Thursday, June 22, 2006

An Expansive Reading of the Obstruction Enhancement

United States v. Riley, Docket No. 0-1585-cr (2d Cir. June 21, 2006) (Kearse, Miner, Cabranes): This decision upholds the imposition of a 2-level obstruction enhancement under U.S.S.G. § 3C1.1, even though the defendant's obstructive conduct appeared to have occurred before the Government began its investigation (and a fortiori its prosecution) of the defendant for the "instant offense of conviction," i.e., being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Section 3C1.1 requires, among other things, that the defendant's obstructive conduct occur "during the course of the investigation, prosecution, or sentencing of the instant offense of conviction." Here, the evidence (as recounted in the opinion) showed that while Riley clearly engaged in conduct that qualifies as obstructive (i.e., telling his girlfriend to hide and/or dispose of his guns), this occurred when no charge concerning his possession of firearms was pending or even being investigated.

The obstructive act occurred while Riley was in jail for making false statements to Government officials, and during an investigation into his drug trafficking and retaliating against witnesses. These charges were later dropped, however, and Riley pleaded guilty only to a § 922(g) count. No evidence showed that there was an on-going investigation or prosecution of this crime when Riley told his girlfriend to conceal / dispose of his guns.

The opinion tries to bridge this evidentiary gap in three ways, none of which is convincing. First, the Court points out the obstructive conduct occurred while an investigation into Riley's possible drug trafficking was in progress. The Court then states that "[i]t required no leap for the [district] court to infer that that investigation encompassed possible weapons possession, for we have taken judicial notice that, to substantial narcotics dealers, guns are 'tools of the trade.'" Op. 15.

This is a very slim reed on which to hang the enhancement. The Government introduced no evidence whatsoever that it was investigating Riley for "the instant offense of conviction" -- i.e., being a felon in possession of a gun -- when he asked his girlfriend to conceal the guns. To simply "infer" that the Government was in fact doing so, simply because guns often go with drugs, is nothing more than speculation.

Second, the Court points out that when Riley told his girlfriend to hide / dispose of his guns, he had been charged in an information with retaliating against a witness, and that this retaliation involved the use of a gun. Op. 16. The problem with this theory, though, is that the "instant offense of conviction" is being a felon in possession of a gun, not retaliating against a witness.

Finally, the Court seems to agree with the district court's reasoning that the obstruction enhancement was appropriate because Riley himself was aware of his prior felony convictions, and thus of the illegality of his possession of firearms, at the time he instructed his girlfriend to hide or destroy the guns. Op. 12-13. But this is a red herring. What Riley may have believed is irrelevant to the question of whether his misconduct occurred during the Government's investigation of the § 922(g) offense.

Surely the district court could have upwardly departed, or imposed an above-the-range non-Guidelines sentence, based on Riley's misdeeds. But in the absence of any evidence showing that the Government was investigating Riley for the felon-in-possession offense (evidence easily procured, if existent) when he engaged in the obstructive conduct, the court should not have imposed the § 3C1.1 enhancement.


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