United States v. Willie GreerUnited States v. Willie Greer
“For the judge to tell a jury that a case must be decided is ... not only coercive in nature but is misleading in fact. It precludes the right of a defendant to rely on the possibility of disagreement by the jury.” Id.
Contrary to the Government‘s argument, this coercive instruction in the present case was not “cured” by the subsequent Allen charges. Rather, the instruction, followed by two Allen charges given in such close proximity to each other, and accompanied by the district court‘s additions of “listen to one another both carefully and respectfully” and “as mature adults, every one of you has had a disagreement with someone and has been able to work through it at some point in your lives,” very likely compounded the coercion. The latter instruction, particularly, by asserting a likeness between a juror‘s solemn responsibilities and the ordinary process of resolving discord and reaching agreement, in everyday life, arguably mischaracterized the legal and constitutional import of a jury‘s deliberations. The district court‘s repeated pressing of the jury to continue deliberations exceeded “the limit[] beyond which a trial court should not venture in urging a jury to reach a verdict.” Scott, 547 F.2d at 336-37.
It is doubtless a task of some difficulty for a court, on appellate review, to weigh the prejudicial impact of a variation of the approved Allen charge. See id. at 337 (citing United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971)). Nonetheless, the evidence in this case makes it clear that the cumulative effect of the district court‘s instructions and Allen charges was coercive and likely forced the jury to believe that it was obligated to return a unanimous verdict. In my view, the district court‘s error is plain, and I would reverse and remand on this issue.
III.
The history of racial bias in the courtroom is not only a stain on our shared past; its corrosive effects persist to this day. The enduring shadow of bias also dims public confidence in the fairness of the courts. The majority‘s decision represents a step backwards from the strides we have made towards eradicating this disgraceful legacy from our criminal justice system. For the reasons set forth above, I differ with the majority with regard to the issues of racial animus within the jury and to the Allen charges, which, operating in a mutually reinforcing manner, exerted pressure on the two black jurors who were not prepared to vote for a guilty verdict. In combination with the racial animus contained in the jury foreperson‘s remarks, these circumstances raise serious doubts about the fairness and impartiality of the jury‘s decision. With regard to the remaining issues in this case, I concur with the majority.
COUNSEL ARGUED: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. Christopher C. Wang, UNITED STATES DEPARTMENT
Before: KEITH, BATCHELDER, and SUTTON, Circuit Judges.
OPINION
ALICE M. BATCHELDER, Circuit Judge.
In this appeal from his criminal conviction for lying to an investigator, the defendant argues that the district court erred in calculating his sentence by improperly applying a cross-reference to the Accessory After the Fact provision,
I.
Willie Greer was a Hamilton County (Tenn.) Deputy Sheriff. In a late-night traffic stop, he pulled over a female driver who had been drinking, had no driver‘s license, and had an outstanding arrest warrant. Greer ran her license but did not arrest her. Instead, he had her drive to a secluded location where he had her perform oral sex on him. After Greer ejaculated he gave the woman a fast-food cup, presumably to spit into, and allowed her to drive away.
Later that day, the woman filed charges with the Sheriff‘s Department, alleging that an officer had sexually assaulted her. A detective interviewed Greer that same day. Greer knew the woman had reported a sexual assault, that he was the suspect in that assault, and that the investigation could lead to criminal charges. And Greer lied to the detective. Greer said that he had run the woman‘s license plate but had no personal interaction with her, and could not even identify her. In truth, Greer had initiated a traffic stop and had interacted with her plenty.
Later during the same interview, Greer made up a new version of events. He said that he had not activated his police lights or detained her but, rather, she had approached him with the sexual proposition and that he had begun but had discontinued the act. Greer said he had been masturbating before she approached him and had ejaculated into the fast-food cup. But in truth, as Greer eventually admitted, he had activated his police lights to initiate the stop, had approached and detained the woman, and had “had [her] perform oral sex on him“; she had not sexually propositioned Greer, though whether he had been masturbating was not resolved. R. 24 at 3, ¶ 4 (Plea Agreement, admitted facts). Greer acknowledged that investigators recovered his semen from the woman‘s clothing and his DNA from the fast-food cup that he had given her.
The county prosecutor charged Greer with aggravated rape and official misconduct under state law, but dismissed those charges following a federal indictment for aggravated sexual abuse, witness tampering (i.e., making false statements to the detective), and possession of a gun during a crime of violence. Eventually the parties entered a plea agreement in which Greer admitted the foregoing facts and pleaded guilty to witness tampering in violation of
The presentence report (PSR) presented the relevant Sentencing Guidelines and the
Base Offense Level: The guideline for
18 U.S.C. § 1512(b)(3) offenses is found inUSSG § 2J1.2 of the guidelines. That section provides that an offense involving witness tampering (providing false information) has a base offense level of 14.USSG § 2J1.2(a) .However,
USSG § 2J1.2(c) provides for a Cross Reference toUSSG § 2X3.1 , Accessory After the Fact, in respect to the criminal offense under investigation. In this case, the criminal offense under investigation was a Civil Rights Violation (USSG § 2H1.1 ).
USSG § 2H1.1(a)(1) establishes the base offense level to be the offense level from the guideline applicable to any underlying offense. In this case, the underlying offense of the civil rights violation being investigated was aggravated rape. The base offense level as determined underUSSG § 2A3.1(a)(2) is 30.
USSG § 2X3.1(a)(1) provides that the base offense level should be 6 levels lower than the offense level for the underlying offense, 30 minus 6 establishes a base offense level of 24.Specific Offense Characteristics: After the establishment of the base offense level pursuant to
USSG § 2X3.1 , the Special Offense Characteristic atUSSG § 2H1.1(b)(1) is applied if the defendant was a public official at the time of the offense, or the offense was committed under the color of law. + 6
PSR at ¶¶ 21-22. After subtracting three levels for acceptance of responsibility, the PSR‘s Total Offense Level was 27 (i.e., 24 + 6 - 3), which, coupling this with a criminal history category of I (score of zero), resulted in an advisory range of 70 to 87 months in prison. PSR at ¶ 55.
At the sentencing hearing, Greer objected to the cross reference to
Because the conduct covered by this guideline is frequently part of an effort to avoid punishment for an offense that the defendant has committed or to assist another person to escape punishment for an offense, a cross reference to § 2X3.1 (Accessory After the Fact) is provided. Use of this cross reference will provide an enhanced offense level when the obstruction is in respect to a particularly serious offense, whether such offense was committed by the defendant or another person.
The Court: But there‘s no dispute that this woman did come in, she did make a complaint that there had been a sexual assault committed against her; there is no dispute about that, is there?
Greer‘s Atty: There is no dispute that that allegation was made, that‘s correct.
The Court: And there is no dispute that that is in fact what was under investigation.
Greer‘s Atty: Yes, Your Honor.
The Court: Okay. The Court having considered the arguments of counsel [and] United States vs. Kimble, [305 F.3d 480 (6th Cir. 2002)], concludes that the presentence report is correct in using the cross references, that the cross referencing is
not only supported by the guidelines but it is actually required under the guidelines. So the Court will deny the defendant‘s objection to the presentence report based upon the cross references.
R. 53 at 12:5-20 (sentencing transcript).
Greer also moved for two downward departures. First, he claimed that this was “aberrant behavior” by him, warranting departure under
The district court agreed with the PSR‘s advisory range of 70 to 87 months, considered the
II.
A.
We review de novo the district court‘s interpretation and legal application of the Guidelines. United States v. Schock, 862 F.3d 563, 566-67 (6th Cir. 2017). Here the district court interpreted
Greer claims that the district court erred by applying
[S]ection 2X3.1‘s definition of ‘underlying offense’ does not by its terms encompass charges that did not result in convictions. Therefore, except to the extent that the charges on which [the defendant] was acquitted might fall within the scope of relevant conduct, they have no bearing on proper application of the Obstruction of Justice guideline in Shabazz‘s case.
Id. at 610 n.3; see also id. at 610 (repeating that
The State and district court read Kimble as holding that it is the crime investigated (and thus the scope of investigation obstructed) that controls, and that the prosecutor need neither obtain a conviction on the underlying offense nor even produce facts in support of it:
In fact, proof of the underlying offense is immaterial, since the point of the cross-reference is to punish more severely
obstruction of prosecutions with respect to more serious crimes. ... Kimble‘s claim that he was not actually an accessory after the fact to the homicide at issue here is not relevant, as it does not matter whether the defendant is actually guilty of the crime referenced in § 2X3.1 in order for the higher sentence recommendation to be imposed.
Kimble, 305 F.3d at 485-86 (relying on United States v. Arias, 253 F.3d 453, 459 (9th Cir. 2001), and citing Shabazz, 263 F.3d at 608) (quotation marks, editorial marks, and citations omitted).
In Arias, 253 F.3d at 459, the Ninth Circuit considered “whether the underlying offense whose prosecution is obstructed must be proved by a preponderance of the evidence (or any other measure) before applying § 2J1.2(c)(1),” and rejected such a requirement, explaining that:
[P]roof of the underlying offense is not material, because the point of the cross reference is to punish more severely (and to provide a greater disincentive for) perjury in, and obstruction of, prosecutions with respect to more serious crimes.
Other circuits have addressed the issue directly, and agree that the cross reference in
No court of which we are aware5 would permit inquiry into the sufficiency of the evidence on the underlying offense whose prosecution was obstructed. Id. (footnote, quotation marks, and certain citations omitted; paragraph break inserted).
Looking to Shabazz, 263 F.3d at 610-11, we concede that the cited language supports Greer‘s claim that that the
Khalid Shabazz had not been involved in the underlying crime in any way—he was merely an opportunist who approached a criminal defendant in the midst of trial, offering to sell him a favorable vote from a corrupt juror. Id. at 604. The underlying crime was part of a large organized-crime prosecution in which the defendant, Paul Corrado, was charged with conspiracy to commit murder, among other things. Id. After Shabazz was caught and pled to obstructing justice, the court applied
This appeal raises a question of first impression in the interpretation and application of U.S.S.G. § 2X3.1: whether the base offense level determined under that guideline by reference to the underlying
offense obstructed begins with the total offense level or the base offense level of that underlying offense. Put in the context of this case, the issue is whether the district court erred by calculating Shabazz‘s offense level based simply on Paul Corrado‘s total offense level, which included adjustments for multiple counts, role in the offense, and specific offense characteristics.
Id. at 608 (paragraph break inserted). We held, simply and succinctly, that the Guidelines direct “the sentencing court to apply the base offense level of the underlying offense obstructed plus any applicable specific offense characteristics that were known, or reasonably should have been known, by the defendant.” Id. (quoting
All that is to say that Shabazz stands for the rule that, in applying
Consequently, Shabazz must be limited to its core holding that the sentencing court applying
We return now to Greer‘s argument that, by its plain language, the Guidelines Commentary prohibits application of the cross reference because the State did not establish that he “[wa]s convicted,”
[T]he guidelines are the equivalent of legislative rules adopted by federal agencies ... [and the] commentary is akin to an agency‘s interpretation of its own legislative rules. ... [P]rovided an agency‘s interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.
Id. at 45; see also Beckles v. United States, 580 U.S. 256, 137 S.Ct. 886, 897 (2017) (Ginsburg, J., concurring) (explaining that the commentary is “authoritative,” pursuant to Stinson). Thus, for purposes of this analysis, if Greer‘s proffered interpretation was truly the Commission‘s intended interpretation, the question is whether such interpretation
We find it unlikely that the Guidelines intended that a defendant should avoid or minimize punishment for obstruction of a criminal investigation just because that obstruction was so successful that he prevented a conviction on the underlying crime, or because the obstruction was of an investigation for which, as it might turn out, there actually was no underlying crime. More likely, the Guidelines intended that the obstruction of a criminal investigation is punishable even if the prosecution is ultimately unsuccessful or even if the investigation ultimately reveals no underlying crime. Moreover, as we said in Kimble, 305 F.3d at 485-86, obstruction of the investigation of a more serious crime is correspondingly more serious than that of an investigation into a less serious crime and warrants more punishment. For example, obstructing a murder investigation is more serious than obstructing a trespassing investigation and warrants more severe punishment to discourage such obstruction, regardless of whether either investigation results in prosecution or conviction. Someone who obstructs a murder investigation risks severe punishment, even if he knows the suspect is innocent, because a murder investigation itself is a very serious thing and its obstruction cannot be tolerated.
This is to say that we find the proposed interpretation plainly erroneous and inconsistent with the Guidelines. In so concluding we also note that every other Circuit to consider this has also held that the State need not prove that the defendant committed the underlying crime, thus likewise rejecting such an interpretation. See United States v. Olsen, 519 F.3d 1096, 1105-06 (10th Cir. 2008); Arias, 253 F.3d at 461; Russell, 234 F.3d at 409-10; United States v. Suleiman, 208 F.3d 32, 38 (2d Cir. 2000); Dickerson, 114 F.3d at 468; United States v. Martinez, 106 F.3d 620, 622 (5th Cir. 1997); McQueen, 86 F.3d at 182-83.
We find no error in the district court‘s application of
B.
Ordinarily, we review the reasonableness of the sentence for an abuse of discretion and findings of fact for clear error. Schock, 862 F.3d at 566-67. If, however, a defendant fails to raise the claim at sentencing, then our review is for plain error. United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008). Greer argues that his sentence was substantively unreasonable because the district court improperly relied on unproven factual allegations concerning the female driver and placed too much weight on the deterrence factor.
Greer argues that the district court improperly relied on unfounded allegations, namely three facts that he claims were not proven by a preponderance of the evidence: (1) that the sex was an assault, (2) that the woman was intoxicated or smelled of alcohol, and (3) that Greer knew she had an outstanding arrest warrant. Because Greer did not raise these at sentencing, we would review for plain error, but this argument is so entirely unfounded that he cannot show any possible error.6 The sentencing transcript establishes that the district court sentenced Greer for his “[l]ying in an official investigation,” R. 53 at 43 (transcript); not because the sex was
Greer also argues that the district court failed to consider the
But, as the State points out, the court did consider the other
C.
Finally, Greer argues that he was entitled to a downward departure for “aberrant behavior” (
But “[t]he law in this circuit is clear that we have no jurisdiction to review a decision of a district court not to depart downward[,] unless the record shows that the district court was unaware of, or did not understand, its discretion to make such a departure.” United States v. Bazazpour, 690 F.3d 796, 804 (6th Cir. 2012) (quotation marks omitted). There is no indication in the record here that the district court felt constrained in the exercise of its discretion.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.