*1 514 engaged in ‘unfair’ or has Questions An the defendant Rockefeller, Antitrust
S.
—, 113
tactics.” Id. at
S.Ct.
(“If
‘predatory1
(1974)
sufficiently evil intent
27
swers
omitted).
(citations
a com 892
destroy
exclude
or
can be shown—to
coerce customers
prices, or
control
petitor,
event,
in
not the case which
any
this is
might not look
suppliers
Court
—the
predatory actions
must consider whether
we
product immedi
beyond the
relevant market
of
may
the amount
by defendants
reduce
involved.”)-
the district court
And
ately
to show a dan-
market share that is needed
842,
Co.,
F.Supp.
876-
355
Ford Motor
Rea v.
Having shown
gerous probability of success.
(3d
rev’d,
F.2d 577
(W.D.Pa.1973),
497
77
defendants, plaintiffs
by
no market share
126,
868,
denied,
95 S.Ct.
Cir.),
419 U.S.
cert.
alleged
nothing
couple
their
have
(1974),
finding
that a
held
(3d Cir.1980), 451 U.S. cert. (1981). 1981, 68 L.Ed.2d
S.Ct. unanimously
Further, Supreme Court Sports. In re- Spectrum Lessig in
interred which relied opinion versing America, a Ninth Circuit Appellee, UNITED STATES of monopolize intent Lessig, it held that on sufficient!)] to establish the alone “is not WOODS, Appellant. Alan that is the of success dangerous probability attempts.” Id. prohibition object of 2’s No. 93-1432. — at-, at 890. It ex- S.Ct. Appeals, United States Court itself not directs plained that “law Third Circuit. competitive, even which is against conduct so, which un- severely against conduct 34.1(a) LAR Under Third Circuit Submitted competition itself.... destroy fairly tends to 11, April 1994. Thus, courts have been this Court May Decided 1994. § 2 which to avoid constructions careful foster competition, rather than might chill Rehearing for Panel Sur Petition reasons, § 2 makes the these it.... For July 1994. only when it single unlawful conduct of a firm threat- dangerously actually monopolizes or might § 2 be to do so. The concern
ens anticompetitive ends as to
applied so further by inquiring whether plainly not met
is *2 Stiles,
Michael R. Atty., U.S. Walter S. Jr., Batty, Atty., Asst. U.S. Chief of Appeals, Marinari, Terri A. Teece, Frederick A. Asst. Attys., PA, Philadelphia, appellee. for O’Shea, Jr., Robert George Howard, J. W. III, P.C., PA, Philadelphia, appellant. for BECKER,
Before: MANSMANN, and SCIRICA, Judges. Circuit
OPINION THE OF COURT BECKER, Judge. Circuit This is a Sentencing appeal. Appellant Alan Woods sentenced under the United States Guidelines for his involvement two armored truck rob- beries. At sentencing, gave the district court Woods a two level increase in his sentence obstruction of because Woods had given government misleading information in an implicating effort to avoid two friends in a third robbery. armored truck Woods argues that misleading because the informa- tion impede did not or obstruct the investiga- tion or offenses for which convicted, he was upward adjust- neither an ment justice” “obstruction of under departure 3C1.1 nor a under 5K2.0 was permissible under the Guidelines. Because of the manner in which the Guidelines are this, area, written we feel constrained to agree Woods, hence, albeit reluc- tantly, judgment we vacate the of sentence and remand for resentencing.
I. BACKGROUND August July 1991, From 1990 until took in a series of robberies of armored trucks in Philadelphia. around Sep- 1991, grand jury tember indicted Woods for robbery of a Brooks armored truck out- Temple University side the Hospital in Phila- (the delphia “Temple robbery”).1 On Febru- ary day began, one after the trial guilty plea Woods entered a in which he admitted participating Temple robbery but also in another armored truck alleged 1. The indictment both a vio- commodity substantive or the movement of commerce, article or Act, (con- lation of the Hobbs by robbery"), conspiracy. "obstructs, delays, duct or affects commerce (the ‘obstructed “the defendant concluded that Station robbery Amtrak 30th Street materially false state- justice’ by providing Philadelphia. robbery”), also “Amtrak by committing perjury FBI and ments to the provided plea in- court then jury.” The before information provide *3 level two lev- offense creased the defendant’s involved person who was any about § § 5K2.0 or 3C1.1.” “pursuant to either els robbery, Amtrak robbery, the Temple the followed, argues appeal which Woods This [of] or crimes “any other robberies and inappropriate was increase that the two level pro- also agreement knowledge.” The he has adjustment pursuant to upward either as an government determines “if the that vided departure pursuant or an 3C1.1 provided full and has not that the defendant §to 5K2.0. ... the cooperation truthful the defen- and the be voided II. DISCUSSION any subject prosecution shall be dant SCl.l, Justice” A. “Obstruction Section of government has the crime which federal pro the 3C1.1 of Section including ... knowledge vides: aris- offenses justice, the substantive of willfully or If obstructed the defendant investigation.” ing from this im- attempted obstruct or impeded, or FBI supplying the began then Woods justice during of pede the administration Amtrak Temple and about the information investigation, prosecution, or sentenc- the two told the FBI about He also robberies. offense, the increase ing of the instant robberies, at a one truck other armored by 2 levels. offense level at a Liberty Bank and another branch of the added). (1993) (emphasis 3C1.1 gave this He Supermarket. later Pathmark al- language could be read to Although this testimony be- during his information same adjustment whenever de- low jury. grand a fore investigation prose- or fendant obstructs Am- Temple, of the descriptions Woods’ investiga- any during the offense cution trak, substan- robberies were and Pathmark tion, sentencing the offense or prosecution, coop- by other given those tially same as convicted, was we for which the description of the erating witnesses. Woods’ adjustment ap- this squarely held that however, signifi- robbery, was Liberty Bank ef- only the defendant has made plies when with, de- begin Woods cantly To different. prosecu- investigation, forts obstruct Liberty Bank his involvement nied tion, sentencing the offense of convic- or at home claiming that he had robbery, been Belletiere, 971 v. tion. United States fact, had been it occurred. Woods when (3d Cir.1992) (“Section apples of the rob- circling vicinity in a vehicle attempt or to obstruct to willful obstruction acting aas at the “switch site” bery and was justice during ... ‘the administration purposes of importantly for More lookout. ‘Any in- sentencing instant offense.’ of the consistently however, appeal, Woods than that 3C1.1 refers terpretation other his, Edney that two friends William nied prosecution obstruct the to efforts to crime. Glenn, involved in the were Earl this mo- render conviction offense ” out, however, that both FBI later found omitted) (citation (em- meaningless.’ difier Edney participated had and Glenn phasis original)); accord United States enough eventually gathering evi- robbery, Cir.1993) 1081, 1084 Levy, 992 F.2d con- But Woods’ prosecute them. dence to (obstruction the offense of convic- must be of Edney and Glenn delayed prosecution of tion). duct eight months. Temple pled guilty however, not, sentencing hearing the district He did At Woods’ Amtrak robberies. testimony Liberty robbery. conduct about Woods’ Bank plead guilty heard to the court Liberty Indeed, Bank for that investigation of the never even indicted during was no efforts to ob that made court found crime. Thus Woods robbery. The district or sen investigation, prosecution, materially statements struct had made false conviction, tencing of offense jury, whereupon it FBI and pursuant enhancement inap- (g) 3C1.1 was providing a materially false statement propriate.2 to a ques- We therefore turn to the law enforcement officer signifi- cantly impeded obstructed upward departure ap- tion whether an or the official propriate. of the instant
offense[.] 3(b) Application Note & Upward B. Section 5K2.0 Departure (g). Application 4 supplements that list provides Section 5K2.0 sentencing with “a examples non-exhaustive list of may depart court guidelines from the if it types that, of conduct absent separate finds: count of conduct, conviction for such do not aggravating application there exists an warrant enhancement, or miti- of this *4 ordinarily gating kind, can appropriately circumstance of a or to a be by sanctioned the determination degree, particular of the adequately not taken into consider- sentence within the applicable guideline otherwise by ation Commission' in range.” 3C1.1, Application U.S.S.G. formulating Note guidelines that should re- added). (emphasis 4 example One of conduct sult in a sentence different from that de- that does not warrant an jus- obstruction of scribed. adjustment tice “making is statements, false § 5K2.0 (quoting oath, not under officers, law enforcement 3553(b)) (internal omitted). quotations Application unless 3(g) applies.” Note above justice, relating Woods’ obstruction of as it 4(b). Application Note crimes, serious, did to serious quite was itself The appears Commission thus to have con- and it would seem that he deserved the two- sidered false statements like those involved upward adjustment notwithstanding level here, punish and elected not to them as it did not fall within ambit of of the conviction for the offense. instant (and putative 3C1.1. The quite plausible) basically types made two ground upward departure for an would be his false statements when he tried- to throw the false statements to the government, resulting FBI off the trail of his friends: ones to the justice in obstruction of in connection with an grand jury, and agents ones to the FBI investigation other than for the offense of during interviews their of the conviction but related it. grand were, crimes. His jury lies to the course, perjury, problem perjury The approach, however, is adequately this 3(b). Application taken into account by that the ostensibly is Commission considered agents His lies to the FBI during the inter such fashioning § situations when 3C1.1 of views were not but fell' into the Application Guidelines. The *5 by Appel- petition rehearing for filed The investigation the oth- into the FBI’s ate with lee, judges who having to the been submitted robberies, Liberty rob- including the Bank er court and in the decision of this participated help only provided bery. not little He decision hav- judge who concurred the no state- agreement, but his false the pan- rehearing, petition the for ing asked up government a held ments rehearing is DENIED. el two potentially shielded eight months and robbery ring prosecu- from members accounts, conduct By all Woods’ tion. justice. amounted an language bound
But we are notes. do not application
§ and its We the Commis-
fully
the basis for
understand
("the government
tell,
has decided
at 11
randum
the obstruction
As far as we can
3.
departure
merely
described
appears
limited to
ob-
seek
adjustment
to be
conduct
prosecu-
pursue
the Com-
structing
offense” because
herein rather than
tions").
additional
the "instant
(and
right
option
possible
protect the
defendant’s
But such an
mission wanted
incrimination,
remain).
against
may
see U.S.S.G.
self
indeed
1,
lies
Application
and believed that minor
Note
suggestion
accords with
4. We
that this
note
adequately taken
could be
about other crimes
Sentencing
import
Reform Act and
clear
guideline
applicable
account within
into
Guidelines are
themselves.
the Guidelines
3C1.1, Application
2.
range,
see U.S.S.G.
evolutionary process, see United States
part of an
implicated
would be
of these concerns
Neither
(1991),
Report
Sentencing
Commission Annual
police
about
a
misleads
officers
when
rulings
of the District
be informed
and should
might
plea
used a
crimes for which
agreement
Appeals, particularly in the
Courts and Courts of
prosecution.
himself from
to insulate
they play
departures,
a critical role in
area of
result,
not to
to be little
a
seems
reason
As
give
there
process begun by the
ongoing
under such
circumstances.
enhancement
has invited the
Act. The Commission
Reform
explanation
possible
for the outcome
One
glitches
comment
bench to
on
federal
3C1.1 is
meant
case would be
so that it
and the need for revision
process
plea bargaining
therefore
affect the
guidelines appropriately.
See
amend
plea agree-
remedy breaches of
is not meant to
4(b),
(emphasizing
§§
Pt. A
Ch. 1
3C1.1, Application
Note 1
ments. Cf.
pinpoint
cases to
Commission will review
(refusal
applica-
plea
is not a basis for
to enter
appropriate);
United
are
where revisions
cf.
might
provision). The
of this
Commission
tion
Blackston,
(3d
Cir.
940 F.2d
States v.
plea agreements are
have felt
breaches
sought
1991) (pointing out that the Commission
example,
ways. For
dealt with in other
best
ques
respect
judges
with
feedback from
government
have rescinded the
could
probation
supervised
revocation of
tion of
release),
prosecuted
for the crimes
mentioned
-
-,
denied,
S.Ct.
cert.
plea agreement as well as for the
(1991);
see also
L.Ed.2d
robberies,
justice.
and obstruction
994(o) (“the
shall consult
Commission
not to take such
chose
this case
aspects of the Federal
on ... various
sought only
authorities
action
instead
justice system”).
Sentencing Memo-
criminal
parture. See Government's
Notes
category by Appli
statements considered
§ 3C1.1 contain a non-exhaustive list of ex-
4(b),
3(g)
cation Notes
both of which
amples
adjustment
of conduct to which the
appropriateness
consider the
of an
applies, including:
adjustment when the defendant makes false
(b) committing, suborning,
attempting
statements to investigating
Togeth
officers.
perjury;
to suborn
[and]
they
er
adjustment
demonstrate
is
appropriate only when the statements made
by
2. The district court tried to avoid Belletiere
willfully
jus-
whether this defendant
obstructed
stating that
during
sentencing
tice
of the instant of-
language
[t]he
makes it
clear that it
by providing materially
fense
false statements
apply
does
“during
...
grand jury
to the FBI and the
in violation of
sentencing
ap
of the instant offense.” There
plea agreement....
his
pears to be at least
cases which make
three
it
court, however,
The cases cited
the district
all
clear
perjures
that a defendant who
himself
involved situations in
which
defendant inter-
sentencing hearing, triggers
an increase in
fered
sentencing
with the
offense
willfully
level of two levels for
obstruct
Goldfaden,
offense of' conviction.
987 F.2d at
ing justice.
Goldfaden,
[United
States
227; Hamilton,
1130; Hassan,
929 F.2d at
(5th Cir.1993);
F.2d 225
United States v. Ham
ilton,
They
proposi-
F.2d at 309.
(6th Cir.1991);
do not stand for the