United States v. Aaron Edwin Remaley

646 F. App'x 719
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 22, 2016
Docket15-10875
StatusUnpublished

This text of 646 F. App'x 719 (United States v. Aaron Edwin Remaley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Aaron Edwin Remaley, 646 F. App'x 719 (11th Cir. 2016).

Opinion

PER CURIAM:

Aaron Remaley pled guilty to conspiring, in violation of 21 U.S.C. § 846, to distribute and to possess with the intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1), and was sentenced to prison of 121 months, a sentence at the low end of the sentence range prescribed by the Sentencing Guidelines. He appeals his sentence on the grounds that (1) the district court abused its discretion in entertaining the government’s untimely objection to the failure of the Presentence Report (“PSI”), in applying the Sentencing Guidelines, to include an obstruction of justice adjustment of his base offense level under U.S.S.G. § 3B1.1; (2) the district court clearly erred by finding that he willfully obstructed or attempted to obstruct justice and thus increasing his base offense level under § 3CC1.1; and (3) his sentence is substantively unreasonable because, in light of the sentencing goals set out in 18 U.S.C. § 3553(a), it is greater than necessary and does not satisfy those goals.

Upon review of the record and consideration of the parties’ briefs, we affirm.

*721 I.

We review a district court’s consideration of untimely objections to a PSI for abuse of discretion. United States v. Edouard, 485 F.3d 1324, 1351 (11th Cir. 2007). Rule 32(f)(1) of the Federal Rules of Criminal Procedure states:

Within 14 days after receiving the pre-sentence report, the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report.

Fed.R.Crim.P. 32(f)(1). However, if good cause is shown, a district court may “change any time limits prescribed in this rule” or allow a party “to make a new objection at any time before sentence is imposed.” Fed.R.Crim.P. 32(b)(2) and (i)(l)(D).

Although Rule 32 vests the district court with discretion to hear untimely objections when good cause for the delay is shown, none of our decisions have defined what constitutes “good cause” for purposes of the rule. However, in other contexts, we have determined that good cause exists where “some outside factor, such as reb-anee on faulty advice, rather than inadvertence or negligence” prevented the party from acting in a timely manner. E.g., Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir.2009) (citation omitted) (finding in a civil case that the district court abused its discretion by dismissing plaintiffs complaint without prejudice for failure to comply with Fed. R.Civ.P. 4(m) where the U.S. Marshall had been directed to serve the complaint but failed to do so through no fault of the plaintiff).

We find no abuse of discretion here in the district court’s finding that the government had good cause for raising its objection at the sentencing hearing. It is undeniable that the government missed the 14-day window given for objections. However, the delay was understandable. The objection was based on recorded jail calls, in which Remaley asked someone to wipe data on one of his phones that was in the custody of the Sheriffs Office. Although the government knew about the calls, it was unable to access the phone data in a readable format until shortly before the sentencing hearing. It could not raise the objection until it knew what was on the telephone. Had the phones not contained any evidence material to the investigation, then Remaley’s jail call could still have been interpreted as an attempt to erase a phone but not as an attempt to obstruct justice. It was reasonable for the government to withhold its objection until it had established that it had grounds for the U.S.S.G.. § 3B1.1 enhancement. The government’s delay was not due to “inadvertence or negligence.” Rance, 583 F.3d at 1286. Furthermore, Remaley has not shown that he was prejudiced by the untimeliness of the objection. Therefore, the district court did not abuse its discretion by allowing the government to raise the untimely objection.

II.

The district court increased Remaley’s base offense level under the U.S.S.G. § 3B1.1 adjustment, “Obstructing or Impeding the Administration of Justice.” We review the findings of fact on which the court based the increase for clear error; we review de novo the court’s determination that such findings supported the adjustment. United States v. Doe, 661 F.3d 550, 556 (11th Cir.2011).

Section § 3C1.1 provides for the increase of the defendant’s base offense level if

*722 (1) the defendant willfully obsffiueted or ■ impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense.

U.S.S.G. § 3C1.1. An example of conduct deemed “obstructive” under § 3C1.1 is attempting to destroy or conceal or have another person destroy or conceal evidence that is material to the investigation. Id. § 3C1.1 comment. (n.4(D)). Conduct that warrants a § 3C1.1 adjustment for obstruction of justice usually indicates that the defendant has not accepted responsibility for his criminal conduct enough to earn an offense level decrease under U.S.S.G. § 3E1.1 for acceptance of responsibility, but there are extraordinary cases where both adjustments may apply. Id. § 3E1.1 comment, (n.4).

We find no clear error in the district court’s finding that Remaley attempted to have someone destroy or conceal government evidence or the court’s determination that the finding justified a § 3C1.1 application. The first jail call transcript revealed that Remaley instructed the listener to have two persons, who were listed in Remaley’s contacts as being associated with Sprint, “shut down” a number and “wipe it.” The second transcript showed Remaley was upset that “they”— presumably Sheriffs Office personnel— had “still been getting [his] calls.” From this evidence, the court reasonably inferred that Remaley tried to prevent law enforcement officials from having access to information on the phone he had with Sprint cellular service, which a government witness testified had incriminating information on it.

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Related

United States v. John Windell Clay
483 F.3d 739 (Eleventh Circuit, 2007)
United States v. Serge Edouard
485 F.3d 1324 (Eleventh Circuit, 2007)
United States v. Hunt
526 F.3d 739 (Eleventh Circuit, 2008)
Rance v. Rocksolid Granit USA, Inc.
583 F.3d 1284 (Eleventh Circuit, 2009)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Doe
661 F.3d 550 (Eleventh Circuit, 2011)

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Bluebook (online)
646 F. App'x 719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-aaron-edwin-remaley-ca11-2016.