United States v. Alexander

Case: 09-50200 Document: 00511067824 Page: 1 Date Filed: 03/31/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 31, 2010

No. 09-50200 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee
v.

CHRISTOPHER L ALEXANDER,

Defendant–Appellant

Appeal from the United States District Court
for the Western District of Texas

Before JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges.
PRADO, Circuit Judge:
Christopher L. Alexander appeals the district court’s application of a two-
point increase for obstruction of justice under § 3C1.1 of the U.S. S ENTENCING
G UIDELINES (“U.S.S.G.”). Alexander argues that the obstruction of justice
enhancement was not warranted because the obstructive conduct did not relate
to the drug offense for which he was convicted. Alexander also argues that he
could not have intended to disrupt the federal investigation because he was in
custody for state charges at the time of the obstructive conduct and the federal
investigation had not yet begun. We find Alexander’s arguments unpersuasive.
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No. 09-50200

Thus, we affirm his sentence.1
I. FACTUAL AND PROCEDURAL BACKGROUND
Austin Police Department (“APD”) officers arrested Alexander after
finding cocaine base in his car during a traffic stop. While in jail, Alexander
called his father and directed him to remove three firearms from his bedroom
and deliver at least one of them to Trinity Duke Smith, a known drug dealer.2
Several years prior, Alexander was a passenger in Smith’s car when the police
found 0.28 grams of cocaine base and $3,000 in cash on Smith. State authorities
did not press charges based on that incident, however.
Unbeknownst to Alexander, the jail recorded his conversation with his
father, and APD detectives reviewed the tapes several weeks later. The
detectives obtained consent from Alexander’s father to search and found two of
the firearms in Alexander’s bedroom and recovered the other firearm from
Alexander’s girlfriend. The APD brought this case to the attention of the United
States Attorney’s Office around the time that Alexander made the phone call to
his father. Federal investigation resulted in an indictment several weeks later.
Alexander pled guilty to possession with intent to distribute more than

1
Alexander also argues that the district court should have granted a downward
adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. Alexander concedes,
however, that if the district court properly applied the obstruction of justice adjustment, then
it correctly denied the acceptance of responsibility adjustment. We express no opinion on
whether Alexander presents extraordinary circumstances that would justify finding
acceptance of responsibility despite his obstruction of justice. United States v. Rodriguez, 942
F.2d 899, 902–03 (5th Cir. 1991) (holding that “this is not one of those extraordinary cases in
which adjustments under both §§ 3C1.1 and 3E1.1 may apply”). Because Alexander’s sole
argument depends upon our reversal of the obstruction of justice adjustment, we affirm as to
acceptance of responsibility as well.
2
Smith is currently serving a sixty month sentence for possession of more than three
grams of cocaine base.

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No. 09-50200

fifty grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). The probation
office recommended in the Presentence Investigation Report (“PSR”) increasing
Alexander’s base offense level by two levels under § 3C1.1 for obstruction of
justice based on the call he made to his father directing him to move the
firearms, and recommended denying an adjustment for acceptance of
responsibility under § 3E1.1. Alexander objected to the PSR, claiming that the
obstructive conduct did not relate to his crime of conviction. Alexander also
objected to the denial of a decrease for acceptance of responsibility, arguing that
it should apply if the obstruction of justice adjustment did not. The district court
adopted the recommendations in the PSR and found an adjusted offense level of
thirty-two, which, combined with a criminal history category of V, produced a
guideline sentencing range of 188 to 235 months. The district court sentenced
Alexander to 188 months’ imprisonment. Alexander timely appealed his
sentence.
II. DISCUSSION
A. Standard of Review
We review a district court’s interpretation or application of the Sentencing
Guidelines de novo, but review its factual findings for clear error. United States
v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008). “There is no clear error if the
district court’s finding is plausible in light of the record as a whole.” Id. (citing
United States v. Harms, 442 F.3d 367, 378 (5th Cir. 2006)). “‘The [PSR] is
considered reliable evidence for resentencing purposes.’” United States v.
Reasor, 541 F.3d 366, 369 (5th Cir. 2008) (quoting United States v. Clark, 139
F.3d 485, 490 (5th Cir. 1998)). The district court is free to adopt the factual
findings within the PSR without further inquiry if the defendant does nothing

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No. 09-50200

to rebut the information contained in the PSR. Id..
B. U.S.S.G. § 3C1.1
U.S.S.G. § 3C1.1 provides that:
If (A) 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 (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct; of (ii) a
closely related offense, increase the offense level by 2 levels.”

Obstructive conduct occurring before the commencement of the federal
investigation may be covered “if the conduct was purposefully calculated, and
likely, to thwart the investigation or prosecution of the offense of conviction.”3
U.S.S.G. § 3C1.1 cmt. n.1.
Alexander concedes that he asked his father to move the firearms because
he thought that authorities would search his residence. However, Alexander
argues that his conduct only related to the state proceeding. Alexander argues
that at the time he made the phone call he was not aware of the federal
investigation, and thus he could not have willfully attempted to obstruct the
federal investigation of the offense of conviction. Alexander also argues that the
plain language of U.S.S.G. § 3C1.1 prevents its application because it only

3
The obstruction of justice guideline was amended in 2006, replacing “during the
course of” with “with respect to.” U.S.S.G. § 3C1.1, supp. to app. C, amend. 693 (2006).
Alexander cites United States v. Brown, 470 F.3d 1091, 1094–96 (5th Cir. 2006) for the
proposition that actions occurring before the commencement of the federal investigation
cannot serve as the basis for U.S.S.G. §.3C1.1 enhancement. However, we decided Brown
under the pre-Amendment version of the guideline’s requirement that the obstruction conduct
occur “during the course of an investigation, prosecution, or sentencing of the federal . . .
charge.” Id. at 1096. Brown does not apply here because we must ask whether Alexander
attempted to obstruct justice “with respect to the investigation, prosecution, or sentencing of
the instance offense of conviction.” U.S.S.G. § 3C1.1.

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applies to obstructive conduct relating to the instant offense of conviction, here,
possession of cocaine base.
We find U.S.S.G. § 3C1.1(A) satisfied. Although the federal investigation
may not have been underway when he made the phone call, we have previously
held in an unpublished opinion that obstruction of a state investigation based
on the same facts as the eventual federal conviction qualifies for enhancement
even if the obstructive conduct occurred before federal authorities commenced
their investigation. See United States v. Upchurch, 88 F. App’x 794, 796 (5th
Cir. 2004) (per curiam) (unpublished) (applying U.S.S.G. § 3C1.1 where a
defendant attempted to persuade her victim to recant and the federal
investigation had not yet begun because she was attempted to obstruct any
investigation into the conduct at issue).
We adopt Upchurch’s reasoning, and find that the enhancement applies
when the obstruction of the state investigation is based on the same facts as the
eventual federal conviction, regardless of whether the federal investigation has
commenced. This ruling is based on guideline’s failure to distinguish an
investigation by state officials from an investigation by federal officials, and
“recognize[s] that state officers are authorized to and frequently do investigate
criminal conduct that ultimately is prosecuted under federal law.” United States
v. Self, 132 F.3d 1039, 1042–43 (4th Cir. 1997). In so holding, we join nine of our
sister circuits.4 Here, the state investigation arose out of Alexander’s possession

4
The First, Second, Third, Fourth, Sixth, Eighth, Ninth, Tenth and Eleventh Circuits
have all held that obstruction of a state investigation based on the same facts as the eventual
federal conviction qualifies for enhancement under U.S.S.G. § 3C1.1. United States v.
Contreras, 506 F.3d 1031, 1039 (10th Cir. 2007); United States v. Ayers, 416 F.3d 131, 134 (2d
Cir. 2005); United States v. Frasier, 381 F.3d 1097, 1099–1100 (11th Cir. 2004); United States
v. Roberts, 243 F.3d 235, 237–38 (6th Cir. 2001); United States v. Imenec, 193 F.3d 206, 209

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No. 09-50200

of cocaine base, also served as the basis for Alexander’s federal conviction. We
therefore find that Alexander attempted to obstruct the investigation of the
instant offense.
Alexander also argues that the direction to hide the firearms was not
sufficiently related to his offense of conviction, possession of cocaine base. We
disagree. The PSR contains findings that Alexander asked his father to give at
least one of the firearms to Smith, a known drug dealer, and that Alexander was
a passenger in Smith’s vehicle when police found cocaine base. Alexander did
not rebut these findings; thus, the district court was free to adopt them. See
Reasor, 541 F.3d at 369. We need not determine how closely the obstructive
conduct must relate to the conduct ultimately charged because the link is clearly
present in this case: Alexander directed his father to give a firearm to Smith, a
known drug dealer, with whom Alexander had previously associated in a drug-
related incident. See United States v. Roberson, 872 F.2d 597, 609–10 (5th Cir.
1989) (declining to decide the required nexus between obstructive conduct and
the instant offense because the link was clearly present and “the district court
found that Roberson was trying to obstruct investigation of all of his conduct,
without regard for which offenses he was concealing”). We therefore find that
Alexander’s conduct related to the “offense of conviction and any relevant
conduct” under U.S.S.G. § 3C1.1.

(3d Cir. 1999); United States v. Luca, 183 F.3d 1018, 1022–23 (9th Cir. 1999); Self, 132 F.3d
at1042–43; United States v. Adediran, 26 F.3d 61, 65 (8th Cir. 1994); United States v. Emery,
991 F.2d 907, 911–12 (1st Cir. 1993). Only the Seventh Circuit has held that obstruction of
a state proceeding does not qualify. United States v. Perez, 50 F.3d 396, 398–400 (7th Cir.
1995). However, Perez relied at least in part “on the temporal requirement of Rule 3C1.1 that
the obstructive conduct occur ‘during’ the investigation, prosecution, or sentencing of the
instant offense,” id. at 399, which has since been amended. The Seventh Circuit has not cited
Perez since the 2006 amendment.

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III. CONCLUSION
We find that the district court properly applied the obstruction of justice
adjustment. We therefore affirm Alexander’s sentence.
AFFIRMED.

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