US v. Carl Cutro, No. 11-4486 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4486 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARL CUTRO, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, Senior District Judge. (3:10-cr-00034-nkm-1) Submitted: September 8, 2011 Decided: December 20, 2011 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY, Charlottesville, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Roanoke, Virginia; Ronald M. Huber, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Carl enhancement Cutro and challenges a denial responsibility reduction assault government on a both a two-level of his of a two-level sentence informant information leading to his arrest. obstruction acceptance stemming Cutro from believed of his provided For the reasons that follow, we affirm. I. A. During the summer of 2010, Cutro was under investigation for theft of guns and merchandise from a Greene County, Virginia pawnshop. At the same time, Keith Marks--a friend of Cutro s--was cooperating with a local drug task force, serving as a confidential informant and making undercover buys. On August 31, 2010, Cutro was arrested and charged with being a felon in possession of a firearm. After his arrest, Cutro admitted to his involvement in various gun thefts. During questioning, Cutro was asked about certain shotguns that he and Marks had attempted to sell. led Cutro to conclude that Marks had been sawed-off The question cooperating with authorities. On September 27, 2010, Cutro pleaded guilty to three charges: being a felon in possession of a firearm, in violation 2 of 18 U.S.C. § 922(g)(1) (Count One); the theft of firearms from a Federal Firearms Licensee, in violation of 18 U.S.C. § 922(u) (Count Two); and the interstate transportation of stolen merchandise, in violation of 18 U.S.C. § 2314 (Count Three). While awaiting sentencing, Cutro was confined at the Central Virginia where Regional Marks Marks s was Jail also cellblock in the being and Western held. assault District Cutro him. was of able Marks Virginia, to enter later told investigators that during the assault, Cutro repeatedly said, You had better not testify against me. S.J.A. 107. When investigators subsequently interviewed Cutro he admitted that he gained access to Marks s cellblock by falsely telling a jail guard that he belonged there. Cutro also admitted that he struck Marks, causing him to fall to the ground, and continued to assault Marks until help arrived. On November 10, 2010, a federal grand jury returned a two-count indictment, charging Cutro with causing bodily injury to Marks with the intent to retaliate against him for information he provided to law enforcement, in violation of 18 U.S.C. 1513(b)(2) (Count One); and assault with the intent to influence, delay, and prevent testimony of Marks in an official proceeding, in violation of 1512(a)(2)(A) (Count Two). On March 7, 2011, Cutro pleaded guilty to Count One in exchange for the dismissal of Count Two. 3 The plea agreement provided that Cutro would be incarcerated for 24 months on Count One. B. On April 18, 2011, a combined sentencing hearing was held before the district court where Cutro was to be sentenced on the original conviction. determined firearms convictions and the retaliation For the firearms convictions, the district court Cutro s criminal history calculated his offense level as 24. category to be IV and This offense level included a two-level enhancement for obstruction of justice for Cutro s attack on Marks. denied a Also as a result of the attack, Cutro was reduction responsibility. in his Cutro s offense sentencing level for guidelines acceptance range for of the firearms convictions was between 77 and 96 months imprisonment. The district court sentenced Cutro to 84 months imprisonment on the firearms convictions. For the retaliation conviction, Cutro was sentenced to 24 months incarceration, pursuant to the plea agreement, to run consecutively with the sentence This appeal followed. 4 on the firearms convictions. II. The issues before us on appeal are whether the district court erred in imposing a two-level enhancement for obstruction of justice and denying Cutro a two-level adjustment for acceptance of responsibility level for the firearms convictions. in calculating his offense We consider each issue in turn. A. We first consider Cutro s argument that the district court erred in imposing a two-level enhancement for obstruction of justice in calculating his guidelines range for the firearms conviction. whether The district particular conduct court s ultimate constitutes determination obstruction of of justice pursuant to U.S.S.G. § 3C1.1 is a legal question we review de novo. United States v. Saintil, 910 F.2d 1231, 1232 (4th Cir. 1990). We review the findings for clear error. 213, 217 (4th Cir. district court s underlying factual United States v. Daughtrey, 874 F.2d 1989). However, where, as here, the defendant failed to object to the enhancement in the district court, this court reviews for plain error. United States v. Wells, 163 F.3d 889, 900 (4th Cir. 1998). Cutro challenges the two-level increase because he had already pleaded guilty on the firearms charges--all the charges 5 for which Marks could have been a witness. Because Marks could no longer be a witness against him, Curtro argues, the assault did not obstruct justice. A defendant may receive a two-point enhancement to his offense level if he obstructs or impedes justice pursuant to U.S.S.G § 3C1.1, which states: If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant s offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the level by 2 levels. Application Note 3 of § 3C1.1 states: Obstructive conduct can vary widely in nature. . . . Application Note 4 sets forth examples of the types of conduct to which this adjustment is intended to apply. Application Note 5 sets forth examples of less serious forms of conduct to which this enhancement is not intended to apply. . . . Although the conduct to which this adjustment applies is not subject to precise definition, comparison of the examples set forth in Application Notes 4 and 5 should assist the court in determining whether application of this adjustment is warranted in a particular case. The examples in note 4 include threatening, intimidating, or otherwise attempting unlawfully to do influencing so, and a . other . . witness. conduct . . or prohibited by obstruction of justice provisions under Title 18, United States Code (e.g., 18 U.S.C. §§ 1510, 1511). 6 U.S.S.G. § 3C1.1 n.4(A), (I) (2011). The examples in note 5 consist of various types of false statements and fleeing from arrest. Comparing enhancement applies the to examples the of examples conduct of to conduct to which which the the enhancement does not apply, we conclude that Cutro s assault on Marks subjects him to enhancement under § 3C1.1. First, the evidence shows that Cutro assaulted Marks because Marks was a potential witness against him. 1 attempt to unlawfully influence This behavior constitutes an a witness. Second, for the assualt on Marks, Cutro pleaded guilty to violating 18 U.S.C. 1513--retaliating against a witness--one of the obstruction of justice provisions referred to in note 4. 2 Accordingly, we find 1 It is of no moment that the assault took place after Cutro was convicted of the crimes for which Marks could be a witness to. Indeed, the guidelines specifically contemplate that the enhancement would be applied to activity taking place after 3C1.1 (covering activity that conviction. See U.S.S.G. § relates to the investigation, prosecution, or sentencing (emphasis added)). In addition, there is always the possibility that Marks could be called to testify later should Cutro s convictions be vacated. Cutro appears to have considered such a possibility when he said to Marks, while striking him, You had better not testify against me. 2 In making a similar argument, the government quotes the guidelines as stating that obstruction of justice includes conduct prohibited by 18 U.S.C. §§ 1501-1516. Appellee s Br. 10. We could, at first, not locate the quoted language in § 3C1.1. After some investigation, we discovered why: the quoted language was removed from the guidelines by amendment in 1997. See U.S.S.G. Appendix C n.566. We take this opportunity to remind the government of the importance of accurate citation. 7 no error in the district court s application of the obstruction of justice enhancement. B. We next consider Cutro s argument that the district court committed procedural error by refusing to grant Cutro a two-level reduction for acceptance of responsibility in calculating his guidelines range for the firearm convictions. This challenge is subject to de novo review. See United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009). Cutro procedural argues error simultaneously by that the concluding imposing both that it acceptance obstruction of justice adjustments. merit. district court was of committed precluded responsibility from and This argument is without Although it would have been error for the district court to find itself so precluded--see U.S.S.G. § 3E1.1(a) n.4; United States v. Hargrove, 478 F.3d 195, 202 (4th Cir. 2007)--Cutro points to nothing in the record--nor do we find anything on independent review--to suggest that the district court came to any such conclusion. Accordingly, we affirm the district court s denial of an acceptance of responsibility adjustment. 8 III. For the foregoing reasons, the judgment of the district court is AFFIRMED. 9

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