United States v. James E. Perry

30 F.3d 708, 1994 U.S. App. LEXIS 19114, 1994 WL 386792
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 27, 1994
Docket93-5743
StatusPublished
Cited by3 cases

This text of 30 F.3d 708 (United States v. James E. Perry) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. James E. Perry, 30 F.3d 708, 1994 U.S. App. LEXIS 19114, 1994 WL 386792 (6th Cir. 1994).

Opinions

JOINER, Senior District Judge, delivered the opinion of the court, in which KEITH, Circuit Judge, joined. BATCHELDER, Circuit Judge (pp. 712-14), delivered a separate dissenting opinion.

JOINER, Senior District Judge.

Defendant James Perry appeals the sentence imposed following his conviction for bank robbery in violation of 18 U.S.C. § 2113(a), contending that the district court impermissibly enhanced his base offense level for the robbery offense by two points for obstruction of justice. Specifically, Perry contends that he has been punished twice for the same conduct, because he was also held in contempt and sentenced to a consecutive term of six months for the conduct on which the court relied in imposing the obstruction of justice enhancement. We conclude that the district court should not have imposed the obstruction of justice enhancement in light of the independent sentence imposed for contempt, and consequently remand for resentencing.

I.

This is Perry’s second appeal in this case, and the pertinent facts are set forth in this court’s prior opinion. United States v. Perry, 991 F.2d 304 (6th Cir.1993). Briefly, a branch of the Pikeville National Bank was robbed by a man described as having dark hair and a mustache and wearing a grey suit. A teller later identified Perry from a photo array. Perry subsequently appeared before the district court on a pretrial motion sporting a full beard. The court ordered Perry to shave in advance of trial, but Perry did not comply. As a result, the teller was unable to identify Perry at trial, although there was other evidence linking Perry to the crime.

While the jury was deliberating, the court conducted a contempt hearing, and concluded that Perry had committed an act of contempt by refusing to comply with its order to appear clean shaven at trial, and concluded further that this act had obstructed the court by necessitating further proofs at the trial. The court sentenced Perry to a six-month term for contempt, to be served consecutively to any term imposed for bank robbery. The jury returned shortly thereafter with a guilty verdict on the robbery charge.

The district court enhanced Perry’s robbery offense level by two levels for obstruction of justice, relying on three independent grounds, one of which was Perry’s failure to appear clean shaven at trial. As enhanced, Perry’s total offense level was 27, with a resulting sentencing range of 78 to 97 months. The court imposed a 97-month sentence. Without the obstruction of justice enhancement, Perry’s offense level would have been 25, with a resulting range of 63 to 78 months. Thus, Perry’s refusal to shave resulted in an additional 25 months in prison, the six-month contempt term, plus the 19-month differential between the máximums of the two potentially applicable ranges.

On appeal, this court found that two of the three grounds upon which the district court relied to impose the obstruction of justice enhancement were not valid.

As to the first ground, the refusal to appear at trial clean shaven may warrant the enhancement. Perry attempted to disguise himself behind a full-grown beard and succeeded in part — the bank teller was unable to positively, identify him in court. Although this had minimal evidentiary impact on the case because other evidence linked Perry to the crime, it is nonetheless an attempt to obstruct the prosecution of the case.

Perry, 991 F.2d at 312. This court vacated Perry’s sentence, instructing the district court to consider whether the failure to ap[710]*710pear clean shaven at trial alone was sufficient to justify the enhancement.

On remand, Perry challenged the obstruction of justice enhancement because the failure to appear clean shaven had “minimal evidentiary impact” and because the jury instructions cured any problem that resulted. As to these objections, abandoned on this appeal, the district court properly noted that the enhancement can be imposed for an attempt to obstruct justice. Perry also challenged the enhancement on the ground that the court had held him in contempt for the very same conduct. The court responded, stating: “And regardless of whether he obeyed my Order to shave or not, which is another matter, the fact is, that he grew the beard in an attempt to hinder the prosecution, to make it difficult to identify him.” The court concluded that Perry’s failure to appear clean shaven was sufficient in itself to impose the obstruction of justice enhancement, a finding which Perry does not challenge in this court.

II.

On appeal, Perry reiterates the argument he advanced in the district court that his failure to shave should not have been counted twice in imposing punishment, and, consequently, that his base offense level improperly was enhanced by two levels for obstruction of justice.

At the outset, we address the government’s argument that Perry was not sentenced twice for the same conduct, but was punished through the obstruction of justice enhancement for the growing of his beard, and separately through the contempt conviction, for the distinct act of refusing to shave his beard. This argument overlooks the reality that the court’s order to shave was designed to address the risk that in-court identification would be hampered by Perry’s beard. Likewise, the obstruction of justice enhancement was imposed based on a finding that Perry intended to impede the administration of justice by appearing at trial with a beard. Whether Perry grew a beard in advance of trial would have been wholly irrelevant if he had shaved it prior to trial, pursuant to court order or not. To draw a distinction between the growing of the beard and the refusal to shave as justifying separate and cumulative punishments overlooks the fact that it was simply Perry’s appearance at trial wearing a beard that resulted in the punishment.

Moreover, despite advancing this argument, the government commendably concedes that there is an issue as to whether Perry’s sentences for his contempt and bank robbery convictions should have been calculated pursuant to U.S.S.G. § 3C1.1, a point on which we agree, and conclude necessitates resentencing. Guideline § 3C1.1 provides 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.” Comment 6 to this guideline states:

Where the defendant is convicted for an offense covered by § 2J1.1 (Contempt), § 2J1.2 (Obstruction of Justice), § 2J1.3 (Perjury or Subornation of Perjury), § 2J1.5 (Failure to Appear by Material Witness), § 2J1.6 (Failure to Appear by Defendant), § 2J1.8 (Bribery of Witness), or § 2J1.9 (Payment to Witness), this adjustment is not to be applied to the offense level for that offense except where a significant further obstruction occurred during the investigation or prosecution of the obstruction offense itself {e.g., where the defendant threatened a witness during the course of the prosecution for the obstruction offense). Where the defendant is convicted both of the obstruction offense and the underlying offense, the count for the obstruction offense unll be grouped with the count for the underlying offense under subsection (c) of § SDl.2 (Groups of Closely-Related Counts).

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Related

United States v. Frederick Irvin, Andre Miller
107 F.3d 12 (Sixth Circuit, 1997)
United States v. James Everett Perry
46 F.3d 1128 (Fourth Circuit, 1995)
United States v. James E. Perry
30 F.3d 708 (Sixth Circuit, 1994)

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Bluebook (online)
30 F.3d 708, 1994 U.S. App. LEXIS 19114, 1994 WL 386792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-e-perry-ca6-1994.