United States v. ButtersUnited States v. Butters
Applying this standard, we conclude that the district court acted appropriately. The government advanced its legitimate interest in protecting its ongoing investigations and the safety of its confidential sources. See id. at 324 (“The government’s strong and legitimate interest in protecting confidential sources from premature identification is undeniable.”). The scope of the hearing was no broader than needed to protect this interest, as it concerned only the reliability of the information that there was a “green light” out on the Cabrals. The government disclosed the substance of the evidence it intended to elicit during the hearing to the Cabrals, including information that two different confidential informants advised law enforcement officials about the “green light.” The district court considered reasonable alternatives to proceeding ex parte, including providing the Cabrals with a redacted copy of the hearing, but decided against it because of the “serious risk that ongoing investigations will be jeopardized, and people in confidential positions will be subjected to harm.” Finally, after reviewing the sealed transcript of the hearing as well as the other proceedings in the case, we are convinced that the district court carefully considered the reliability of the ex parte information, by, for example, personally evaluating the credibility of the officers who had assessed the reports from the informants. We therefore hold that the Cabrals’ due process rights were not violated when they and their attorneys were excluded from the August 23, 2012 ex parte hearing.
Our affirmance of the district court’s judgment should not be construed to suggest that the Cabrals may be housed in the SHU under present conditions indefinitely. While we discern no constitutional violation on the record before us, we do not foreclose the possibility that such a violation may develop as the length of the Cabrals’ detention in the SHU extends, or that the district court may, at some point in the future, order the Cabrals transferred to a less restrictive setting.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Lan Nguyen, Assistant United States Attorney, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.
PRESENT: GERARD E. LYNCH, RAYMOND J. LOHIER, JR., and SUSAN L. CARNEY, Circuit Judges.
SUMMARY ORDER
Defendant-appellant Trevlon Butters appeals from the judgment of the district court, entered April 19, 2012, convicting him upon his guilty plea of a single count of possession of a firearm by a felon in violation of
Butters appeals his sentence on procedural grounds, arguing that the district court erroneously applied a two-level upward adjustment for obstruction of justice due to Butters’s misrepresentation that he was a United States citizen during interviews with pretrial services and probation officers. Butters argues that (1) his lie did not relate in some manner to the underlying offense or related conduct, as required by
A district court’s findings of fact regarding obstruction of justice are reviewed for clear error, and its ruling that the established facts constitute obstruction of justice is reviewed de novo, “giving due deference to the district court’s application of the guidelines to the facts.” United States v. Bliss, 430 F.3d 640, 647 (2d Cir.2005) (internal quotation marks omitted).
The obstruction of justice enhancement applies, however, only where a defendant “consciously act[s] with the purpose of obstruction of justice.” United States v. Peterson, 385 F.3d 127, 139 (2d Cir.2004) (internal quotation marks omitted). “In order to impose a
The district court here did not make the necessary finding of intent. The closest it came was during the sentencing proceeding, when the following colloquy occurred between the district court and defense counsel:
Defense: We have submitted previously to Your Honor in an oral argument and I believe from our papers it’s clear that our position was that the statements would be—are just as likely to be made in an effort to affect a collateral proceeding; that is, an Immigration proceeding. While that might be something that affects where within a sentencing range a sentence should fall, a determination that a defendant has made a statement in order to avoid deportation, that is not something that is considered obstructive behavior. And so, if that is the motivation, then I would also say that it shouldn’t be something that affects whether the defendant accepts responsibility.
Court: That hasn’t been argued, has it?
Defense: It has been argued, Your Honor; that we’ve made clear, I think even from our initial submission, that the statements were just as likely to be designed to affect a collateral proceeding and that [ ] is not obstructive.
Court: But couldn’t it affect both?
Defense: It could. But the Second Circuit in [United States v. Reed, 49 F.3d 895 (2d Cir.1995)] said that the Court has to look at what the subjective intent or what the intent was of the defendant;
whether his intent was to obstruct some aspect of this Court case as opposed to Immigration. Court: I do believe that statements made to the Pre-Trial Services Officer who is preparing a report for the Court to determine the defendant’s release status.
Defense: I understand....
The statement by the district court, “I do believe that statements made to the Pre-Trial Services Officer who is preparing a report for the Court to determine the defendant’s release status,” does not qualify as a specific finding of intent. While we do not require district courts to use “magic words” at sentencing, where a defendant objects to a proposed obstruction enhancement, “the district court [is] required to make specific, clear, and reviewable findings as to whether [the defendant] intended to obstruct justice.” Bradbury, 189 F.3d at 204. We therefore remand the case to the district court for resentencing. See id. at 205.
Butters argues that the record could not support a finding of intent. He contends that a reasonable fact-finder would conclude that he lied about his citizenship status not to affect his bail status, but to avoid being reported to the immigration authorities. A reasonable fact-finder might well reach this conclusion, but would not be required to do so. As the district court noted, a defendant’s citizenship status is material to bail, and a reasonable fact-finder could infer that Butters’s lie about this matter, during an interview for purposes of formulating a recommendation with respect to release conditions, was intended at least in part to influence that recommendation. Moreover, the record contains evidence that Butters lied not only about his citizenship but also about his personal history and family members’ names and whereabouts, and that those matters materially affected the investigation of the defendant for sentencing purposes. On remand, the district court should make a specific finding as to whether any of Butters’s statements to pre-trial services and/or probation officers was false, and if so, whether any such statement was made with intent to obstruct justice “with respect to the investigation, prosecution, or sentencing” of this criminal case.
For the foregoing reasons, the the case is REMANDED to the district court for resentencing.