United States v. Calvert

1237 AFFIRMED; neously plea be accorded should Conviction RE- sentence [sjolemn great weight because declarations MANDED. carry court open strong pre-

made (internal verity.”)

sumption quotation

omitted). can

Nor the failure to advise Ross of the proof

standard constitute “fair and

just reason” for withdrawal because Ross

understood the reasonable doubt stan- applied, dard as reflected in the affidavit America, UNITED STATES plea agreement he filed and Plaintiff-Appellee, signed of which quoted are above. —both Accordingly, uphold the district court’s v. deny decision to Ross’ motion to withdraw CALVERT, L. John Defendant- plea.

his guilty Appellant.

III. No. 06-30643. Finally, requests Ross Appeals, United States Court of case be remanded under United States v. Ninth Circuit. (9th Ameline, Cir.2005). 409 F.3d 1073 sentenced, After Ross was the Supreme 28, Argued and Sept. Submitted 2007. Booker, Court decided United States v. 14, Filed Jan. 2008. 220, 738, U.S. S.Ct. L.Ed.2d 621 (2005). Booker, In the Court held that the

Sentencing advisory Guidelines are appellate courts should review

sentences for “unreasonableness.” Id. at Here, 125 S.Ct. 738. the district imposed

court’s sentence was at a time

when courts believed the Guidelines were a

mandatory sentencing regime. This con plain

stitutes error Booker. under See

Ameline, 409 F.3d at Accordingly, 1073. proceedings pursu

we remand further

ant to Ameline.2 See id. at 1084-85. 1, 2007, Sentencing It applies should be noted that to defendants sentenced 3, 2008, on or after that date. March time On Guidelines for crack cocaine offenses were reductions for crack cocaine offenders sen- during appeal. amended Ross' See Guidelines 1, 2007, prior tenced to November will be (2007), C, Appendix Manual Amendment 706. pursuant authorized 18 U.S.C. adjusts The amendment downward two 3582(c)(2). addition, Supreme In Court assigned levels the base offense level to each recently held that “it would not be an abuse quantity threshold of crack cocaine listed in of discretion for a district court to conclude Drug Quantity pro- Table in 2D1.1 and sentencing when defendant determining vides a mechanism for crack/powder disparity yields a sentence ” range involving for offenses crack ‘greater necessary’.... Kimbrough than States, -, cocaine other controlled substances. 552 U.S. 128 S.Ct. (2007). This amendment became effective November 169 L.Ed.2d 481 WA, Wall, Spokane, Esq., D.

Richard appellant. Rice, of the United Thomas Office O. WA, ap- for the Attorney, Spokane, States pellee. and RONALD FLETCHER

Before: B. Judges, and GOULD, M. Circuit LARSON,* District Judge. G. STEPHEN LARSON; Judge Opinion by Judge B. FLETCHER. Concurrence * California, Larson, sitting by designation. United Stephen G. The Honorable Judge District for the Central District LARSON, Judge: mediately District called 9-1-1. stag- came gering to the bathroom and told her that Today sentencing guideline we resolve by Tyler, had been shot but that he had in our decision in question open left managed Tyler (Clyde to shoot as well had v. States Smith: When someone is convict- surreptitiously gun retrieved a from the against a retaliating ed of federal witness point kitchen at some during the home 1513(b),may § in violation of 18 U.S.C. invasion). Tyler lying Geraldine observed in eight-level increase found United States room; on the in living floor he (“USSG”) later Sentencing Guidelines 2J1.2(b)(l) (Nov. 2000) hospital. died at the § for an offense “causing threatening physical cause Clyde abdomen, had been shot in the person to a ... in order to obstruct bullet placing wound him intensive care justice” imposed the administration be hospital at the for two a half and months judicial if pending even no was and requiring that he receive extensive 826, at the relevant time? 387 F.3d 831 n. physical rehabilitation and nursing care. (9th Cir.2004). court, 6 The district follow- ing the lead of the Seventh Circuit ensuing investigation into the home Duarte, (7th v. United States 28 F.3d 47 invasion of the Overdorffs’ residence un- Cir.1994), found such an permissi- increase Tyler covered evidence indicating that was below, ble. For the reasons set forth recruited to commit the crime John affirm. Calvert. Authorities traced Calvert’s mo- tive, turn, prosecution to a 1995 federal FACTUAL AND PROCEDURAL against one Richard Peters on federal tax HISTORY charges hiding evasion financial assets 4, 1998, At p.m. Timothy 8 June key in Canada. government One of the Tyler knocked on Clyde the door to and witnesses at the 1995 trial was Peters’ in Spokane, Geraldine Overdorffs home friend, longtime Clyde Overdorff. Peters Washington. Clyde opened When was convicted of the tax and in- offenses Tyler inquired door about a home motor carcerated at a federal correctional institu- elderly couple had sale on their tion, Calvert, where he met who was incar- Clyde premises. Tyler took around to the cerated there at the time on a firearm of the home to him back show the motor offense. thereafter, Shortly home. Geraldine yard. heard a commotion in the back in prison plot While Peters hatched a door, Peering spied out the side Geraldine against Clyde seek retribution Overdorff Tyler pushing back toward the testifying against him. After Calvert gun point. house at Once inside the elder- and Peters prison, were released from Cal- home, ly couple’s Tyler forced them to sit quickly vert became indebted to Peters in dining in two room chairs and then bound $60,000. the sum of In exchange for for- their wrists to the plastic chairs with ties. debt, giveness agreed of the Calvert point, At some Geraldine pleaded Ty- plan participate robbery at the leave, ler to to which responded, “I Overdorffs’ home to make real Peters’ you don’t like this more than do.” vengeful Tyler desires. Calvert recruited deed, help carry him out accompa- Shortly Tyler thereafter took Geraldine bathroom, Tyler there, nied to the left her Overdorffs’ home on the went dining night question, back to the room. Moments later and served as the look- gunshots. Geraldine heard three im- out getaway She and driver of the car. issued its Court Supreme the date by authorities later arrested Mix, March, States Booker.” United jury opinion convicted and then Cir.2006). (9th Initially, 906, to retaliate conspiracy 457 F.3d U.S.C. of 18 court witness, a violation district we determine witness, a violation appli applied retaliation considered properly dur- 1513(b), a firearm use 18 U.S.C. v. Can guideline. See United cable of 18 violence, a violation ing Cir.2006). a crime (9th 1269, 1279-81 trell, being a con- 924(c)(1)(A),and for applying not err in did If district court firearm, a aof possession victed felon the reason review we then the guidelines, § 922(g). 18 U.S.C. violation of light itself the sentence ableness im- sentencing hearings, numerous After U.S.C. forth factors set court, by the district sentence of positions 3553(a). chal Id. at Calvert from and remands to appeals multiple interpreta court’s only the district lenges No- sentenced on court, was Calvert this calculating his the Guidelines tion of 2006, sixty months on to vember sentence, we review de which question both count, ninety months on conspiracy Kilby, 443 F.3d novo. United possession felon the retaliation Cir.2006). (9th 1135, 1140 concurrently run (which were to counts convicted, sec- was with the time Calvert consecutively At another but one with 2J1.2(a) counts), provided 120 months on of the Guidelines tion remaining (running consec- count twelve for several a firearm level of use offense base counts), for a total other utively involving obstruction statutory offenses prison. in federal months is the witness-retalia- justice, one of which § 1513. at 18 statute tion found at this arriving of contention point A statutory provisions 2J1.2 cmt. See USSG eight-level en- was sentence 2Jl,2(b)(1) appli- statutory provisions (identifying the in USSG found hancement on the as “18 U.S.C. sentence to the Guideline to Calvert’s cable applicable 1516”). 1505-1513, even The counts §§ [and] retaliation-related witness home invasion of the eight- the time though, provides at for further already convict- been had robbery, Peters level the base offense enhancement level sentence, had ed, prison completed had threatening physi- to cause “causing for custody, and was from been released damage, property person, to a cal prosecution, future any threat facing obstruct in order to Clyde eliminating any prospect 2J1.2(b)(l). justice.” USSG a witness testify Overdorff court concluded him. district “in order obstruct Seizing It is to that issue applied. enhancement justice” language the administration turn. now enhancement, makes Calvert the Guideline the in proposition that the unremarkable §OF DOES APPLICATION the defendant only applies where crease CONVICTED INDIVIDUAL TO AN adminis to obstruct the acts with an intent A AGAINST RETALIATING OF base, Calvert justice. From tration PEN- REQUIRE THE WITNESS decline that we in a direction leads PRO- A JUDICIAL OF DENCY follow. CEEDING? view, an intent to Calvert’s In two-step procedure We follow “a necessarily in- does not a witness following against imposed reviewing sentences elude an intent to obstruct This is ute as we find it predicated upon overly so, contends, he cramped because the obstruction conception of the system. only element met where there is some- Lost argument is any recog- thing presently that could be affected nition of predicate offense of that act. Without the existence of some which he was convicted. Calvert was not pending judicial proceeding at the mo- simply convicted of causing bodily injury retaliation, ment of argues, there Clyde Overdorff to seek revenge in the simply nothing system abstract, but of doing so through that act. argu- Such an as a witness the government testified posits ment jus- in the criminal trial against Peters. To- tice nothing entails more than the conduct end, wards that the jury was instructed of discrete proceedings. jury pro- Grand that, to convict crime, Calvert of the are, ceedings view, and trials in this more must have acted “with the intent to retali- just than the archetypes for the adminis- ate Clyde Overdorff because he justice; tration of they qua are its sine had been witness at a federal criminal and, hence, non presence their is essential trial.” It is this intent to harm someone to satisfying the intent element set forth because he or she is was a witness that in the Guideline. 2J1.2(b)(l)’s satisfies element requiring to intent obstruct the administration of Applied to case, the facts of this justice. Intending to harm physically argues that no intent to obstruct can be someone due to their service as a witness inferred because Peters was under no fundamentally contravenes and under- threat prosecution of at the time of- the mines the justice. administration of committed, fense was having been convict- completed ed and his sentence the when There are components certain in the crime sense, occurred. In this the present justice system without which it could not case is unlike the presented one were function. Witnesses are among these es- with in Smith where the defendant’s “act (and components. sential Witnesses the of retaliation occurred while [the defen- they provide) service are the engine, knew that a burglary dant] charge was want aof better phrase, from which much pending against her son” and thus her (the of the output from machinery the “retaliatory intent inevitably operated to judicial discrete proceedings referenced justice, as a Calvert) threatened wit- [she] justice system the produced. is ness who would presumably have provided information, their Without and their will- additional government assistance to the as ingness very public to take the and visible burglary its prosecution progressed.” 387 furnishing role of testimony trial, sworn at at justice our system criminal could not func- tion. ability of law enforcement offi- In the absence of pending judicial a prosecutors cers and to discover prove and proceeding, Calvert argues that he can activity ability turns on their to only be said to have been purely motivated recruit willing witnesses to truthfully testi- by a desire revenge. Calvert fy in a public court of law. seeks to a rejected draw distinction Seventh Circuit vengeful “between in- Admittedly, and where a witness ret- suffers retaliations,” strumental with only lat- after a rendered, ribution verdict is punished ter more harshly. Duarte, 28 effect on the justice F.3d at reject 49. We such a not distinction as direct (lacking and immediate of context the witness-retaliation stat- proceeding identifiable that could be dis- and law enforcement conduct) of ability federal as result a

rupted cooperation. their gain to prosecutors a star witness where the case be would How- of trial. eve killed beaten might having information A witness and lacks direct the conduct ever, that completely to authorities be useful the con- mean not does impact immediate have serious would matter unrelated pernicious way any less inis duct such coming forward about qualms There administration effective Over- hearing of after evidence justice is more Similarly, experience. harrowing dorffs machin- integrity ensuring than as an informant has served who someone conclud- conducting and ery employed (even in the absence enforcement for law rather, proceeding; ing pro- information having current the continued requires assuredly also most rela- his or her vide) to sever may decide citizenry cooperation respect acts retributive learning of tionship upon Such general. law upholding Attacking in this case. taken like those cooperation respect continued functioning organ to a vital such those when question into serious brought act pernicious so system is past authorities assisted who have an obstruction itself amounts co- of their dutiful targets become iden- to an any connection without with or appre- individuals causes What operation. Without proceeding. discrete tifiable providing forward coming hension there forward to come willingness witness’ just that authorities information judicial ever, discrete if be a rarely, would during a harmed before they may be in- the first to conduct exacted will be harm trial, that such but stance.1 all, timing when the at them against being context, irrelevant. be for- occur also not will must retaliation In such this enhance- eight-level for the that gotten harm case to in this intent that requires apply, the Guideline ment to testimony past in giving someone carried been have the retaliate intent fear, and this upon preys trial The defendant manner: in a out giving by apprehension such perpetuates threatened caused or either must have the feared example concrete retribution. physical damage or cause property wit- former against acts retributive Such will retaliatory acts Trivial to the witness. mes- an unmistakable communicate nesses is reserved do; the enhancement cross the not to large at society sage to of intimi- a means “as acts used serious that particular, in path defendant’s application cmt. 2J1.2 USSG dation.” au- with cooperating from others dissuades up picked point This note 5. Peters Just general. in thorities specific commentary “[t]he Guideline’s pending did not have in sections [found characteristics chilling offense from the not detract him does serious 2J1.2(b)(l)-(2)] more reflect the have on can in this case the offense effect cmt. 2J.1 USSG obstruction.” cases, hindering witnesses other forms of will to retaliate an intent pre- abstract suggestion that 1. concurrence’s The jus- to obstruct containing an intent always also include "surplusage,” ceding discussion very suggestion perspec- tice,” "philosophical F.3d at than our more little "mischief,” puz- appeal, that likely invite this by upon tive” seized suggestion explanation it was zling given that provide an necessitated (which by the author was written Smith the case. why such is not concurrence) might dispute in that "one added). background Indeed, (emphasis intent to against any retaliate person for even this “serious form” of ... testimony given obstruction ... a witness captured §in in an official proceeding” considered a (emphasis add- ed)); floor, see also UniveRsity application as Guideline’s justice ... is the —that hope little of protection govern- the from purpose making of witness retaliation a ment if is harassed or by threatened (codified separate crime of chapter bail, the defendant out or the defen- (ch. 73) Title 18 that is entitled —‘Obstruc- dant’s friends or family; or the con- if Justice’) tion of from assaults and threats criminal, time, victed serving his after generally”). decides to against retaliate the individ- Moreover, in enacting ual the witness-retali- who assisted the government. This statute, insensitivity ation Congress made lack of concern for the clear victim pendency and witness a judicial tragic failing of a is proceeding was justice our system, criminal unnecessary to one which support a conviction. The hurts the whole society. tense, statute’s use of Without the past use cooperation witnesses, of victims and “retaliate,” of the term both clear make justice system criminal simply would that the of elements the offense satis- are criminals, cease to function and if few “bodily fied where injury” is inflicted as any, brought justice. would be to reprisal prior for testimony. 18 See Rep. 1513(b)(1) (“Whoever § knowingly (1982) S. 97-532 (emphasis No. at 10 engages thereby conduct and added), causes reprinted in 1982 U.S.S.C.A.N. bodily injury person to another ... with to commit (1993). the intent Whether against someone retaliate to intent The to to an intent amounts act a is itself therefore being a witness for necessarily defined is justice of the administration to obstruct intent act upon the dependent

justice. commentary to The question. that, absent such responds 2J1.2(b)(l) observation out this bears § the enhance- proceeding, judicial pending of witness-retaliation. the crime to relation 2J1.2(b)(l)(A) apply would § ment application the Guideline’s 5 to Comment or threatened injury is there whenever of application contemplates explicitly language of support tion find that it necessarily means against someone phrase begin, To critical Guideline. a such be tied to “always” have to does (“in order the Guideline proceeding. is, as one court justice”) this commen- self-defining,” nor noted, but “anything Neither has reasonably implies, states, or even tary kinds of actions “[m]any such must referred to linguistical- the “retaliation” fit can many kinds of outcomes is judicial proceeding while place con- loosely woven take phrase’s ly within Rather, act the victim’s it is Weston, pending. still v. States United fines.” witness, not whether serving as (1st Cir.1992), other abrogated on 212, 219 in an utility any further States, retains 508 witness v. United by Stinson grounds proceeding, contemplated or ongoing 123 L.Ed.2d 36, 39-42, 113 S.Ct. U.S. commentary the Guideline’s views as the ing that Calvert had such an intent. Little critical element integrating the witness-re- required else is to resolve appeal. Calvert’s taliation statute within the ambit of the majority opinion, although advanc- Guideline’s terms. Absent contrary some ing some worthwhile views how the indication, accept we controlling these judicial system operate, should concerns statements in commentary that purely me carries the troubling poten- retaliatory against acts a witness would tial of mandating legal standards on issues serve to impose the enhancement. See us, that are not before and have not been Lambert, 498 F.3d considered the context of concrete facts (9th Cir.2007) (“[The com- Guidelines’] raising genuine legal issues. The discus- mentary is generally authoritative unless sion of the interrelationship between retal- it violates the Constitution or a federal iation against witnesses and the adminis- statute, with, or is inconsistent or a plainly tration generally my concern. of, (in- erroneous reading guideline” Maj. op. at 1240-42. Nearly all of this omitted)). quotation ternal marks discussion is dicta that is unnecessary to intended to retaliate the resolution of this appeal. This is a Clyde Overdorff for his service as a wit- Sentencing case, Guidelines and we do not ness in a past trial; doing so assist district courts by offering philo- Calvert’s offense was committed “in order sophical perspectives guid- where concrete to obstruct the justice.” administration of ance is Although needed. I am reluctant The imposition of the eight-level enhance- to compound problem separate with a 2J1.2(b)(l) § ment in proper. was concurrence, I feel compelled to clarify

AFFIRMED. what we do not decide today. We do not identify catalog components” “essential BETTY FLETCHER, B. Judge, Circuit relevant to specially concurring: 2J1.2(b)(l). § Maj. op. at 1241. Nor do agree Because I eight-level sen- reject embrace a “direct and imme- tencing enhancement in U.S.S.G. diate impact” standard for application 2J1.2(b)(l) (Nov. 2000) § 2J1.2(b)(l) properly ap- § of a Maj. op. enhancement. plied case, in this I concur in judg- at 1241. We do not decide that ment. The Commentary 2J1.2(b)(l) to the § Guidelines properly applied where a contemplate application defendant’s acts affect public’s “re- 2J1.2(b)(l) § enhancement for a strictly spect cooperation” in upholding the act, retaliatory reaching law. Id. generally We do not deem “irrel- 2J1.2(b)(l) crime of § conviction. U.S.S.G. evant” timing of a defendant’s retalia- (“The cmt. n. 5 inclusion of ‘property tory dam- determining act (b)(1) age’ under 2J1.2(b)(l) subsection designed applies, or decide that address cases in property 2J1.2(b)(l) which damage applies where defendant’s caused or threatened as a means of intimi- merely impose acts “chilling effect” in dation or retaliation (e.g., to intimidate a proceedings. Finally, unrelated Id. we do from, witness a wit- not hold that universally ap- for, added). ness testifying.”)) (emphasis plies in all cases “with or without Moreover, offense, Calvert’s relevant connection to identifiable pro- discrete 1513(b) (retaliation against a wit- ceeding.” Maj. op. at 1242. The court’s ness), predicated on an intent to harm a commentary on points purely these sur- witness and jury specific made a plusage. find- Although much language of this de- good-faith majority s spurred decision, I reiterate its explain

sire to troubling them carry with words

these be seen does—to often dicta

potential —as that we legal standards cases as

in future adopted. nor considered

have neither only those deciding charged with

areWe based appeal, presented

issues mischief invite us. We before

record more. unnecessarily to do

straining America, STATES

UNITED

Plaintiff-Appellee, 411 withdrawn. FedAppx. Opinion CASTENEDA, MEDINA Francisco Defendant-Appellant.

No. 05-10372. Appeals, Court of

Ninth Circuit. 16, 2007. April and Submitted

Argued 15, 2008. Jan.

Filed notes WebsteR’s Dictio- (3rd naRy 1994) reference ed. possibility (defining for a up- further “retali- (an ate” meaning “to used, pay ward departure weapon injury) back “[i]f or kind”). say, That is to the statute bodily injury significant covers dam- property conduct occurring witness’s in- age resulted.” USSG cmt. applica- 2J1.2 after volvement in a proceeding ended. has tion note 4. It is in this sense failure to include the element a pending Duarte, Seventh Circuit’s statement judicial proceeding was not oversight that the intent to a wit- Congress’ rather, part; it was a conscious ness for conduct to which the enhancement choice stemming from recognition otherwise applies has the “invariable ten- retaliating against a witness for his or her dency” impede regardless service of when the retaliation justice, meaning holds this case. 28 occurred tended to obstruct the adminis- at justice. tration of expressed As Congress this made same observation Senate Report accompanying the passage enacting the witness-retaliation statute of section 1513: placing the statute among the various hearings These and studies have shown Chapter crimes codified in 73 to Title 18 of repeatedly that too often the victim has Code, the United States which is itself been “forgotten person” in the crimi- entitled “Obstruction of Justice.” The nal system. With few excep- placement of prohibited certain acts tions, victims and are witnesses either chapter strongly indicates that the intent ignored by the criminal justice system to commit such an act amounts to intent used simply identify offenders.... Duarte, to obstruct See 28 F.3d at [T]he victim witness cooperates who (“The 48-49 witness-retaliation statute prosecutor often does so at his punishes impede conduct calculated to own The victim risk. or witness has

Notes

notes Calvert’s property. or persons injury retaliatory a strict for enhancement cramped notion goes back argument judicial to whether act, regard without one it ignores as system justice inclusion “The pending: is proceeding any con- present element crucial (b)(1) under subsection damage’ ‘property 18of U.S.C. his, a violation viction, for like prop- in which address cases designed the indi- 1513(b): against The retaliation as a threatened caused damage is or erty victim’s occur because must vidual (e.g., to or retaliation of intimidation means present or past in a a witness status from, retaliate or a witness intimidate key com- links a element This proceeding. testifying).” USSG for, witness justice— in the administration ponent (em- note 5 application cmt. by a witness—with provided the service added). Background Similarly, phasis It is underlying the crime. the intent “numer- among the commentary describes at is- the crime distinguishes linkage obstruc- “may constitute offenses” ous involving general crimes more sue from bodily a witness causing ... tion of injury to threatened or injury causing tes- providing ... in retaliation Duarte, F.3d at 48-49. See someone. 2J1.2, cmt. back- ....” timony USSG someone intent added). This is accentu- (emphasis ground includes awas witness he or she in the Guideline’s Background ated wit- (because role central within that “the conduct commentary recognizing itself) system serve nesses frequently part guideline by this covered the adminis- impede or to hinder the intent for an punishment to avoid an effort tration has committed defendant offense escape pun- person to assist another onto to festoon effort does Nor That Id. an offense.” ishment Guideline found element the intent “fre- covered conduct requirement an across-the-board to thwart in an effort quently” done investiga- judicial proceeding pending investigation identifiable

Case Details

Case Name: United States v. Calvert

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 14, 2008

Citation: 511 F.3d 1237

Docket Number: 06-30643

Court Abbreviation: 9th Cir.