*1 partial summary disposition Cafcomp, Caf- III. Conclusion comp sought dismissal of both reasons, foregoing For the we AFFIRM. ERISA counterclaims defenses. There- fore, appears it that ARN would be unable of contract
defend the breach claim the Cafcomp
ground fiduciary violated its proceed.
duties the arbitration were to stay proceeding,
Without a the arbitration harmed, irreparably
ARN will be deprived
will be of its main Addi- defense. tionally, panel if the arbitration resolves America, UNITED STATES breach of contract matter before the federal Plaintiff-Appellee, claims, courts 'will decide the ERISA ARN harmed, irreparably be will because it be duties, acting contrary fiduciary to its own (95-6402) Jeffery Jeffery WALKER assuming ERISA claims are its meritorious. (95-6404), Defendants- Cafcomp asserts that ARN can ask the arbi- Appellants. panel open proceedings tration to hold pending resolution the ERISA claims 95-6402, Nos. court; however, panel, federal has al- ready a request from ARN. We refused such Appeals, Court conclude that the District Court not err Sixth Circuit.
in finding Cafcomp irreparably would be Argued and Submitted Dec. preliminary injunction harmed unless a issued. July Decided
c. Harm to Others Public Interest
Cafcomp prelimi- does contend that a
nary injunction harm will it or Caf- others.
comp argue public does interest is stay,
better no served because of the See, policy favoring e.g.,
federal arbitration. Reynolds
Dean Byrd, Witter Inc. v. 470 U.S. S.Ct. strong also ERISA embodies a policy favoring judicial
federal federal resolu- disputes
tion of the kind of involved Indeed,
case. this court’s decision in Gener- Buha,
al Motors Corp. v.
Cir.1980), recognizes an overriding federal adjudication
interest in federal of ERISA Buha,
claims. we held that clear- ERISA
ly right creates a or remedy federal enforce-
able in a equity, federal court of scope
ERISA could its be intended
only by stay a state proceeding.
Id. at Cafcomp itself wanted the
ERISA claims determined federal court.
ARN trying accomplish just that. We
conclude that District Court did not err
in finding preliminary injunction that a would
not harm public others and would be
interest. *2 Sullivan, Atty. (argued
Gregg L. Asst. U.S. briefed), TN, Chattanooga, and Plaintiff- Appellee. MO, se, Walker,
Jeffery Springfield, pro briefed), (argued William H. Ortwein and Associates, TN, Chattanooga, Ortwein & Defendant-Appellant in No. (briefed), Perry Piper H. Federal Defend- Tennessee, Inc., Chat- er Services Eastern TN, Defendant-Appellant in No. tanooga, WELLFORD, RYAN, and Before: SILER, Judges. Circuit J., SILER, opinion delivered WELLFORD, J., joined. in which 407-409), RYAN, separate a (pp. J. delivered opinion. dissenting OPINION SILER, Judge. Jeffery appeals sen-
Defendant on following conviction entered a tence guilty with intent conspiracy possess cocaine cocaine base distribute carrying firearm drug trafficicing crime. Defen- relation Jeffery appeals his sentence dant jury verdicts of conviction entered possess conspiracy to with intent pos- cocaine and cocaine base and distribute cocaine and co- and distribution of session opinion we address base. In this caine court erred issue whether district increase at assessing two-level justice. All for obstruction appeal are ad- other issues raised appendix to this unpublished dressed opinion.
4Q5 I. At Walker’s sentencing hearing, the court given perjurious found that Walker had testi- Based on information received from con- mony during Specifically, Watkins’s trial. informant, narcotics officers in fidential the district court found that he lied when Chattanooga, Tennessee a search obtained nothing testified that Watkins had to do with *3 apartment. warrant Walker’s execut- drugs the and when he testified that he warrant, a ing the the officers made forced dropped gun his police before the on fired apartment entry through into the a kitchen him. Accordingly, the gave court Walker a entering, they door. After observed both justice. two-level increase for obstruction of living Watkins and Walker in the room. Walker was sentenced to a total of 270 standing Walker was next to a table where by months’ incarceration years’ followed five Watkins was seated. The officers instructed supervised release. Watkins and Walker not to move. up pistol picked a Walker semiautomatic II. from the table where Watkins was seated. guidelines, Under sentencing the gun. the drop The officers instructed him defendant’s offense level can be increased Instead, officers, pointed gun he the at the two “willfully levels obstruct fire, opened shooting approxi- then him ed or impeded, or mately fifteen times. the administration of investigation, prosecution, the sentencing Later, Walker, Watkins, Perry MeCro- Sentencing of the instant offense.” U.S. bey drug were indicted on and firearms § 3C1.1 Guidelines Manual 1995, April pleaded charges. On Walker “[Cjommitting perjury” ... is conduct “to guilty, pursuant 11 agreement, Rule Id., which this applies.” enhancement com charged counts one and five. Count one the (n. 3). clearly ment. court employs This conspiracy to defendants with manufacture reviewing erroneous standard a district possess with intent to distribute cocaine court’s factual determination that the defen cocaine of 21 base violation U.S.C. dant’s conduct warrants an obstruction of 841(a)(1) §§ and 846 and 18 U.S.C. justice enhancement. United States v. Za charged Count five the defendants with jac, Cir.), cert. de carrying gun during drug trafficking —nied, -, U.S. S.Ct. 924(c). offense in violation 18 U.S.C. As (1995); United States v. part bargain, Mahaf (6th Cir.1995). fey, 53 F.3d Issues agreed drop charges against the other involving interpretation Sentencing to, agreed among Walker and Walker other questions legal Guidelines are which re we completely things, forthright “be Smith, view novo. de truthfully any ... at trial.” Prior sentencing, Walker’s argues was the enhancement trial, At went Watkins’s erroneous because it was based evidence do with anything denied Watkins had sentencing outside of the record of his hear- drug activity. He claimed Watkins was Furthermore, ing. he maintains that only at apartment boxing to watch a alleged perjured testimony regarding his at match and that Watkins seated gun Finally, dropping the was not material. drugs table with he that, “testimony ... contends because his trying gym on some shoes. Walker also was in trial of a co-defendant and not acknowledged picked up gun that he indicted, offense for which the defendant entered, police from the table when his was error the Court to increase dropped he claimed that he when the sentence two levels.” officers identified themselves. He main- argument tained that the officers fired on him after he that the Walker’s enhance Despite dropped gun. had rec this testimo- ment was based on evidence outside the ny, guilty The disingenuous Watkins was found on several ord is and without merit. hearing clearly counts. indi- record of gave thority. the district court and the defense counsel cates Robyn Strang a section 3C1.1 enhancement transcripts Walker’s had government all trial, testimony at perjurious his son’s trial. Further- Watkins’s from Robyn already the fact report despite more, investigation presentence emanating pleaded to some counts the recom- upon which grounds indicated Robyn conspiracy involving both from a The was based. two mended Circuit, narrowly con son. Seventh transcript perjured statements were language, struing the “instant offense” re Thus, therefore, and, the record. within Robyn’s “testi versed. court noted findings proper record court made lower truthful, but it was mony was less than error. and did not commit in the trial of a codefendant.” Id. Also, correctly the district *4 Essentially, the court articulated a virtual testimony regarding perjured found impose per rule that a court cannot an se Spe dropping was material. justice obstruction of “enhancement de that found cifically, district court untruthfully who in the trial fendant testified in perjured testimony material that tri “was of a Id. codefendant.” credibility on the al because ... it reflected bar, In the case at Walker and code had testified that police of the officers who fendant, Watkins, charged conspir were they happened and what saw trial to what as acy aiding together, abetting one anoth apartment.” Material information is that er, joining together commission of believed, that, if tend to would “information gave false substantive offenses. Walker ex under determina influence or affect issue culpatory testimony in the trial of his code 382, v. 1 F.3d tion.” United States fendant. The defendant codefendant (6th 3C1.1, Cir.1993); § see com USSG inextricably were related criminal of (n.5). trial, government’s At ment. charged against the cir fenses both. Under part, on evidence premised, large cumstances, the district court could conclude pursuant a search warrant executed seized to obstructed, “willfully that or at defendant jury Walk Had the believed the officers. obstruct, tempted to the administration of have testimony, er’s this would discredited justice during prosecution of the ‘instant certainly could have influ the officers and ” offense,’ applicable language to use Clearly, case. enced the outcome conclusion, contrary 3C1.1. This to section material. view, supported United dissent’s (9th v. 9 F.3d Cir. Finally, consider whether a States we must 1993): may have his sentence enhanced defendant perjury
under USSG 3C1.1 for
committed
argues
Acuna
that even
his trial testi
of a
false,
the trial
codefendant.
it
not an
mony was
obstruction
requires that
that
3C1.1
*5
gation
in
that resulted
and convic-
own,
to his
as
such
that of a codefendant.
Nesbitt,
Thus, according
tion.
the district
err in granting
court did not
the obstruction
of enhancement. conclude, Accordingly, we based on this recognize We the statement in United authority precedent, and that the district (6th Horry, Cir.1995), 49 F.3d 1178 granted court properly obstruc- that solely “the obstruction must occur with justice tion of enhancement. respect to offense of conviction.” Id. at AFFIRMED. however, Horry, In the court de- termined that the defendant’s obstructive RYAN, Judge, dissenting. conduct was “unrelated to her conviction for sentencing guidelines, Under the a court fraud,” husband, wire id. and her may sentencing enhance a defendant’s of- whom the defendant acted in had points fense level two the defendant “[i]f name, any way false was “involved willfully impeded, or obstructed Horry, husband, the fraud.” Id. not her to obstruct or of administration We, charge. was involved wire fraud justice prosecution, investigation, therefore, Horry distinguishable, find of sentencing the instance offense.” note that Watkins and Walker this case 3(b) Application U.S.S.G. 3C1.1. note co-defendants, were and were associated and provision justice indicates that obstruction of involved the “offense of conviction.”2 under guidelines “committing, includes Clearly, this circuit has a broad suborning, attempting perjury.” to suborn reading to the language. “instant offense” (n.3(b)). Id. at comment. adopted ap- Other circuits have likewise this proach. interpreted We 9 have the term “instant of- See F.3d at Even a fense” to of conviction. defendant’s refusal to mean offense codefend- coconspirator’s Horry, ant’s or has United 49 1180- trial been found States v. F.3d Additionally, warrant the USSG 3C1.1 81 we have held enhancement. Williams, See United States v. 922 F.2d the obstructive conduct need not be enhancement); Nesbitt, justice similarly distinguished obstruction of United this court Mizell, Horry (Table), holding its where the States v. limited to facts 1996 WL justice ... (6th 1996) defendant's of was whol- "obstruction Sept. (holding Cir. ly unrelated her offense of conviction.” justice grant- obstruction of enhancement can be F.3d at 169. Because defendant's obstruction of gives perjured testimony ed where a defendant conviction, germane offense case). a civil Horry this court found that control. for wire fraud. lated to her conviction to the offense of convic- directly connected Nothing in the shows that her hus- to and occurred record long it is related tion as any way fraud. prosecution of the was involved investigation or band during the Therefore, en- offense, for its commission. this cannot be basis for or the Crousore, hancing her sentence for obstruction 384-85 States v. Cir.1993). (6th justiee[.] (emphasis Horry, 49 at 1180-81 F.3d convicted distinguish majority attempts to marijuana being a and of possession of here, Horry, by pointing out that unlike possession of a firearm. The district felon Watkins “were co-defen- both Walker and imposed en- an obstruction dants, to- associated and involved were had finding the defendant hancement after ” But conviction.’ gether the ‘offense of by denying, at his perjured himself detention battle; critically, the only half the sentencing hearing, hearing at his and later per- majority explain how Walker’s fails investigating he had officer told jured obstructed marijuana, which he had traded spect to his own offense of conviction. was not offense which appeal, we held that was convicted. On support from also seeks “instant offense” offense term denoted Nesbitt, States v. conviction, Cir.1996). There, a had been codefendant “instant offense” fell within the cocaine, conspiracy convicted of to distribute “during investigation, occurred money ap- laundering. The lower court sentencing” of what ultimate- prosecution, or plied the obstruction of conviction. Id. at ly became the offense of determining that after the codefendant is not 385. We held: test whether “[T]he pro- perjured himself the civil forfeiture the actual crime false statement about ceeding to count of his that was related *6 it was made the charged, but whether (and plea- of indictment not the offense sentencing of investigation, prosecution, or 2.) conviction, bargained appeal, count On we Thus, focus the ‘instant offense.’” Id. our Horry, distinguished our decision of earlier relationship the between the defen- was on Crousore, found that the eode- embraced criminal dant’s obstructive conduct perjured testimony was be- related fendant’s ultimately resulting in his conduct conviction. “impeded government’s overall cause perjury committed at (em- investigation against Id. at 169 him.” hearing was relevant defendant’s detention phasis Specifically, we “[The] held: perjury And the risk that he would flee. was related to the ‘instant offence’ conduct was, course, committed at his of impede it was intended to intended to affect the sentence he would eventually investigation that re- point receive. is that both efforts plea bargain [the codefendant’s] sulted were relevant defen- conviction.” Id. Nesbitt does stand dant’s offense of conviction. perjured testimony at a proposition alone, trial, standing warrants codefendant’s Horry, was convicted application of the obstruction enhancement. appeal fraud. she claimed that wire On must, itself, Instead, mate- be enhancing her court sentence lower erred to the offense rial and relevant for obstruction of because she defendant’s conviction. writing to hus- name when her used false band, prison, in order to assist all that have addressed Not the circuits by police. As avoiding detection him proper as to agreement issue are result, the husband able to defendant’s Compare question. resolution of the fugitive. We held: become federal Cir.1993) Acuna, v. States F.3d solely occur obstruction must
[T]he
Bernaugh,
majority, in support, and the cases cited In re CENTURY OFFSHORE MANAGE- any engaged veal that where a has CORPORATION, MENT Debtor. issue, it substantive has discussion RESOURCES, LTD.; Apache K.E. perjury found the to his related Corporation; Energy Nuevo offense of conviction. Company, Appellants, upon Acuna relies Tenth Circuit case v. upon Bernaugh, and United States Mor INCORPORATED; BMO FINANCIAL ales, F.2d Montreal; Century Bank of Offshore
Bemaugh court held that the enhancement Management Corporation, Appellees. applies attempts defendant “where a ob No. closely struct related own, such of a as that codefendant.” Ber Appeals, United States Court naugh, 861. Critically, 969 F.2d at the facts Sixth Circuit. of that case indicated defendant Argued Jan. plea hearing testified at his oum and lied about his eodefendant’s involvement July Decided underlying Id. at 862. The court crime.
found that his “an could have been
attempt his own im sentencing, affect
pairing inquiry the court’s Fed. under 11(f), obfuscating
R.Crim.P. his role
transaction, Significant and otherwise.” Id. discuss,
ly, the court
infers, perjury committing at a Similarly,
codefendant’s trial. the Morales discussion, without held that defen “a
dant’s co-conspirator’s refusal to immunity
trial after an order has been issued
constitutes an obstruction of under Morales,
section 3C1.1.” at 1331. *7 support, Morales refers to Eleventh opinion Williams, in United States v. (11th Cir.1991),
I conclude that the term “instant offense” perjured encompass testimony
does not where
codefendant’s trial does
not relate to the defendant’s offense con- joint
viction. I further conclude that mere
participation in the underlying “offense of not, more,
conviction” does without serve to
relate the defendant’s
and make it to the relevant
Consequently,
respectfully
I
dissent from
opinion.
notes
section
related
his “instant offense”
investigation,
“during
obstruction occur
falsely
he
testified
about his
because
prosecution,
sentencing of
instant
However,
of
coconspirators’ conduct.
section
(emphasis
Essentially, he
fense.”
applies
attempts
when
3C1.1
“a defendant
that,
already
he
maintains
closely
a case
related
five,
pleaded guilty
own,
to counts one and
he
as
of a
such
codefendant.”
justice by
not
obstructed
later
could
have
Bernaugh,
United States v.
committing perjury at
(10th Cir.1992);....
Watkins’s
words,
opines
perjury
other
later
clearly
The Sixth Circuit has
resolved
during the “instant
did not occur
offense.”
published opinions
There are no
issue.
precisely
that are
States v.
the Sixth Circuit
cites United
(7th
1996),
However,
appears
circuit
persuasive
point.1
au
that this
Cir.
(Table),
(6th
unpublished opinions,