United States v. Mitchell

MEMORANDUM **

Defendant-Appellant Christopher John Mitchell argues that the district court erred by enhancing his 18-month sentence for passing counterfeit currency under 18 U.S.C. § 472 based on obstructing justice and engaging in a joint undertaking that encompassed counterfeit currency exceeding a face value of $5,000. We affirm.

The district court properly held that an obstruction of justice adjustment under U.S. Sentencing Guidelines Manual § 3C1.1 is appropriate where an attempt to destroy evidence is accompanied by flight from, and violent struggle with, the arresting officers.

The district court did not clearly err by finding that Mitchell had agreed with co-defendant Buchanan jointly to pass counterfeit currency. See United States v. Mezas de Jesus, 217 F.3d 638, 642 (9th Cir. 2000) (reviewing district court’s factual findings supporting a sentencing decision for clear error). The district court also did not clearly err by finding that Mitchell could reasonably have foreseen that his and Buchanan’s joint undertaking might include counterfeit currency with a face value exceeding $5,000. See United States v. Kahlon, 38 F.3d 467, 470 (9th Cir.1994) (reviewing district…

dissenting.

Because I disagree with the majority’s conclusions regarding the sentencing guidelines obstruction of justice adjustment and standard for determining relevant conduct, I respectfully dissent. The sentencing guidelines do not expressly authorize the majority’s approach of amassing several elements of a defendant’s conduct that would be insufficient standing alone to justify an obstruction of justice adjustment. The commentary to the *943 guidelines lists only one aggravating factor, materially hindering an investigation, that when coupled with an attempt to destroy evidence contemporaneous with arrest is sufficient for the two level adjustment. See U.S.S.G. § 3C1.1, cmt. n. 4(d) (2000). I disagree with the majority’s approval of a cumulative approach and instead conclude that the district court abused its discretion in applying the obstruction of justice adjustment. See United States v. Leon-Reyes, 177 F.3d 816, 824 (9th Cir.1999).

When determining a defendant’s relevant conduct, the district court must first define the scope of the criminal activity before concluding that the conduct was reasonably foreseeable. See U.S.S.G. § 1B1.3, cmt. n. 2 (2000); United States v.…