United States of America, Appellee, v. Zachary S. Fredette and Gordon M. Ritchie, Defendants-appellants, 15 F.3d 272 (2d Cir. 1994)

Case law addressing Application Note 6 of Sec. 3C1.1 is scant. However, it is clear that the Sentencing Commission designed this provision to eliminate the possibility that a defendant could be convicted and sentenced for an obstruction-related offense and then be subject to an enhancement for the same base offense, a situation referred to as "double counting." United States v. Agoro, 996 F.2d 1288, 1293 (1st Cir. 1993); United States v. Bell, 953 F.2d 6, 7 n. 1 (1st Cir. 1992).

In the present case there is no danger of double counting. Although the offense of conviction at issue is undoubtedly obstruction-related, defendants acted in an effort to further obstruct the investigation and prosecution of their respective cases. After committing the obstruction-related offense of beating McCormick, defendants concocted a false affidavit stating that Fredette was solely responsible and had been provoked. Because the defendants acted to further obstruct justice, there is no risk of double counting under the circumstances.

The issue therefore evolves to whether a significant attempt to further obstruct justice constitutes a "significant further obstruction" under Application Note 6. "Obstruction" as used in Application Note 6 "is captured by the language of the guideline itself, which speaks of willful attempts to obstruct." Agoro, 996 F.2d at 1293 (emphasis added); cf. United States v. Stevenson, 6 F.3d 1262, 1269 (7th Cir. 1993) (involving obstructive conduct; holding, without mention of Application Note 6, that "no finding of actual prejudice to the government is required."). This interpretation fosters the essential purpose of Application Note 6, namely the need to avoid double counting. It also squares the language of Application Note 6 with the express language of Sec. 3C1.1 which targets attempts at obstruction whether or not they are successful.

There is nothing in Application Note 6 that even hints of the need to differentiate between obstruction-related offenses and other offenses, unless there is a threat of double counting. In fact, Application Note 6 provides an example that clearly covers significant attempts to further obstruct justice. According to Application Note 6, an enhancement is appropriate where, for example, "the defendant threatened a witness during the course of the prosecution for the obstruction offense." Under this scenario, it is conceivable that a witness would testify truthfully despite being threatened by the defendant. If the witness does testify truthfully, the defendant will have attempted to obstruct justice but failed to do so. The example in Application Note 6 buttresses our conclusion that, irrespective of whether the base offense is obstruction-related, Sec. 3C1.1 applies to significant attempts to further obstruct justice.

Defendants propose an analogy between Application Note 4 and Application Note 6. They argue that because the application notes are similar, interpretations of Application Note 4 are equally applicable to the instant case. For example, the defendants rely on United States v. Williams, 952 F.2d 1504, 1516 (6th Cir. 1991), where the court held that under Application Note 4(b) a false statement not made under oath must have "succeeded in significantly impeding the investigation."

The basic flaw in defendants' argument is that there are no pertinent similarities between Application Note 4 and Application Note 6. For that reason it makes little sense to impart interpretations of Note 4 to the present circumstances. "Application Note 4 sets forth examples of less serious forms of conduct to which [an obstruction] enhancement is not intended to apply." U.S.S.G. Sec. 3C1.1, Application Note 2 (emphasis added). Because these forms of conduct are "less serious" it is understandable that courts have held that to warrant enhancement a defendant must have successfully obstructed justice. See, e.g., Williams, 952 F.2d at 1516.

In addition, the two provisions of Note 4 upon which defendants rely contain language expressly requiring that defendant's obstructive act actually hinder the government's investigation or prosecution. Subdivision (a) of Note 4 states that providing a false name or identification document upon arrest will not ordinarily warrant an obstruction of justice enhancement "except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense." U.S.S.G. Sec. 3C1.1, Application Note 4(a). Subdivision (b) similarly provides that making false statements, not under oath, to law enforcement officers will not subject a defendant to an obstruction of justice enhancement unless the statement "significantly obstructed or impeded the official investigation or prosecution of the instant offense." Id. Application Note 4(b).

Application Note 6 does not contain language requiring an actual successful effect. Its text simply refers to cases where a "significant further obstruction occur [s]." The Note does not specify that the obstructive act must "actually result [ ] in a significant hindrance" or that the act must "significantly obstruct [ ] or impede [ ] the official investigation or prosecution." Moreover, Note 6 does not address the type of less serious obstructive conduct addressed by Note 4. The purpose of Note 6 is to prohibit double counting when the base offense level at issue is obstruction related. However, Note 6 permits an obstruction enhancement where a more serious obstructive act, such as threatening a witness, occurs. Because of the difference in subject matter and language between Application Notes 4 and 6, defendants' reliance on cases interpreting Note 4 is misplaced.

We conclude that Application Note 6 applies to cases in which a defendant attempts to further obstruct justice, provided that the obstructive conduct is significant and there is no risk of double counting. Regardless of whether the defendants in this case were successful in their efforts to obstruct justice, the fact remains that they used a false affidavit in an effort to derail the investigation and prosecution of their respective cases. The mere fact that this case involves an obstruction-related offense should not shield the defendants from the clear language of Sec. 3C1.1, particularly since there is no threat of double counting.

Defendant Ritchie also contends that the district court improperly refused to grant a sentence reduction for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1. This claim is without merit.

Pursuant to Sec. 3E1.1 a district court may decrease the offense level " [i]f the defendant clearly demonstrates acceptance of responsibility for his offense." A defendant who pleads guilty is not automatically entitled to an adjustment for acceptance of responsibility. U.S.S.G. Sec. 3E1.1, Application Note 3. Further, a reviewing court will not disturb a district court's factual findings under Sec. 3E1.1 unless they are without foundation. United States v. Irabor, 894 F.2d 554, 557 (2d Cir. 1990).

In this case the district court properly refused to make a downward adjustment for acceptance of responsibility. The fact that defendant attempted to or succeeded in further obstructing the investigation and prosecution of his case indicates that he did not accept responsibility for his offense. U.S.S.G. Sec. 3E1.1, Application Note 4; Irabor, 894 F.2d at 557. The district court's decision not to depart downward for acceptance of responsibility was not without foundation.

Defendant Ritchie's final claim on appeal is that his prior convictions for burglary were not "crimes of violence" under U.S.S.G. Sec. 4B1.1. According to defendant, the district court improperly considered these convictions in concluding that he was a career offender.

Pursuant to U.S.S.G. Sec. 4B1.1, " [a] defendant is a career offender if ... the instant offense of conviction is a felony that is ... a crime of violence ... and ... the defendant has at least two prior felony convictions of ... a crime of violence." In the present case the district court applied Sec. 4B1.1 on the basis of defendant's prior convictions for (1) assault and robbery and (2) burglary. Defendant does not dispute that his prior conviction for assault and robbery is a crime of violence. The remaining issue, which defendant Ritchie does dispute, is whether his convictions for burglary are violent crimes for purposes of the career offender provision.

Section 4B1.2(1) defines "crime of violence" as "any offense under federal or state law punishable by imprisonment for a term exceeding one year that ... is burglary of a dwelling." Burglary of a dwelling is an inherently violent crime for purposes of the career offender provision. United States v. Telesco, 962 F.2d 165, 166 (2d Cir. 1992); cf. Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 2160, 109 L. Ed. 2d 607 (1990); When a crime is designated a crime of violence under Sec. 4B1.2 the district court must accept the designation without scrutinizing the conduct underlying the prior conviction. Telesco, 962 F.2d at 166.

In the present case defendant's prior burglary convictions involved dwellings. These convictions clearly fall within the aegis of "crime of violence." Under the Guidelines the district court was not permitted to assess the conduct underlying the convictions. Defendant's criminal history, including the convictions for burglary of a dwelling, warranted career offender status. U.S.S.G. Sec. 4B1.1.

Defendant notes that Vt.Stat. tit. 13, Sec. 1201 (burglary in the nighttime) covers burglaries other than the burglary of a dwelling, i.e., burglaries involving courthouses, schools and the like. In the defendant's view, the breadth of the statute warrants a district court examination of the conduct underlying his prior burglary convictions. However, defendant does not assert that his prior convictions involved these alternative forms of burglary. Rather, the pertinent language of the statute is burglary of a dwelling in the nighttime. Regardless of the other proscriptions under the statute, this case involves the burglary of a dwelling, an inherently violent crime under U.S.S.G. Secs. 4B1.1 and 4B1.2.

Defendant also attaches significance to the fact that his prior burglary convictions involved "seasonal dwellings"¹  as opposed to "dwellings." This is yet another attempt by the defendant to engage this court in a review of the conduct underlying the burglaries at issue. It may be true that in the off-season a seasonal dwelling is less likely to be occupied than a permanent residence. This distinction, however, is of no moment. Under Sec. 4B1.2 burglary of a dwelling is per se a crime of violence. This designation obviates the need for a district court to consider the likelihood of occupancy at the time of the burglary. United States v. Raynor, 939 F.2d 191, 195-97 (4th Cir. 1991) (burglary of unoccupied house); United States v. Brunson, 915 F.2d 392, 393 (8th Cir. 1990) (per curiam) (burglary of unoccupied dwellings), cert. denied, 498 U.S. 1106, 111 S. Ct. 1011, 112 L. Ed. 2d 1093 (1991). " [F]or purposes of determining career offender status under the Guidelines, there is no such thing as a ... non-violent burglary of a dwelling." Telesco, 962 F.2d at 166.

For the reasons set forth, the judgments of conviction and the sentences are affirmed.