*1 Tankersley’s sen- enhanced court of district obstruction constitutes conduct or investigation not obstruct tence did “the offense whether justice to determine offense, rather of the instant prosecution with interference substantial result[s] in justice of and, so, the administration obstructed justice” the administration proceedings. the FTC civil respect to the sen- with direct Sentencing Guidelines at Therefore, government as conceded by sentence to enhance tencing court 2J1.2(b)(2). court’s basis for the district argument, oral § U.S.S.G. three levels. was erro- Tankersley’s sentence enhancing contends that further Tankersley this enhancement neous. We vacate himto be cannot apply this enhancement court to determine to the district remand in double engaged cause the district exist for enhanc- proper grounds whether same conduct considering the counting by pursuant to this Tankersley’s sentence ing as it considered to enhance his sentence Sentencing Guideline. contempt. Con criminal for punish him Tankersley’s argument, trary to III. Conclusion sentencing when counting occurs double reasons, Affirm in foregoing For the adjust upward more two or applies part in part, RemaND VACATE conduct. See the same ments based on opinion. consistent with proceedings 922, Parolin, 239 F.3d v. United States (7th Cir.2001); States v. United 928-29 Cir.1998).
Salyers, 160 F.3d case, convicted the district court
In this contempt because criminal
Tankersley of attempted yacht and he
he sold his this sale proceeds of
transfer the Then, the district sentencing
Bahamas. STATES, AND SOUTHEAST CENTRAL Tankersley’s sentence be court enhanced AREAS PENSION SOUTHWEST in resulted Tankersley’s conduct cause McDougall, FUND, Howard the adminis interference with substantial Trustee, Plaintiffs-Appellees, justice. tration of v. Obstructing the Administration C. LINES, INC., TRUCK HUNT Justice Defendant-Appellant. Tankersley contends Finally, No. 01-2558. enhancing his sen- district court’s basis obstructing the tence for administration of Appeals, United States Court § was errone- justice 3C1.1 under U.S.S.G. Circuit. Seventh court en- the district sentencing, ous. At because Tankersley’s sentence hanced 2002. Argued Jan. in- that he continued to violate found Decided storage
junction concealing assets certain infor- fading provide units and However, U.S.S.G. receiver.
mation to the the defen-
§ “unless 3C1.1 does or trial of investigation
dant obstructed 2J1.2, count.” U.S.S.G.
the obstruction which the n. 2. conduct upon
cmt. *2 Franczyk, (argued),
John J. Jr. Rose- mount, IL, for Plaintiff-Appellee. original notice sent the Palles, Chica- Stromsta, Ravitz & Jon K. but that Hunt on McDougall. IL, for Howard go, motion for in its conceded McBride, & Baker Spognardi, Mark A. not withdraw that Wintz Aitken, II, H. Jr. Hervey Coles, Chicago, *3 20[, July or about until “on plan the from Aitken, Al- & Thiemann Taylor, (argued), in- have Hunt could not Because 1996].” Lines, Inc. Truck exandria, VA, Hunt ac- until Wintz withdrawal curred it was clear plan, the tually withdrew from KANNE, MANION, and Before original had sent States that Judges. Central WILLIAMS, Circuit months and one-half at least one demand KANNE, Judge. Circuit Judge liability. any incurred Hunt before although that Lines, Nordberg then held Inc. with- 1994, Hunt Truck In pay- interim regarding provision MPPAA from Central drew broad, did not allow Fund was it Pension ments Areas and Southwest after Hunt States”). until payments (“Central Usually, to seek States Therefore, liability. liability on Hunt’s withdrawal incurred withdrawal give rise to summary judg- Nordberg granted Pension Multiemployer Judge part under 1980, Hunt, finding Act of U.S.C. that ment in favor Plan Amendments “MPPAA”). However, (the statutory comply with the failed to §§ 1381-1461 States another to MPPAA. its assets of the prerequisites sold because Hunt Inc., Drivers, Hunt Parcel Wintz company, liability provided withdrawal not face did Proceedings B. Arbitration to payments to make
that continued Wintz 1996, 20, initiated Hunt On December 1996, subsid- one of Wintz’s the fund. liability as- of the arbitration withdrawal with- triggering bankrupt, iaries went 1401, to 29 pursuant U.S.C. sessment Initially, part. liability on Wintz’s drawal to arbi- assigned was arbitration and the de- to Wintz a notice sent Central States June trator Ira F. Jaffe. On making installment begin manding that had also concluded Hunt arbitrator liability, but on the withdrawal payments in- an issued prematurely been billed permitted default That defaulted. Wintz af- containing the terim arbitration award secondary pursue to Central States to directing Central States order firmative payments. liability for the withdrawal demand, noting a re- a revised issue “starting to preferred Nordberg vised demand Proceedings A. before anew.” process sent 31, 1996, May On begin demanding a Hunt notice 1, 1998, arbitra- pursuant On its on withdraw- making interim award, issued tor’s interim and Cen- pay, liability. Hunt refused al for With- Notice Demand a revised seeking interim brought suit tral States seeking pay- Hunt Liability against case was and the payments, withdrawal November from from ments Nordberg. A. John assigned 1, 1999. On October until final to a converted cases, the interim award was a district Although in most parties. by stipulation of allowing pen- award an routinely order grants award, final arbitration payments, interim to obtain plan sion actually make Hunt to require specifically exception be an proved I Rather, it sole- payments. any I, Nordberg noted withdrawal rule. In Hunt ly ordered Central States to issue the early re- as May 3” and held that Central vised demand. bound by its admission before the district court and thus the date of Proceedings
C. Judge Shadur before was not legitimately in dispute. 15,1998, On October Central States filed See id. We further concluded that suit seeking to enforce the arbitration MPPAA, pension fund was not award, assigned case was permitted to issue a notice and'demand for Milton Shadur. Central complaint until after employ- sought to affirm and enforce the arbitra- er incurred such liability. See id. Be- tor’s final award to enter cause Wintz had not withdrawn at the time against Hunt in accordance therewith. On Central States issued the original demand *4 8, 1999, April Judge Shadur judg- entered Hunt, we held that Central States’ fail- ment enforcing the final award. April On comply ure to procedural with this require- 26, 1999, 59(e) States filed a Central Rule ment meant that Central States could not motion to judgment, amend seeking to payments collect interim May on the based amend judgment provide for mone- 31,1996 notice. See id. because, tary above, relief as noted arbitration’s provide award did not for In affirming Judge rulings, Shadur’s we payments. Judge Shadur de- noted that Arbitrator “Jaffe’s sole affirma- motion, nied the noting power that his was tive order was that Central States issue determining limited to whether the arbi- demand,” and that Judge Shadur was time, trator’s was decision correct. At no 59(e) deny correct to Central States’ Rule Judge Shadur on rule court, motion. Writing for the Judge Ev- ultimate issue of whether Hunt liable ans by concluded stating that for the withdrawal under the MPPAA or absolutely that, [W]e wish make clear on happen what would Hunt refused to while Central States cannot recover on make under the revised demand.
this our appeal, pre- decision does not D. Prior fact, Our Decision clude recovery. future ap- pears certain that Central States will 6, 1999, On appealed Hunt Judge (and should) receive the full withdrawal Shadur’s judgment enforcing the final fee to which it is entitled. perAs arbi- award. On June award, trator Jaffe’s the fund has issued moved to appeal Judge consolidate its of a renewed demand. Central Nordberg’s decision with its of appeal appears States to be impres- under the Shadur’s of denial Central sion States’ motion that either judgment, Nordberg’s to amend or and we issued an ordered consolidating Shadur’s opinions preclude it appeals. collecting from on this demand. second This judges’ is the case. Since both appeal, On this court affirmed low both rulings solely focused on pri- the fund’s States, er courts. See Cent. Southeast and or, (Indeed, premature demand. Southwest Areas Pension Fund v. Hunt already complying.) should be If Hunt Lines, Inc., (7th Truck Cir.2000) demand, fails (“Hunt ”). pay on this Central I regard With appeal merely States need file decision, of under the Nordberg’s suit rejected Central States’ effort MPPAA’s enforcement argue scheme to ensure that “on or about 20” could mean “as that it receives interim payments. Analysis I. Id. at 743.* grant review We Present Suit E. The novo, the facts viewing all of judgment de dictate, States Following our inferences drawing all reasonable Hunt for collection against filed suit nonmoving party. of the in favor therefrom with- complete for and Southwest See Cent. assigned Hunt, case was and the White, 258 F.3d v. Pension Fund Areas our Ignoring A. Judge Ronald Guzman. Cir.2001). (7th prior Because the judgments prior statement on a in federal court brought litigation was collect- from preclude” “not judi- claim, rule of res the federal federal demand, ar- the renewed ing under ap judicata res whether cata determines judicata res gued action. See In present plies to the responded action. Central Inc., 814 F.2d Energy Co-op., Matter determine first to was the suit Cir.1987). three re revised ultimate under res federal summary judg- quirements Hunt moved demand. (1) parties of the or identity case an present law are: ment, contending that alternative, (2) or, of the causes identity an privies; their *5 (3) recovery. actions; judgment on the a bar final laches should and argu- summary judgment dispute no that There is moved merits. id. See alia, Rather, did not judicata res ing, inter the first element satisfied. in stated explicitly had remaining apply because whether the dispute parties the action would subsequent that a Hunt I have been satisfied. two elements failure to Hunt’s and because be revised demand that both the
make
record
The
shows
wrong.
a new
and
ac
Nordberg
constituted
the
before
action
Shadur,
our
as well as
tion before
argu-
rejected Hunt’s
court
The district
I,
proce
the
in Hunt
concerned
decision
in
judgment
granted
ment and
original
propriety
dural
States,
denying
while
favor of Central
to
directive
Arbitrator
Jaffe’s
demand
The district
cross-motion.
Hunt’s
demand notice.
revise the date
the
judgments
prior
the
noted that
initialiy
has
ad
Thus,
action
ever
no previous
issues
procedural
the various
involved
ultimate
under
Hunt’s
dressed
demand
the revised
“not collection under
Further,
party
neither
revised demand.
disregard payments
Hunt choose
should
subject of the arbitration
disputes that
demand.”
to the revised
pursuant
only
31,1996 original demand
was the
failure
held
court then
district
a
where
concern scenario
and did not
constituted
demand
revised
pay under
pursuant
disregard payment
chose to
judica-
res
was not
wrong and thus
a new
Therefore, we con
demand.
the revised
on its
resting solely
appeals,
ta. Hunt
pay-
to make
Hunt’s failure
clude that
judicata.
claim is
res
argument
this
*
fees,
Fund v. Hunt Truck
Pension
attorney's
Southwest Areas
sought
Subsequently, Hunt
Cir.2001)
Lines, Inc.,
1006
court.
by the district
were awarded
which
II").
(‘
holding,
Di
However,
so
the district
appeal, we held that
on
‘Hunt
court,
Wood,
again
writing
in
awarding
ane
discretion in
had abused its
liabil
pay for
dispute
structed Hunt
no
attorney's
there was
fees because
so.
failure to do
ity
questioned Hunt's
ultimately
face
that Hunt
See id.
liability. See Cent.
operate
ments under the revised demand is a new
to bar the subsequent suit.” See
Energy
wrong
Co-op.,
and thus the causes of action are
we have held that “[i]f reserves for later resolution an issue that
might adjudicated otherwise have been proceeding,
the initial will not