United States v. Hugh Willis, No 05-4616 & 05-4617.

On December 19, 2000, a shipment of 1300 Sony digital cameras disappeared from O'Hare International Airport soon after arriving on an American Airlines flight from Japan. An investigation resulted in confessions from two American Airlines employees-defendants Hugh Willis and Victor Trout.  A jury convicted Willis on counts of stealing and conspiracy to steal a foreign shipment, earning him forty-one months' imprisonment. For the reasons set out below, we affirm Willis's convictions, but vacate Willis's sentence and remand for resentencing.

Obstruction of Justice Enhancements

Willis challenges the district court's imposition of two obstruction-of-justice enhancements for two separate incidents of perjury.

Willis's base offense level was four and the court added on twelve levels because of the high market value of the 1300 stolen digital cameras. The district court then added two more two-level enhancements for acts of perjury that Willis committed during a pre-trial suppression hearing and during trial itself. The court thought that it would be a "bad message to send" if a single two-level increase applied for two distinct acts of perjury, so the court added four more levels for a total offense level of twenty. This set the Guidelines range at thirty-three to forty-one months' imprisonment, and the district court ultimately settled on the maximum, a forty-one-month sentence.

The issue is whether the district court erred in adding two obstruction-of-justice enhancements for two distinct acts of perjury.  Section 3C1.1 of the Sentencing Guidelines provides that a district court should "increase the offense level by 2 levels":

If (A) 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, and (B) the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense. . . .

U.S.S.G. § 3C1.1 (2005). The behavior justifying the enhancement-"obstructive conduct" is susceptible to either a broad or a narrow reading; the meaning of the term "conduct" can range from an "act" or "manner" to a "process of carrying out." WEBSTER'S THIRD NEW INTERNATIONAL 473 (1981). Section 3C1.1 does not point to the appropriate reading, and this creates an ambiguity.

But the text and commentary of other adjustments provide more explicit guidance.

Section 3C1.1 is one of at least nineteen different adjustments in chapter three of the Sentencing Guidelines. These provisions all provide broadly applicable modifications to the base offense level for "real offense elements" circumstances of the crime or of the defendant that apply to some or all criminal offenses. See U.S.S.G. § 1A1.1 ed. n.4(a); ch.3 introductory cmt.

For three of these adjustments, the Sentencing Commission has provided explicit guidance on how to calculate the offense level when a defendant has committed multiple acts supporting the same adjustment. Section 3B1.4 provides a two-level adjustment if "the defendant used or attempted to use a person less than eighteen years of age to commit the offense." U.S.S.G. § 3B1.4. Just as a defendant can perjure himself on more than one occasion, he can employ more than one minor in committing an offense. If that's the case, rather than call for multiple two-level enhancements under § 3B1.4, "an upward departure may be warranted." U.S.S.G. § 3B1.4 cmt. n.3.

Similarly, § 3C1.2 provides a two-level enhancement when the defendant "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." U.S.S.G. § 3C1.2. When "the conduct posed a substantial risk of death or bodily injury to more than one person, an upward departure may be warranted." Id. at cmt. n.6.

Finally, § 3A1.1 provides for a two-level enhancement where the "defendant knew . . . that a victim of the offense was a vulnerable victim," whereas if a "large number of vulnerable victims" were involved, this provision calls for a three-level adjustment. U.S.S.G. § 3A1.1(b)(2).

These three sections make it clear that a sentencing court should not apply the obstruction-of-justice adjustment more than once for multiple acts of obstruction. And where there is no express numerical increase in the offense level for multiple acts, the commentary indicates that a departure may be warranted.

But no other provision in chapter three calls for the use of multiple adjustments for multiple acts, and given that these provisions provide the same type of adjustment to the defendant's base offense level, they should apply in a consistent manner. Thus, consistent with the commentary in §§ 3B1.4 and 3C1.2, we hold that multiple acts of perjury produce a single two-level enhancement under § 3C1.1 and possibly a higher or above Guidelines sentence based on the discretion conferred by 18 U.S.C. § 3553(a), not the imposition of multiple obstruction-of-justice enhancements.

In a sense, this conclusion is largely procedural and does not substantively alter a district court's ability to deal with a serial perjurer. The Sentencing Guidelines are famously advisory, and the district court has substantial discretion in choosing a reasonable sentence; a discretion that includes consideration of multiple acts of obstruction. But before this discretion kicks in, the district court must first properly calculate the advisory Guidelines range, United States v. Elliot, 467 F.3d 688, 691 (7th Cir. 2006), and to do so means that the court should only apply the obstruction-of-justice enhancement once.

Accordingly, the district court erred in applying multiple two-level enhancements for Willis's perjury. Instead, it should have analyzed the additional act of perjury as a basis for a higher or non-Guidelines sentence under the factors listed in 18 U.S.C. § 3553(a).

We AFFIRM Willis’s conviction, but  VACATE and REMAND for resentencing.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com.

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