In preparation of any federal sentencing hearing, the probation officer provides the court with an itemization of each potentially applicable sentence provision. One such enhancement is the "obstruction of justice" enhancement pursuant to U.S.S.G. § 3C1.1.
At the sentencing hearing, an oral argument is held to determine if, by a preponderance of the evidence, the district court can, should, or must apply a two-level obstruction of justice enhancement.
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For the § 3C1.1 enhancement on perjury grounds to apply, for example, the defendant must be found to have given false testimony concerning a material matter with the willful intention of providing false testimony.
Sometimes, the court will employ the enhancement if there is no credible evidence substantiating their proffered testimony. This sentencing provision requires the court to review evidence and make independent findings necessary to establish willful impediment to or obstruction of justice, or attempt to do same. In so doing, it is preferable for district court to address each element of alleged perjury in a separate and clear finding, but it may determine that enhancement is required if it makes a finding of obstruction or impediment of justice that encompasses all of the factual predicates for a finding of perjury.
The obstruction of justice sentencing enhancement provision is very specific on exact examples of covered conduct. The following is a non-exhaustive list of examples of the types of conduct to which this enhancement applies, whether the conduct is an attempt, done directly or indirectly by the defendant:
(A) threatening or otherwise unlawfully influencing a co-defendant, witness, or juror
(B) suborning perjury, in the proceeding or investigation
(C) producing false, altered, or counterfeit document or record during an official investigation or judicial proceeding
(D) destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding
(E) escaping from custody before trial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding;
(F) providing materially false information to a judge or magistrate judge or law enforcement, or probation officer or presentencing officer of the court
(G) failing to comply with a restraining order or injunction issued pursuant to 21 U.S.C. § 853(e) or with an order to repatriate property issued pursuant to 21 U.S.C. § 853(p)
(H) threatening the victim of the offense in an attempt to prevent the victim from reporting the conduct constituting the offense of conviction.
This adjustment also applies to any other obstructive conduct in respect to the official investigation, prosecution, or sentencing of the instant offense where there is a separate count of conviction for such conduct.
Examples of Conduct Ordinarily Not Covered
Some types of conduct ordinarily do not warrant application of this adjustment but may warrant a greater sentence within the otherwise applicable guideline range or affect the determination of whether other guideline adjustments apply (e.g., § 3E1.1 (Acceptance of Responsibility)).
However, if the defendant is convicted of a separate count for such conduct, this adjustment will apply and increase the offense level for the underlying offense (i.e., the offense with respect to which the obstructive conduct occurred). See Application Note 8, below.
The following is a non-exhaustive list of examples of the types of conduct to which this application note applies:
(A) providing a false name or identification document at arrest, except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense
(B) making false statements, not under oath, to law enforcement officers, unless Application Note 4(G) above applies
(C) providing incomplete or misleading information, not amounting to a material falsehood, in respect to a presentence investigation
(D) avoiding or fleeing from arrest (see, however, § 3C1.2 (Reckless Endangerment During Flight))
(E) lying to a probation or pretrial services officer about defendant's drug use while on pre-trial release, although such conduct may be a factor in determining whether to reduce the defendant's sentence under § 3E1.1 (Acceptance of Responsibility)
Attorney Richard Hark has written extensively on the subject and is respected for his insight into the topic.
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