Appeal from the United States District Court for the District of Utah (D.C. No. 2:08-CR-00156-TS-1)
The opinion of the court was delivered by: Holmes, Circuit Judge.
United States Court of Appeals Tenth Circuit
Elisabeth A. Shumaker Clerk of Court
Before KELLY, LUCERO, and HOLMES, Circuit Judges.
Defendant-Appellant Christopher Noah Mollner pleaded guilty to armed bank robbery, in violation of 18 U.S.C. § 2113. Prior to sentencing, the district court granted the government's motion to compel Mr. Mollner to testify at the trial of his co-defendant, Ira Burdell Wakefield, and to grant Mr. Mollner immunity for his testimony. However, Mr. Mollner refused to testify. At Mr. Mollner's sentencing hearing, the district court adjusted his offense level upward by two levels for obstruction of justice under U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 3C1.1 based upon Mr. Mollner's refusal to testify, and sentenced Mr. Mollner to 100 months' imprisonment.*fn1
On appeal, Mr. Mollner challenges the district court's application of the obstruction-of-justice enhancement. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that the district court did not err by increasing Mr. Mollner's offense level for obstruction of justice. Accordingly, we AFFIRM his sentence.
"[W]e review sentences for reasonableness under a deferential abuse-of-discretion standard." United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008). "Reasonableness review is a two-step process comprising a procedural and a substantive component." United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008) (citing United States v. Gall, 552 U.S. 38, 51 (2007)). "A challenge to the application of a sentencing enhancement tests the 'procedural reasonableness' of a sentence, 'which requires, among other things, a properly calculated Guidelines range.'" United States v. Cook, 550 F.3d 1292, 1295 (10th Cir. 2008) (quoting United States v. Smith, 534 F.3d 1211, 1226 (10th Cir. 2008)); see also Smith, 534 F.3d at 1226 (noting that the defendant's challenge to "the district court's application of the obstruction enhancement under USSG § 3C1.1" constitutes a procedural-reasonableness challenge). "When evaluating the district court's interpretation and application of the Sentencing Guidelines, we review legal questions de novo and factual findings for clear error, giving due deference to the district court's application of the guidelines to the facts." United States v. Munoz-Tello, 531 F.3d 1174, 1181 (10th Cir. 2008) (quoting United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006)) (internal quotation marks omitted).
The district court concluded that Mr. Mollner's "refusal to testify at his co-defendant's trial after the immunity order was issued constitute[d] a willful obstruction of justice under Section 3C1.1," and applied the two-level enhancement. R., Supp. Vol. 2, at 16 (Sentencing Hr'g Tr., dated July 8, 2009). On appeal, Mr. Mollner argues that because his "refusal to testify at his co-defendant's trial did not obstruct the investigation, prosecution, or sentencing of his own offense, the adjustment was clearly inapplicable." Aplt. Opening Br. at 13 (emphasis added).
I. Bernaugh and Amendment 581 to U.S.S.G. § 3C1.1
Prior to November 1, 1998, it was clear in this circuit that U.S.S.G. § 3C1.1 applied to a defendant who obstructed justice in a case closely related to his own.
During that period, U.S.S.G. § 3C1.1 provided that "[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels." U.S.S.G. § 3C1.1 (1990). We interpreted this version of U.S.S.G. § 3C1.1 in United States v. Bernaugh, and held that "the section 3C1.1 enhancement applies where a defendant attempts to obstruct justice in a case closely related to his own, such as that of a co-defendant." 969 F.2d 858, 861 (10th Cir. 1992).
However, in 1998, subsequent to our decision in Bernaugh, the Sentencing Commission amended U.S.S.G. § 3C1.1. In Amendment 581, the Commission set forth the substance of the amendment and explained the reasons for it. See U.S.S.G. app. C, amend. 581 (2001). As a result of this ...