United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2009 Decided November 10, 2009
No. 07-3130
UNITED STATES OF AMERICA,
APPELLEE
v.
DELONTA A. REEVES,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06cr00114-01)
Joseph R. Conte, appointed by the court, argued the
cause and filed the brief for appellant.
April E. Fearnley, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney at the time the brief was filed, and Roy
W. McLeese, III, Assistant U.S. Attorney.
Before: ROGERS, TATEL and BROWN, Circuit Judges.
Opinion for the court filed by Circuit Judge BROWN.
2
Opinion concurring in part filed by Circuit Judge
ROGERS.
BROWN, Circuit Judge: Delonta Reeves challenges the
district court’s decision to impose a two-level enhancement
for obstruction of justice under U.S. Sentencing Guidelines
(U.S.S.G. or Guidelines) § 3C1.1 and its refusal to grant a
third level of reduction for acceptance of responsibility under
§ 3E1.1(b). Reeves also argues he was deprived of the
effective assistance of counsel. We affirm.
I
These are the relevant facts. In March 2006, Reeves was
charged with unlawfully possessing cocaine base and
intending to distribute it. After he was released on his own
recognizance, the government dismissed the charges on April
27, but they were reinstated, along with other charges, by a
grand jury indictment on May 2. The district court set a June
5 arraignment date for the new charges. The Clerk’s Office
issued a “Criminal Notice”—which was sent to Reeves and
his counsel—specifying the time, date, and location of the
arraignment and directing counsel to make sure Reeves would
be present. On June 5, Reeves did not appear. Counsel said
he had spoken with Reeves and informed him of the
arraignment, but did not know where he was. The court
issued a bench warrant.
Nothing was heard from Reeves until he was arrested for
another narcotics offense eleven months later. The bench
warrant was executed and Reeves was returned to the district
court on May 21, 2007, and arraigned on the charges from the
May 2, 2006 indictment.
3
On August 24, 2007, Reeves pled guilty to count two of
the indictment, unlawful possession with intent to distribute
five grams or more of cocaine base. The plea agreement
obligated the government not to seek any increase in Reeves’
offense level based on conduct that occurred prior to the
execution of the agreement; and to recommend reduction of
Reeves’ offense level by two levels, under U.S.S.G. §
3E1.1(a), and by an additional third level, under § 3E1.1(b),
for acceptance of responsibility. The agreement made clear
“the Court is not bound by . . . the parties’ determination of
the applicable Guidelines range, or other sentencing issues.”
At sentencing, the district court accepted, without
objection, the facts set forth in the presentence report (PSR)
as its findings of fact, see Fed. R. Crim. P. 32(i)(3)(A),
including the recitation of Reeves’ failure to appear at his
arraignment and being “a fugitive for approximately 11
months.”1 Based on this conduct, the district court increased
Reeves’ offense level by two levels for obstruction of justice
under U.S.S.G. § 3C1.1. Nonetheless, because Reeves had
promptly pled guilty after being re-arrested, the court reduced
Reeves’ offense level by two levels for acceptance of
responsibility under § 3E1.1(a). Finally, the government
moved for an additional third level of reduction for
acceptance of responsibility under § 3E1.1(b). The court
denied this request, ruling that Reeves’ acceptance of
responsibility was insufficiently timely “in light of his almost
one-year fugitive status after he failed to appear for a
proceeding before this court.” The court calculated the
resulting Guidelines range to be seventy-eight to ninety-seven
1
The PSR was filed under seal. Insofar as we refer to information
derived from the PSR, it is unsealed to the limited extent referenced
in this opinion, although the full document shall remain physically
withheld from public review. See United States v. Parnell, 524
F.3d 166, 167 n.1 (2d Cir. 2008) (per curiam).
4
months, and imposed a sentence of seventy-eight months’
imprisonment and forty-eight months’ supervised release.
II
Reeves challenges the district court’s Guidelines
calculation. He points out that while he was out on his own
recognizance, the criminal complaint against him was
dismissed. Although he subsequently was indicted by a grand
jury and was set to be arraigned on those new charges, he
argues he never was under a court order to appear at this
arraignment and therefore could not have obstructed justice
within the meaning of U.S.S.G. § 3C1.1. For the same
reason, he argues he deserved the third level of reduction for
acceptance of responsibility under § 3E1.1(b). Lastly, Reeves
argues his counsel was ineffective because he failed to inform
the court that the initial criminal complaint had been
dismissed and that Reeves had not been under a court order to
appear at his arraignment.
We review only for plain error because in the district
court, Reeves challenged the court’s Guidelines calculation
solely on the basis of his plea agreement, arguing the
enhancement for obstruction of justice was barred because the
obstructive conduct occurred prior to the plea, not on the
ground that the court had never ordered him to appear at his
arraignment. See In re Sealed Case, 527 F.3d 188, 191–92
(D.C. Cir. 2008).
To establish plain error, the defendant must show, among
other things, “a reasonable likelihood that the sentencing
court’s obvious errors affected his sentence.” United States v.
Saro, 24 F.3d 283, 288 (D.C. Cir. 1994). “The standard of
‘reasonable likelihood’ is somewhat more relaxed in the area
of sentencing than it is for trial errors, since ‘a resentencing is
5
nowhere near as costly or as chancy an event as a trial.’”
United States v. Gomez, 431 F.3d 818, 823 (D.C. Cir. 2005)
(quoting Saro, 24 F.3d at 288).
A
Reeves first argues the district court erroneously imposed
a two-level enhancement for obstruction of justice. U.S.S.G.
§ 3C1.1 provides:
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; or (ii) a closely
related offense, increase the offense level by 2 levels.
“Obstructive conduct can vary widely in nature, degree
of planning, and seriousness” and “the conduct to which this
enhancement applies is not subject to precise definition.”
U.S.S.G. § 3C1.1 cmt. n.3; see also Stinson v. United States,
508 U.S. 36, 38 (1993) (“commentary in the Guidelines
Manual that interprets or explains a guideline is authoritative
unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline”).
An enhancement under § 3C1.1 “is only appropriate
where the defendant acts with the intent to obstruct justice.”
United States v. Henry, 557 F.3d 642, 646 (D.C. Cir. 2009).
Where conduct is “directly and inherently obstructive”—that
is, where the defendant engages in “behavior that a rational
person would expect to obstruct justice”—the court may infer
6
an intent to obstruct justice and need not make a separate
finding of specific intent. Id. Reeves, having proffered no
“evidence that he acted without any subjective motivation to
obstruct justice,” id., places undue reliance on Application
Note 4 in the Commentary, which provides a “non-exhaustive
list of examples” of obstructive conduct, including “willfully
failing to appear, as ordered, for a judicial proceeding.”
U.S.S.G. § 3C1.1 cmt. n.4(e) (emphasis added). He argues he
could not have willfully obstructed justice because he was not
under a court order to appear at his arraignment. We need not
decide whether Reeves was, in fact, formally ordered to
appear at his arraignment because although the violation of a
court order would be sufficient, it is not necessary to find
willful obstruction.
The district court was permitted to infer Reeves intended
to obstruct justice if his conduct was “directly and inherently
obstructive.” Henry, 557 F.3d at 646. It was. Because no
party objected, the court properly accepted the facts set forth
in the PSR as its findings of fact pursuant to Fed. R. Crim. P.
32(i)(3)(A). The PSR stated, “Court records reflect that
Reeves failed to appear for an arraignment hearing on June 5,
2006, resulting in the issuance of a Bench Warrant. On May
19, 2007, he was detained on a new offense . . . . Thus,
Reeves was a fugitive for approximately 11 months.” The
court’s docket sheet also reflected that Reeves failed to
appear at his arraignment, see Minute Entry (Jun. 5, 2006),
and that he was re-arrested and returned on the bench warrant
eleven months later, see Minute Entry (May 21, 2007).
Failing to appear at an arraignment, and remaining at large for
nearly a year, is inherently obstructive because a rational
person would expect such conduct to obstruct justice. See
Henry, 557 F.3d at 646. Indeed, Reeves’ conduct impeded
the administration of justice by making it impossible for the
government to prosecute him until the authorities expended
7
the time and resources necessary to re-arrest him. Thus, the
court did not err—much less plainly err—by inferring Reeves
acted willfully.
Finally, even if the district court had not been entitled to
infer Reeves’ obstructive intent from his conduct alone, the
evidence nonetheless established he acted willfully. A
defendant willfully fails to appear at a judicial proceeding
when he has “knowledge of the requirements placed upon
him by the court” and “conscious[ly] deci[des] to ignore its
mandate.” United States v. Monroe, 990 F.2d 1370, 1376
(D.C. Cir. 1993). On the date of the scheduled arraignment,
Reeves’ counsel stated he had spoken with Reeves and had
informed him of the time and date of the arraignment. And
the “Criminal Notice” issued by the Clerk’s Office,
announcing the time and date of the arraignment, indicates it
was sent to Reeves. Reeves submitted no evidence, and made
no argument, controverting this proof of his knowledge.
Thus, regardless of whether Reeves was under a court order
to appear at his arraignment, he acted willfully by failing to
appear and remaining at large until being re-arrested eleven
months later.2
2
The concurrence misreads Monroe, claiming “Monroe requires
more” than a defendant’s conscious decision not to appear at a
judicial proceeding he knows he must attend in order to establish
willful obstruction. Conc. op. at 2. Not so. In Monroe, we referred
favorably to United States v. Teta, 918 F.2d 1329 (7th Cir. 1990),
and United States v. Perry, 908 F.2d 56 (6th Cir. 1990). We noted
that Teta’s “failure to appear [at his arraignment] was willful,
‘because he knew the requirements and yet voluntarily and
intentionally failed to appear.’” Monroe, 990 F.2d at 1376 (quoting
Teta, 918 F.2d at 1334). We noted that Perry’s decision to
“disobey[] an explicit instruction” from the court to keep an
appointment “was ‘enough’ to find an obstruction of justice.” Id.
(quoting Perry, 908 F.2d at 59). But because Monroe had not
received notice of her arraignment until the day after the hearing
8
B
Reeves next argues the district court erroneously declined
to grant a third level of reduction for acceptance of
responsibility. U.S.S.G. § 3E1.1 provides:
(a) If the defendant clearly demonstrates acceptance
of responsibility for his offense, decrease the offense
level by 2 levels.
(b) If the defendant qualifies for a decrease under
subsection (a), the offense level determined prior to
the operation of subsection (a) is level 16 or greater,
and upon motion of the government stating that the
defendant has assisted authorities in the investigation
or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a plea of
guilty, thereby permitting the government to avoid
preparing for trial and permitting the government and
the court to allocate their resources efficiently,
decrease the offense level by 1 additional level.
Although the timeliness of a defendant’s acceptance of
responsibility “is a consideration under both subsections,”
generally, “the conduct qualifying for a decrease in offense
level under subsection (b) will occur particularly early in the
case.” U.S.S.G. § 3E1.1(b) cmt. n.6. This is because a
reduction under subsection (b) is only warranted where the
defendant has “notified authorities of his intention to enter a
took place, we held her “failure to appear cannot . . . be labelled
‘willful,’ as she could not have ignored a mandate that she had not
received.” Id. Here, because Reeves did receive and ignore the
court’s mandate, his failure to appear was intentional and may
properly be labeled “willful.”
9
plea of guilty at a sufficiently early point in the process so
that the government may avoid preparing for trial and the
court may schedule its calendar efficiently.” Id. Ultimately,
because “[t]he sentencing judge is in a unique position to
evaluate a defendant’s acceptance of responsibility,” the
district court’s determination “is entitled to great deference on
review.” Id. n.5.
The district court reasoned that a two-level reduction
under subsection (a) was warranted because “[o]nce he ended
his fugitive status . . . [Reeves] very promptly and clearly
demonstrated an acceptance of responsibility.”3 But the court
held it would be inappropriate to grant an additional one-level
reduction under subsection (b) because “in light of his almost
one-year fugitive status after he failed to appear for a
proceeding before this court,” his acceptance of responsibility
was insufficiently timely. The court explained that Reeves’
obstructive conduct caused “an expenditure of funds and
effort” by the government “to apprehend the defendant and to
start the process again.” Reeves challenges this conclusion on
the same ground he challenges the enhancement for
obstruction of justice. He argues the district court should
have ignored the eleven-month period in which he was a
fugitive because, during that time, he was not under a court
order to appear. As discussed above, the district court
3
The Commentary instructs, “[c]onduct resulting in an
enhancement under § 3C1.1 . . . ordinarily indicates that the
defendant has not accepted responsibility for his criminal conduct.
There may, however, be extraordinary cases in which adjustments
under both §§ 3C1.1 and 3E1.1 may apply.” U.S.S.G. § 3E1.1 cmt.
n.4 (emphasis added). Neither party has challenged the district
court’s conclusion that this was an “extraordinary” case in which an
enhancement under § 3C1.1 could coexist with a reduction under §
3E1.1. Thus, we express no view on the soundness of the court’s
conclusion.
10
properly held Reeves willfully obstructed justice; thus, the
court did not plainly err in concluding that Reeves’
acceptance of responsibility, which did not occur until after
he was re-arrested for another crime, was insufficiently timely
to warrant a reduction under subsection (b).
Finally, a word of caution about what we do not hold.
Prior to 2003, the decision whether to grant a third level of
reduction under § 3E1.1(b) was vested solely in the judiciary.
See U.S.S.G. § 3E1.1(b) (2003). The passage of the
PROTECT Act in 2003 amended the guideline by making the
application of subsection (b) depend on the government filing
a motion requesting the reduction. See Pub. L. No. 108-21, §
401(g)(1)(A). Here, both parties have assumed that even after
the government moved for the reduction, the district court
retained discretion to deny it. This issue appears to have
divided those circuits that have considered it. Compare
United States v. Deberry, 576 F.3d 708, 710 (7th Cir. 2009)
(“Subsection (b) confers an entitlement on the government: if
it wants to give the defendant additional credit for acceptance
of responsibility . . . it can file a motion and the defendant will
get the additional one-level reduction in his offense level.”)
(emphasis in original), with United States v. Stacey, 531 F.3d
565, 567 (8th Cir. 2008) (“When determining if a third level
of reduction is warranted [under subsection (b)], the court’s
inquiry should be ‘context specific,’ and should consider the
timeliness of the defendant’s acceptance of responsibility.”),
and United States v. Sloley, 464 F.3d 355, 360 (2d Cir. 2006)
(“[U]nder the new version [of § 3E1.1(b)] both the court and
the government must be satisfied that the acceptance of
responsibility is genuine.”). Because Reeves has not argued
the district court lacked discretion to deny the reduction even
after the government moved for it, we do not address the issue
or resolve it. See Doe v. District of Columbia, 93 F.3d 861,
11
875 n.14 (D.C. Cir. 1996) (per curiam) (argument not raised
on appeal is waived).
C
Finally, Reeves argues his counsel was constitutionally
ineffective because he failed to inform the district court that
the initial criminal complaint against Reeves had been
dismissed and that Reeves had not been under a court order to
appear at his arraignment. To prevail on a claim of
ineffective assistance of counsel, “[t]he defendant bears the
burden of proving that his lawyer made errors ‘so serious that
counsel was not functioning as the “counsel” guaranteed by
the Sixth Amendment’ and that counsel’s deficient
performance was prejudicial.” United States v. Geraldo, 271
F.3d 1112, 1116 (D.C. Cir. 2001) (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)). “In this circuit,
when an appellant makes an ineffective assistance of counsel
claim for the first time on appeal, we generally remand for a
fact-finding hearing, at which the district court can explore
whether alleged episodes of substandard representation reflect
the trial counsel’s informed tactical choice or a decision
undertaken out of ignorance of the relevant law.” United
States v. Mouling, 557 F.3d 658, 668–69 (D.C. Cir. 2009)
(internal quotation marks omitted). There are “two
exceptions to this general practice: when the trial record alone
conclusively shows that the defendant is entitled to no relief,
and the rare exception when the trial record conclusively
shows the contrary.” Id. at 669 (internal quotation marks
omitted).
The record conclusively shows defense counsel did not
perform deficiently because any argument that Reeves did not
act willfully merely because he had not been ordered by the
court to appear at his arraignment would have been meritless.
12
The district court based its enhancement under U.S.S.G. §
3C1.1, not on a finding or assumption that Reeves had
violated a court order, but on Reeves’ “failure to appear and .
. . fugitive status for close to one year.” Because this conduct
was inherently obstructive, the court was permitted to infer
Reeves’ willfulness, and therefore it would have been futile to
argue Reeves lacked the subjective intent to obstruct justice
based on the lack of a court order. In any event, such an
argument would have been easily rejected. Willfulness under
§ 3C1.1 is established simply by showing the defendant had
knowledge of his obligation to attend the judicial proceeding
he missed. See Monroe, 990 F.2d at 1376. Here, not only did
the evidence establish Reeves knew of his arraignment on
June 5, 2006, but he has not even argued to the contrary.
Thus, counsel did not perform deficiently in failing to make a
meritless argument; and, likewise, the absence of such
argument caused Reeves no prejudice. A remand is
unnecessary.
III
For the foregoing reasons, the district court’s judgment
and sentence are
Affirmed.
ROGERS, Circuit Judge, concurring in part: In United States
v. Henry, 557 F.3d 642, 646 (D.C. Cir. 2009), the court held
with regard to the enhancement of a sentence for obstruction of
justice pursuant to U.S.S.G. § 3C1.1, that:
[A]lthough a court ordinarily may rely on the willing
commission of conduct that, objectively viewed, tends to
obstruct justice, such an objective standard serves only as
a proxy of the actual subjective intent required by the
Guideline. Where conduct is directly and inherently
obstructive, the court may infer an intent to obstruct justice.
But where the evidence shows such a proxy is not reliable
and the defendant did not have the required intent, an
enhancement is not warranted.
The court thus adhered to the longstanding holding of
United States v. Monroe, 990 F.2d 1370 (D.C. Cir. 1993), that
the word “willful” in U.S.S.G. § 3C1.1 “‘requires that the
defendant consciously act with the purpose of obstructing
justice.’” Id. at 1376 (quoting United States v. Thompson, 962
F.2d 1069, 1071 (D.C. Cir. 1992)). In Henry, this court held that
there was no need for a separate finding of intent to obstruct
justice when a defendant engaged in conduct that is inherently
obstructive — “that is, behavior that a rational person would
expect to obstruct justice,” 557 F.3d at 646 — at least where “no
evidence is proffered to show non-obstructive intent,” id. at 647.
Today the court holds that Reeves willfully obstructed
justice in either of two ways. First, his failure to appear for his
arraignment was conduct that is inherently obstructive; the
conduct demonstrates willful obstruction in the absence of any
showing by Reeves of non-obstructive intent. Op. at 5–7. In the
alternative, Reeves possessed knowledge of the arraignment and
failed to attend, thus meeting the Monroe standard that a
defendant be aware of a court requirement and consciously act
to ignore it. Op. at 7. But, as this court recognized in Henry,
2
557 F.3d at 646, Monroe requires more. Reeves must not
simply ignore the court’s mandate, he must act “with the
purpose of obstructing justice,” Monroe, 990 F.2d at 1376
(internal quotation omitted).
There is no evidence of Reeves’ obstructive intent other
than the inference to be drawn from his inherently obstructive
conduct. Yet, for its alternative holding, the court expressly
disclaims reliance on the inherently obstructive conduct. See
Op. 7. That alternative holding appears to find willful
obstruction from knowledge alone, yet in Henry this court
reiterated what Monroe made clear: “although this [court’s
precedent] has sometimes been interpreted as a signal that the
specific intent to obstruct justice is not necessary under § 3C1.1
. . . such an interpretation is in tension with the Guidelines” and
the requirement that “‘the defendant consciously act with the
purpose of obstructing justice.’” Henry, 557 F.3d at 647
(quoting Monroe, 990 F.2d at 1376). While that willfulness may
be inferred from inherently obstructive conduct in the absence
of non-obstructive intent, see id., knowledge alone cannot
provide the basis for a determination of the intention to
“willfully obstruct” justice. Otherwise, without the inference of
inherently obstructive conduct, every failure to appear for a
known court appointment would nonetheless constitute an
obstruction of justice under § 3C1.1, contrary to the
requirements of that Guideline. See Henry, 557 F.3d at 647.
Accordingly, I do not join the court’s alternative holding, which,
in any event, is dictum unnecessary to resolve this appeal.