UNITED STATES оf America, Plaintiff-Appellee, v. Albert Lee ANDREWS, III, Defendant-Appellant.
No. 14-4422.
United States Court of Appeals, Fourth Circuit.
Argued: Sept. 15, 2015. Decided: Oct. 30, 2015.
802 F.3d 964
II. The Claims against Costanza, Davis, and Wertheimer
To avoid sua sponte dismissal of a
Even if Covington and Parker were state actors against whom a timely
Other circuits, in determining that law guardians are not state actors for the purpose of
We also affirm the district court‘s dismissal of the claims against Davis, Milan‘s mother. The allegations in the complaint indicate that Davis was acting as a private individual and that she was in no sense a state actor. Accordingly, the claims against her were properly dismissed on that basis.
CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the district court.
Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge MOTZ and Judge KEENAN joined.
WILKINSON, Circuit Judge:
Petitioner Albert Lee Andrews challenges here the imposition of a
I.
In the early morning hours of March 27, 2011, Andrews entered a Domino‘s Pizza store in Kannapolis, North Carolina armed with a handgun. He ordered an employee at gunpoint back into the office where the manager was working and dеmanded that the manager open the store safe. When he was told the safe was empty, Andrews stole money from the cash register and from two employees, as well as the manager‘s wallet. During the encounter, he pointed his gun at Domino‘s personnel and threatened to shoot on two occasions.
The manager immediately reported the robbery. While searching for Andrews, a police officer found an abandoned automobile that had run off the road and hit two other vehicles. He recovered two wallets from the car, one belonging to Andrews
Andrews was charged with interference with commerce by robbery under
Upon reviewing Andrews’ sentence, this сourt ruled that he no longer qualified for sentencing as a career offender, vacated his sentence, and remanded for resentencing. United States v. Andrews, 547 Fed. Appx. 248 (4th Cir.2013). Upon remand, the U.S. Probation Office issued a Memorandum that calculated Andrews’ total offense level as 22. The government then requested a two-level enhancement for obstruction of justice under
The district court found sufficient evidence to support the obstruction enhancement. The court stressed that Andrews knew that his attorney was going to present Hunter and Moffet as alibi witnesses. Given his regular communications with his attorney, Andrews must have been awаre of the substance of Moffet and Hunter‘s testimony before trial. Andrews’ prior knowledge of the false testimony and subsequent silence during trial, the court stated, amounted to obstruction of justice:
[W]hen a defendant sees somebody take the stand called by the defendant‘s lawyer and realizes that person is not telling the truth, that is absolutely telling something that is untrue, whether that defendant in sitting silently and ‘allowing thаt to proceed,’ takes a part in trying to deceive the Court.... [I]n this case, that‘s not all of it, because those witnesses testified one after the other. Mr. Andrews watched and heard the testimony of one provide false alibi evidence and sat there while the second was being called, which even if he had not been aware of the alibi information a week before, or the trial brief, which it stretches the imagination to think that he was not aware of it, he understood somebody was being called knowingly for the purpose of giving false information, all of which was being offered for the purpose of deceiving the jury into believing there was a reasonable doubt as to his whereabouts on the night of the armed robbery.
II.
A.
The sole issue before us is the propriety of the enhancement for obstruction of justice.
If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administratiоn 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.
The commentary to
In United States v. Dunnigan, the Supreme Court instructed district courts to establish “all of the factual predicates” of perjury when finding obstruction of justice on that basis. 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). Following that language, this court has reversed sentencing еnhancements under
Many of the purposes animating separate prosecutions for perjury also underlie sentencing enhancements for perjurious obstruction. See Dunnigan, 507 U.S. at 97-98, 113 S.Ct. 1111. In fact, the obstruction enhancement of
A sentence enhancement based on perjury does deter false testimony in much the same way as a separate prosecution
for perjury. But the enhancement is more than a mere surrogate for a perjury prosecution. It furthers legitimate sentencing goals relating to the principal crime, including the goals of retribution and incapacitation. It is rational for a sentencing authority to conclude that a defendant who commits a crime and then perjures herself in an unlawful attempt to avoid responsibility is more threatening to society and less deserving of leniency thаn a defendant who does not so defy the trial process.
Dunnigan, 507 U.S. at 97, 113 S.Ct. 1111 (citations omitted).
For the obstruction enhancement to function in this intermediate role and serve the purposes outlined by the Court, the district courts must be afforded adequate discretion in their fact-finding capacity. See Dunnigan, 507 U.S. at 95, 113 S.Ct. 1111 (treating the basis for obstruction of justice as an issue of fact left to the sentencing judge). District courts hold an espeсial advantage in fact finding where the sentencing enhancement is based upon testimony or trial proceedings that they have personally observed. See Gall v. United States, 552 U.S. 38, 51-52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Bumpers, 705 F.3d 168, 173-74 (4th Cir.2013). Of course, the advantages that district courts enjoy in their fact-finding capacities impose the concomitant obligation to actually find the facts necessary for meaningful appellate review. Where the enhancement for obstruction of justice is based on a defendant‘s perjurious testimony, trial court findings should encompass “the factual predicates” for perjury, namely that the defendant “(1) gave false testimony; (2) concerning a material matter; (3) with willful intent to deceive.” Perez, 661 F.3d at 192 (quoting United States v. Jones, 308 F.3d 425, 428 n. 2 (4th Cir.2002)).
Issues of law do often arise in sentencing, and the standard of review for such issues is obviously de novo. But to routinely transform thе fact finding and sentencing discretion at the heart of a sentencing enhancement into broad matters of law risks adopting an aerial perspective in circumstances where the ground level view may prove the more valuable. As the Supreme Court noted in Miller v. Fenton, “the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judiсial actor is better positioned than another to decide the issue in question,” and close calls should be resolved “in favor of extending deference to the trial court[s]” where they hold the institutional advantage. 474 U.S. 104, 113-15, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985).
B.
In this case, the district court did not make an explicit finding that Andrews procured his alibi witnesses’ false testimony, a finding that would have been necessary to support each еlement of perjury. What it did do, however, was rest the enhancement upon the very essence of
Under the facts and circumstances here, we can find no clear error in the district court‘s imposition of the enhancement. As recounted above, the court below found overwhelming evidence that placed Andrews at the scene of the crime in Kannapolis. Of course, courts should not assume that any defendant who attempts to rebut substantial adverse evidence is a candidate for the obstruction enhancement. But in this case, the extensive evidence against Andrews served to fortify the district court‘s firm conviction that the alibi testimony from Andrews’ girlfriend and her
Nor can there be any doubt that Andrews was aware well in advance that his alibi witnesses were planning to present false testimony. That testimony was repeatedly highlighted in the notice of alibi, in the trial brief, and in counsel‘s opening statement. Even if his attorney had somehow kept him in the dark, which is hard to imagine, Andrеws also filed a pro se motion accusing the prosecution of intimidating his witnesses, including one alibi witness, and blocking them from testifying. He presumably knew the substance of the testimony that his motion sought to protect. Finally, as the district court noted, the alibi witnesses “testified one after the other.” J.A. 39. In the highly unlikely event that the first alibi witness surprised Andrews, the second certainly did not. All of the above convinced thе district court that the defendant was intimately connected with an effort to present the jury with a whopping lie as to his whereabouts on the night of the robbery, or as the trial court described it, an elaborate deception for which there was no innocent explanation.
It is true, of course, that Andrews did not take the stand and personally perjure himself. But the district court‘s finding that Andrews knowingly prеsented and likely actively orchestrated the presentation of false testimony was not only supported by abundant evidence, but also fell squarely within the conduct for which the defendant is expressly held responsible, namely “conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused.”
III.
A.
In addition to contesting the application of
In addition to the right to remain silent, the obstruction enhancement leaves intact the defendant‘s right to present a vigorous defense. The right to offer testimony and to call witnesses on one‘s own behalf is fundamental to our system of criminal justice. See Nix v. Whiteside, 475 U.S. 157, 164, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986); Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). But that right has never been
Nor has there been any violation of defendant‘s right to counsel. Andrews was represented by counsel throughout these proсeedings, and Andrews does not contend that the district court sought to probe the content of counsel‘s communications with his client. There was further no impediment to such communication. That the district court drew inferences or proceeded circumstantially to conclude that Andrews well knew his witnesses were attempting to deceive the court and jury is not tantamount to a Sixth Amendment viоlation. It cannot be the case that the imposition of a
B.
All this is not to deny a certain tension between the exercise of the aforementioned rights and the imposition of the obstruction enhancement. The Guidelines themselves anticipated this tension, and the cautionary language following
2. Limitations on Applicability of Adjustment.—This provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant‘s denial of guilt (other than a denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide information to a probatiоn officer, or refusal to enter a plea of guilty is not a basis for application of this provision. In applying this provision in respect to alleged false testimony or statements by the defendant, the court should be cognizant that inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice.
AFFIRMED.