ll just take him out somewhere and
f_ _ _ _ _ _ take care of business.

SMITH: Yup.

SPECIAL AGENT MOORE: I mean, is that what you’re thinking?

SMITH: Yup.

Finally, Special Agent Moore inquired whether Smith could “get [a weapon] hooked
up before Wednesday” and Smith replied “Oh yeah.” The conversation ended when
the two men agreed to “get that hooked up” and “go from there.”

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 Special Agent Moore attempted to call Smith again but received no answer, and
there were no further communications between Smith and Special Agent Moore.
Smith was arrested on November 1, 2010.

B. Procedural History
Smith was indicted in the United States District Court for the Northern District
of Iowa for (1) conspiracy to distribute fifty or more grams of a substance containing
methamphetamine and five or more grams of actual (pure) methamphetamine, and
(2) distribution of five or more grams of actual (pure) methamphetamine in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. Smith pled guilty to distributing five
or more grams of actual (pure) methamphetamine, and the prosecution dismissed the
conspiracy charge.

The PSR calculated an advisory Guidelines sentence range of 135 to 168
months. This recommendation included an enhancement for obstruction of justice
under U.S.S.G. § 3C1.1 and denied the reduction for acceptance of responsibility
under U.S.S.G. § 3E1.1, Application Note 4. The district court held a sentencing
hearing at which it heard testimony from Special Agent Moore and received evidence
relating to his communications with Smith. Over Smith’s objection, the district court
adopted the advisory Guidelines range and sentenced Smith to the minimum
recommended sentence of 135 months imprisonment and four years supervised
release.

II. DISCUSSION
A. Standard of Review
Smith argues the district court erred by enhancing his sentence for obstruction
of justice and not reducing his sentence for acceptance of responsibility. “We review
the district court’s factual findings for clear error and . . . its application of the
guidelines to those facts” de novo. See United States v. Walstrom, 588 F.3d 538, 542
(8th Cir. 2009).

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 B. Obstruction of Justice
We first consider Smith’s claim that the district court erred by applying
Guidelines § 3C1.1 for “Obstructing or Impeding the Administration of Justice.”
Section 3C1.1 provides

If (1) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to (A) the defendant’s
offense of conviction and any relevant conduct; or (B) a closely related
offense, increase the offense level by 2 levels.

A district court may apply the enhancement for obstruction of justice only if it finds
by a preponderance of the evidence the defendant engaged in the relevant conduct.
See United States v. Wisecarver, 644 F.3d 764, 773 (8th Cir. 2011).

Because there was no evidence the informant was actually threatened or was
even aware of the communications between Smith and Special Agent Moore, there is
no basis to find Smith actually obstructed or impeded the investigation by
“threatening, intimidating, or otherwise unlawfully influencing” a government
witness. U.S.S.G. § 3C1.1, Application Note 4(A). Therefore, the relevant inquiry
is whether Smith attempted to do so. See id.

“An attempt requires (1) an intent to engage in criminal conduct, and
(2) conduct constituting a substantial step toward the commission of the substantive
offense which strongly corroborates the actor’s criminal intent.” Wahlstrom, 588 F.3d
at 543 (internal marks omitted). Smith claims neither element of this test was met, but
we disagree.

First, Smith argues the evidence was insufficient to show he intended to
obstruct justice, but this argument is unavailing. Among other incriminating

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statements, Smith told Moore, “U lure him some where he won’t be a problem any
more,” and “I don’t want him breathing.” When Special Agent Moore suggested
“we’ll just take him somewhere and f_ _ _ _ _ _ take care of business” and asked
Smith “is that what you’re thinking?” Smith replied “Yup.”

Smith maintains “the record evidences that [he] never had anything specific in
mind, and further that [his] comments about harming the [informant] were mere
exaggerated talk in response to suggestions and questions by the undercover agent.”
Whether Smith’s comments reflect a genuine intent to obstruct justice or were mere
braggadocio is a question of fact akin to a credibility determination that the district
court was in a far better position to address than are we. See, e.g., Wahlstrom, 588
F.3d at 542. Smith’s statements and text messages to Special Agent Moore reasonably
support the inference that Smith intended to interfere with or harm the informant. The
district court did not clearly err in finding Smith intended to obstruct justice. See
United States v. Valdez, 146 F.3d 547, 555 (8th Cir. 1998) (upholding the district
court’s application of the obstruction enhancement because “the government[]
need[ed] only to prove by a preponderance of the evidence” that the defendants had
the requisite intent and “the District Court did not clearly err in its finding that the
defendants attempted” to harm a material witness).

Smith also contends the district court erred in finding that he took a “substantial
step” toward obstructing justice. We reject this argument as well. A substantial step
is one that is “necessary to the consummation of the crime and . . . of such a nature
that a reasonable observer, viewing it in context could conclude that it was undertaken
in accordance with a design to commit the substantive offense.” Wahlstrom, 588 F.3d
at 543 (internal quotation marks omitted). The district court found the substantial step
“occurred on September 1st when [Smith] asked the agent working in an undercover
capacity to lure the confidential informant.”

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 In Wahlstrom, the defendant, who was in custody awaiting the final disposition
of certain drug trafficking charges, attempted to solicit a hitman to murder the
prosecutor’s wife. See id. at 541. Unbeknownst to Wahlstrom, the “hitman” was
actually an undercover agent. See id. Wahlstrom had, through an associate, asked the
agent to carry out the hit, and Wahlstrom and the agent discussed, without agreeing
on, the terms of payment. See id. at 541-42. We held this conduct constituted a
substantial step amounting to attempted obstruction of justice. Id. at 543.

We see no significant distinctions between Wahlstrom’s conduct and Smith’s
conduct for the purposes of the substantial step requirement. Smith attempts to
distinguish Wahlstrom because Smith did not offer to pay Special Agent Moore to kill
the informant. An offer of payment was not necessary for a reasonable observer to
conclude Smith contacted Special Agent Moore in furtherance of a plan to obstruct
justice. Smith believed Special Agent Moore, posing as a fellow methamphetamine
dealer whose criminal activities were also in jeopardy, had his own reasons to prevent
the informant from continuing to cooperate with the authorities. As such, Smith
readily could have believed contacting Special Agent Moore would substantially
further Smith’s goal even though he made no offer of payment. Given the pre-existing
relationship between Smith, Special Agent Moore, and the informant, it was
reasonable for the district court to conclude this conduct constituted a substantial step.

We also reject Smith’s contention the September 1 text messages did not
constitute a substantial step because they were “merely a reply to an idea which
originated with the undercover agent.” This argument assumes Smith, when he
initially contacted Special Agent Moore to expose the informant, did not anticipate
Special Agent Moore’s response. A reasonable observer could determine Smith was
contemplating violence when he sent the initial text message. Furthermore, Special
Agent Moore’s reply—“I’m working on taking care of it!!”— is also ambiguous.
Smith’s response—“U lure him some where he won’t be a problem any more”—could
be viewed as the pivotal communication that introduced the idea of doing violence to

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the informant. The record simply does not support Smith’s argument that the plan to
target the informant for violence or harassment originated entirely with Special Agent
Moore.

In addition, it was not necessary for the district court to find by a preponderance
of the evidence that Smith intended to kill or do serious violence to the informant.
Rather, the sentencing enhancement is applicable if Smith “attempted to obstruct or
impede[] the administration of justice” with respect to his pending drug charges, see
U.S.S.G. § 3C1.1, which Smith could accomplish by “threatening, intimidating, or
otherwise unlawfully influencing” the informant. Id., Application Note 4(A). Even
if the district court accepted Smith’s assertion that he was not fully committed to
having the informant killed, the court could still have concluded these
communications constituted a substantial step toward completing a plan to interfere
with or unlawfully influence the informant. See, e.g., United States v. Adipietro, 983
F.2d 1468, 1479-80 (8th Cir. 1993) (affirming the obstruction of justice enhancement
in part because “it was obvious” to the district court, based on the defendant’s
recorded jailhouse communications, that “something was afoot”).

C. Acceptance of Responsibility
Smith also asserts the district court erred by failing to apply the two-level
sentencing reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1. We
review the district court’s denial of an acceptance of responsibility reduction for clear
error. United States v. Bell, 411 F.3d 960, 963 (8th Cir. 2005). “Under [U.S.S.G.]
§ 3E1.1(a), the burden is on a defendant to show that he ‘clearly demonstrated’
acceptance of responsibility. A district court’s factual determination about whether
the defendant accepted responsibility is entitled to great deference, and we will reverse
it only if it is so clearly erroneous as to be without foundation.” United States v.
Wallenfang, 568 F.3d 649, 661 (8th Cir. 2009) (internal quotations omitted).
Ordinarily, a defendant who obstructs justice is not entitled to the reduction for
acceptance of responsibility. See U.S.S.G. § 3E1.1, Application Note 4. In

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“extraordinary cases,” a defendant who obstructs justice may be eligible for the
acceptance of responsibility reduction. Id.; see also United States v. Honken, 184
F.3d 961, 967-68 (8th Cir. 1999). We must therefore decide whether this is such a
case.

In Honken, we explained “there is no magic formula for defining an
‘extraordinary case.’” Honken, 184 F.3d at 969. We held the district court should
decide whether the defendant accepted responsibility, in spite of his obstructive
conduct, based on the totality of the circumstances. See id. at 968. We emphasized
that these “extraordinary case[s]” are “extremely rare and highly exceptional.” Id. at
970.

In Honken, we identified a number of non-exclusive factors for the district
courts to consider in deciding whether a case is “extraordinary.” These include
whether

the obstruction of justice was an isolated incident early in the
investigation or an on-going effort to obstruct the prosecution[,] . . .
whether [the defendant] voluntarily terminated his obstructive conduct,
or whether the conduct was stopped by law enforcement[,] . . . [and]
whether [the defendant] admitted and recanted his obstructive conduct,
or whether he denied obstruction of justice at sentencing.

Id. at 968.

In the present case, the district court might reasonably have decided this was not
an isolated incident because Smith participated in a series of telephone and text-
message communications with Special Agent Moore between September 1, 2010, and
October 25, 2010. Furthermore, Smith consistently has denied he intended to obstruct
justice or took a substantial step toward accomplishing that objective. And finally,
Smith did not voluntarily abandon his plans or try to dissuade Special Agent Moore

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from harming the informant. The district court did not clearly err in denying the
sentencing reduction based on acceptance of responsibility.

In Honken, we cautioned that the “extraordinary case” should not be construed
so broadly as to swallow the “ordinary” case where the defendant who has not
attempted to obstruct justice is granted a reduction for his acceptance of responsibility.
Honken, 184 F.3d at 970. Nothing in this record suggests Smith did “anything that
is more than ordinary, or [went] beyond what is usual, regular, common, or customary
to earn an acceptance of responsibility downward departure.” Id. (internal quotations
omitted). Because Smith attempted to obstruct justice, yet did nothing “extraordinary”
to demonstrate he accepted responsibility, the district court’s denial of the sentencing
reduction was entirely proper.

III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.3
______________________________

3
Because the district court properly calculated the advisory Guidelines range,
we need not address whether the alternative sentence adopted by the district court
would have supported a finding of harmless error. Compare United States v.
Johnston, 533 F.3d 972, 978 (8th Cir. 2008) (determining the alleged sentencing errors
were harmless because the district court properly calculated an alternative Guidelines
sentence range and described with particularity why the alternative sentence was
appropriate under the 18 U.S.C. § 3553(a) sentencing factors), with United States v.
Icaza, 492 F.3d 967, 971 (8th Cir. 2007) (“[T]o support a finding of harmless error,
the record clearly must show not only that the district court intended to provide an
alternative sentence, but also that the alternative sentence is based on an identifiable,
correctly calculated guidelines range.”).

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