United States v. Brown

United States Court of Appeals
Fifth Circuit
F I L E D
November 21, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 05-50899
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT GLENN BROWN, JR.,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Texas
(No. 6:04-CR-235-1)
Before BARKSDALE, BENAVIDES and OWEN, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Convicted of being a felon in possession of a firearm, Robert
Glen Brown, Jr., challenges only an obstruction-of-justice
enhancement under Sentencing Guidelines § 3C1.1. CONVICTION
AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.
I.
On 2 October 2003, Deputies from the Hill County Sheriff’s
Department responded to a domestic-disturbance call in Brandon,
Texas, from Brown’s girlfriend. She claimed Brown had threatened
her on numerous occasions, telling her at one point he would kill
her. The Deputies escorted her to Brown’s residence (mobile home)

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to retrieve her belongings. In route to Brown’s residence, the
Deputies learned Brown had an outstanding arrest warrant.
When the Deputies arrived at the mobile home, they informed
Brown they had a warrant for his arrest. As a Deputy began to
detain him, Brown broke free from the Deputy’s grasp and ran into
a heavily wooded area. The Deputies pursued Brown but soon lost
sight of him. On returning to Brown’s residence, the Deputies
found a loaded .22 caliber rifle with the initials “RB” carved in
the stock.
Brown remained a fugitive and was placed on the United States
Marshal’s most-wanted list in February 2004. That June, he was
apprehended in Laredo, Texas, over 200 miles from Brandon.
That December, a federal grand jury indicted Brown for being
a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). In April 2005, Brown was convicted of that charge.
The Presentence Investigation Report (PSR) recommended, inter
alia, a two-level upward adjustment for obstruction of justice,
pursuant to Guidelines § 3C1.1, stating: “[Brown] escaped from the
custody of the officers as they attempted to arrest him on October
2, 2003”. The recommended Guidelines sentencing range was 41 to 51
months. In response to the PSR, Brown filed an objection to the
obstruction-of-justice enhancement; he renewed it during his July
2005 sentencing hearing. The district court adopted the PSR’s
recommendations, overruled Brown’s objection without stating its

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reasons for doing so, and sentenced Brown, inter alia, to 48 months
in prison.
II.
As noted, Brown challenges only the § 3C1.1 obstruction-of-
justice enhancement. United States v. Booker, 543 U.S. 220 (2005),
held the Guidelines are now advisory, rather than mandatory;
nevertheless, a district court is still required to properly
determine the Guidelines range as part of the sentencing process.
See United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005);
United States v. Mares, 402 F.3d 511, 518-519 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005). The imposed sentence is reviewed for
reasonableness; if we find an error in the district court’s
Guidelines’ calculation, however, we will “vacate the resulting
sentence without reaching the sentence’s ultimate reasonableness”.
United States v. Tzep-Mejia, 461 F.3d 522, 526 (5th Cir. 2006).
For an obstruction-of-justice enhancement, the district
court’s factual findings — its findings as to what acts were
performed — are reviewed only for clear error. See United States
v. Holmes, 406 F.3d 337, 363 (5th Cir.), cert. denied, 126 S. Ct.
375 (2005); see also United States v. Upton, 91 F.3d 677, 687 (5th
Cir. 1996) (“A finding of obstruction of justice under § 3C1.1 is
a factual finding reviewed for clear error.”), cert. denied, 520
U.S. 1228 (1997). “A factual finding is not clearly erroneous as
long as it is plausible in light of the record as a whole.”

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Holmes, 406 F.3d at 363 (quoting United States v. Powers, 168 F.3d
741, 752 (5th Cir.), cert. denied, 528 U.S. 945 (1999)). A ruling
that those findings permit an obstruction-of-justice enhancement is
a question of law, reviewed de novo. See Villegas, 404 F.3d at 359
(“[t]he district courts’ interpretation and application of the
Guidelines [is reviewed] de novo”.).
Guidelines § 3C1.1 provides for a two-level increase if the
defendant “willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course
of the investigation, prosecution, or sentencing of the instant
offense of conviction....” U.S.S.G. § 3C1.1 (emphasis added). In
contending his conduct did not constitute such obstruction of
justice, Brown first claims his conduct does not warrant
enhancement under § 3C1.1’s plain language because his flight was
not “during the course of the investigation, prosecution, or
sentencing of the instant offense” — felon in possession of a
firearm.
Brown bases this contention on the rifle in his residence
having been found after he fled from the Deputies seeking to arrest
him on the unrelated state charge. In support, Brown cites United
States v. Clayton, 172 F.3d 347 (5th Cir. 1999). There, Clayton,
a deputy sheriff was convicted, inter alia, of violating a woman’s
civil rights by kicking her in the head after her arrest. Id. at
350-51. Clayton warned the two officers who witnessed his actions

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that they would lose their jobs if they reported anything. Id at
353. The Government sought a § 3C1.1 enhancement, claiming Clayton
obstructed a federal investigation of the incident by threatening
the two witnesses and thereby deterring them from coming forward
with information to the FBI. Id. Our court disagreed. Because
Clayton threatened the witnesses before any federal investigation
occurred, his conduct was outside § 3C1.1’s plain language, which
contemplates a “temporal or nexus requirement”. Id. at 355.
“[C]onduct ... warrants application of ... §3C1.1 only when such
conduct occurs, in the words of the guideline, during [inter alia]
an investigation of the defendant’s instant offense”. Id.
(emphasis in original). Cf. United States v. Martinez, 263 F.3d
436, 441 (5th Cir. 2001) (defendant’s obstructive conduct occurred
after FBI investigation began).
The facts in Clayton are analogous to those at hand. Brown
ran from the Deputies before he was being investigated for the
instant offense of illegally possessing a firearm. In this regard,
Brown was not indicted on the federal firearm charge until 14
December 2004, more than a year after the Deputies found the rifle
on 2 October 2003 and months after he was apprehended. (At
sentencing, in response to Brown’s objection to the enhancement,
the Government stated: it “believe[d]” arrest warrants were issued
on 2 October 2003 by the county for Brown’s firearm felony; and he
“was charged under state law that day”. There is no indication,

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however, from the PSR or otherwise, that this occurred.)
Therefore, Brown’s actions could not be considered to have occurred
during the investigation or prosecution of the instant offense.
Second, Brown claims: because he was never in official
custody at the time of his flight, his conduct did not constitute
obstruction of justice within the meaning of the Guideline.
Section 3C1.1’s application notes provide a list of examples of
conduct “to which the obstruction-of-justice adjustment is intended
to apply, as well as conduct to which it is not intended to apply”.
United States v. Huerta, 182 F.3d 361, 365 (5th Cir. 1999), cert.
denied, 528 U.S. 1191 (2000). The list is “non-exhaustive”, but
makes a clear distinction between “escaping or attempting to escape
from custody before trial or sentencing”, an action that warrants
enhancement, and “avoiding or fleeing from arrest”, an action which
“ordinarily do[es] not”. U.S.S.G. § 3C1.1. nn.4(e), 5(d)(emphasis
added). “Flight from law enforcement officers who, pursuant to a
lawful arrest, have exercised custody over the defendant may
constitute obstruction of justice under section 3C1.1, even if such
flight closely follows the defendant’s arrest.” Huerta, 182 F.3d
at 365 (emphasis added). Brown maintained at his sentencing
hearing that he was never in official custody at the time of the
attempted arrest nor was he detained in any way.
“In determining whether an individual was in custody, a court
must examine all of the circumstances surrounding the [defendant’s

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interaction with law enforcement personnel], but the ultimate
inquiry is simply whether there was a formal arrest or restraint on
freedom of movement of the degree associated with a formal arrest.”
Stansbury v. California, 511 U.S. 318, 322 (1994) (internal
quotations omitted). Here, the Deputies tried to arrest Brown; one
seized his arm to detain him, but he broke free and escaped. Cf.
Huerta, 182 F.3d at 363 (defendant in custody when officers
handcuffed him and took him to the local police department).
Because Brown was never in custody and the Deputies never exercised
a degree of formal control or restraint over him, his flight did
not constitute obstruction of justice within the meaning of the
Guideline.
In further support of this interpretation, our precedent has
identified two factors distinguishing obstructive and non-
obstructive conduct: “(1) whether the conduct presents an
inherently high risk that justice will be obstructed and (2)
whether the conduct requires a significant amount of planning, as
opposed to being the result of ... panic, confusion, or mistake”.
United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000)
(internal quotations omitted). Generally, only “considered
effort[s] to derail investigations and prosecutions” constitute
obstruction of justice. United States v. Greer, 158 F.3d 228, 235
(5th Cir. 1998) (typifying obstruction-of-justice conduct as
“involv[ing] egregiously wrongful behavior whose execution requires

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a significant amount of planning and presents an inherently high
risk that justice will be obstructed”), cert. denied, 525 U.S. 1185
(1999). Often, deceptive conduct is a factor for determining
obstruction of justice. See generally Martinez, 263 F.3d 436
(determining defendant engaged in obstruction of justice where he
obtained a false passport and transferred business assets to evade
the FBI). See also United States v. Porter, 145 F.3d 897, 902 (7th
Cir. 1998) (upholding an obstruction of justice enhancement where
the defendant, knowing an indictment was imminent, fled the
jurisdiction, changing his hair color, moving to another State, and
creating a fictitious name, driver’s license, and social security
card).
The Government maintains that, although Brown’s initial flight
in early October 2003 might not warrant an obstruction of justice
enhancement, his continued fugitive status, including moving 200
miles to Laredo, did impede the Government’s investigation into the
federal firearm felony. This is an issue of fact for the district
court, for which we would review for clear error. The record,
however, contains little evidence about Brown’s residing in Laredo
and the circumstances surrounding his capture. Of special
significance, there is no evidence Brown knew he was wanted by law
enforcement or that he engaged in deceptive conduct to evade
capture. Furthermore, the district court did not specifically
find, as a factual matter, that Brown engaged in obstruction of

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justice. It simply overruled Brown’s objections to the
enhancement, without stating its reasons for doing so.
We need not make that clear-error determination; instead, we
base our holding on a plain reading of § 3C1.1. As discussed,
supra, Brown’s flight did not occur during the course of an
investigation, prosecution, or sentencing of the federal firearm
charge, nor was he in custody at the time of his flight. For those
reasons, the district court erred in applying the obstruction-of-
justice enhancement.
III.
For the foregoing reasons, Brown’s conviction is AFFIRMED; his
sentence is VACATED; and this matter is REMANDED for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING

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