Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH July 21, 2025 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-4018
MICHAEL TROY KAY,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the District of Utah (D.C. No. 1:22-CR-00087-DS-1) _________________________________
Bretta Pirie, Assistant Federal Public Defender (Scott Keith Wilson, Federal Public Defender, with her on the briefs), Salt Lake City, Utah, for Defendant- Appellant.
Joseph Palmer, Assistant United States Attorney (Trina A. Higgins, United States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff- Appellee. _________________________________
Before HARTZ, KELLY, and ROSSMAN, Circuit Judges. _________________________________
ROSSMAN, Circuit Judge. _________________________________ Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 2
Appellant Michael Kay was convicted after pleading guilty to unlawfully
possessing a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the
district court found Mr. Kay had hidden the firearm in the trunk of his vehicle
before his arrest, and over the defense’s objection, imposed a two-level
enhancement for obstruction of justice under U.S.S.G. § 3C1.1. Mr. Kay was
ultimately sentenced to 27 months’ imprisonment. On appeal, Mr. Kay
challenges the imposition of the § 3C1.1 enhancement. He insists his pre-
investigative conduct was not “likely to thwart” the investigation of the offense,
as required by application note 1 in the commentary to § 3C1.1, so it could not
serve as the factual basis for the enhancement. The district court rejected this
argument. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a), we affirm.
I
A1
On July 8, 2022, Mr. Kay was driving his car on a two-lane highway near
Brigham City, Utah. His five-year-old son was in the back seat. At some point,
1 We take these facts from the district court record, including Mr. Kay’s
amended Presentence Investigation Report (PSR)—to which the record reveals no objections—and testimony at Mr. Kay’s sentencing hearing. As a point of clarification, only the amended PSR is included in the appellate record. The original PSR was not designated on appeal, but we take judicial notice of it. See United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (taking judicial notice of a district court document not designated on appeal).
2 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 3
an SUV overtook Mr. Kay’s vehicle. Mr. Kay drove up next to the SUV and
pointed a gun at its occupants. Mr. Jacob Strickland was driving the SUV, and
his wife, Ms. Natalie Strickland, sat in the front passenger seat. Mr. Strickland
sped off and called 9-1-1.
Mr. Kay pulled onto the shoulder and stopped his car. The Stricklands
had driven ahead of Mr. Kay, and they also pulled over to “see . . . what was
going on.” RII.38. Mr. Strickland, still in the driver’s seat, “was on the phone
with dispatch, relaying to them what was happening.” RII.39. Ms. Strickland
looked behind her and “saw the trunk of [Mr. Kay’s] car open.” RII.39. She
could not see what Mr. Kay was doing, however.
Mr. Kay then pulled back onto the road and passed the Stricklands
without engaging them. The Stricklands followed Mr. Kay for about 20
minutes. Mr. Strickland provided dispatch with information about Mr. Kay’s
location until police officers arrived at the scene.
An officer from the Perry City Police Department then pulled over Mr.
Kay. Mr. Kay stuck both hands out of his car while holding a closed
The two PSRs appear substantively identical, except the amended PSR recommends the § 3C1.1 enhancement while the original PSR does not. Notably, however, the parties both indicate the original PSR recommended the § 3C1.1 enhancement. Op. Br. at 5; Ans. Br. at 6. That is incorrect. On our review, the obstruction enhancement was first sought by the government in its sentencing memorandum, which postdated the original PSR. RI.27. The docket also suggests the amended PSR was filed after the sentencing hearing. Nobody takes issue with this aspect of the procedural history, and neither do we. 3 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 4
pocketknife. The officer instructed Mr. Kay to drop the knife and exit his
vehicle, and he did so. The officer then told Mr. Kay to turn around and keep
his hands visible. Mr. Kay initially declined that instruction, but after the
officer drew a firearm and repeated himself, Mr. Kay complied.
In response to law enforcement questioning, Mr. Kay admitted he and
the Stricklands “had a road rage incident,” but he denied a firearm was
involved. RIII.15. Mr. Kay also consented to a search of his car, and officers
found methamphetamine and an empty handgun magazine. Mr. Kay’s son
then told the officers that Mr. Kay had placed a gun in the trunk of his vehicle.
The officers searched the trunk and discovered a gun underneath a cover and
behind a spare tire. Mr. Kay denied owning any of the contraband discovered
in his vehicle.
Mr. Kay was arrested at the scene. He had been prohibited from
possessing a firearm due to his criminal history.
B
A federal grand jury in the District of Utah charged Mr. Kay with
possessing a firearm as a convicted felon, under 18 U.S.C. § 922(g)(1) (Count
I); possessing a firearm while subject to a protective order, under 18 U.S.C.
§ 922(g)(8) (Count II); and possessing methamphetamine, under 21 U.S.C.
§ 844(a) (Count III). Pursuant to a plea agreement, Mr. Kay pled guilty to
4 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 5
Count I, and the district court granted the government’s motion to dismiss
Counts II and III.
The probation office then prepared a Presentence Investigation Report
(PSR). The PSR assigned Mr. Kay a criminal history category of II. The PSR
identified a base offense level of 14 for possessing a firearm after a felony
conviction in violation of § 922(g)(1), U.S.S.G. § 2K2.1(a)(6), and then
recommended a four-level enhancement for possessing the firearm in
connection with another felony offense, U.S.S.G. § 2K2.1(b)(6)(B), and a three-
level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1(a)–(b). This
resulted in a total offense level of 15. Based on these calculations, the PSR
recommended an advisory Guidelines sentencing range of 21 to 27 months’
imprisonment. The record reveals no objections to the PSR.
The government filed a sentencing memorandum seeking a two-level
enhancement for obstruction of justice under U.S.S.G. § 3C1.1. The
government sought the enhancement because Mr. Kay’s “obstructive conduct
(namely pulling off the road to hide the firearm behind a spare tire in the trunk
of the vehicle), was an unsuccessful, yet willful and purposefully calculated act,
designed to thwart the investigation.” RI.38.
Mr. Kay opposed the § 3C1.1 enhancement. In a written response, he
pointed to application note 1 in the commentary, which instructs that pre-
investigative obstructive conduct can serve as the factual basis for the
5 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 6
enhancement if it “was purposefully calculated, and likely, to thwart the
investigation.” U.S.S.G. § 3C1.1 cmt. n.1 (Note 1). Mr. Kay argued Note 1
counseled against enhancing his sentence because his conduct—merely
“putting the gun in the trunk of the vehicle”—“was not calculated nor likely to
thwart any investigation.” RI.45.
The district court held a sentencing hearing. The government called Ms.
Strickland to testify. The prosecutor explained, “[G]iven the United States’
position on the [§ 3C1.1] enhancement, we’d like to . . . put that testimony on
the record.” RII.33–34. Ms. Strickland testified about the incident on the road
with Mr. Kay.
The court also heard argument on whether to apply § 3C1.1. Both the
government and Mr. Kay focused on whether Note 1 was satisfied—that is,
whether Mr. Kay’s conduct was “purposefully calculated” and “likely” to thwart
the investigation. The government emphasized “when law enforcement
approached [Mr. Kay], he initially denied that a firearm had been involved in
the incident.” RII.50. But then, law enforcement found the firearm “concealed,
not just in the trunk of the car, but underneath a cover and partially tucked
behind the spare tire.” RII.50. The government thus took issue with Mr. Kay’s
6 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 7
contention that his conduct was “not purposefully calculated and/or likely to
thwart the investigation.” RII.50.
According to defense counsel, “My client’s actions may have been
purposely calculated, but they were not likely to thwart an investigation.”
RII.59. Mr. Kay did not hide the gun “in a secret compartment,” defense
counsel insisted, but instead only “put[] it in the trunk.” RII.59–60. Because
“[o]fficers in the state of Utah are clearly trained to search very thoroughly[,]
putting [a gun] in the trunk of the vehicle is not likely to thwart an
investigation, and in fact, it did not.” RII.60. Defense counsel compared the
facts of Mr. Kay’s case with the circumstances in United States v. Anderson,
674 F. App’x 799 (10th Cir. 2017) (unpublished). In Anderson, defense counsel
explained, a “defendant . . . threw [a] gun into an alley” before an investigation
had begun, which “is a lot more than Mr. Kay is supposed to have done,” but
even that conduct “was not indicated to be a basis for the enhancement.”
RII.60.
The district court imposed the § 3C1.1 enhancement. The court told
defense counsel, “Your argument [that Mr. Kay’s conduct was not likely to
thwart an investigation under Note 1] may be well taken” if he had just “put[]
the gun in the trunk.”2 RII.60. But the district court found Mr. Kay “hid it in
2 The district court did not reference Note 1 when ruling from the bench,
but the record confirms the court understood Mr. Kay’s argument invoked that 7 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 8
the trunk.” RII.60. The court also rejected Mr. Kay’s reliance on Anderson. The
court reasoned, “If you throw [a gun] in an alley,” like the defendant did in
Anderson, then “the gun would be in sight,” but here, the gun “was hidden, it
was not in sight.” RII.60–61.
When the obstruction enhancement was applied, Mr. Kay’s total offense
level increased by two points:
Base offense level, U.S.S.G. 14 § 2K2.1(a)(6) Connection with another felony +4 offense, U.S.S.G. § 2K2.1(b)(6)(B) Acceptance of responsibility, U.S.S.G. -3 § 3E1.1(a)–(b) Obstruction of justice, U.S.S.G. +2 § 3C1.1 Total Offense Level: 17
section of the commentary. The government discussed the language of Note 1 in its sentencing memorandum, and the parties both focused on Note 1 at the sentencing hearing. See RI.36–38 (government memorandum citing Note 1 and then calling Mr. Kay’s “conduct . . . an unsuccessful, yet willful and purposefully calculated act, designed to thwart the investigation”); RII.50 (government challenging Mr. Kay’s “argument that somehow Mr. Kay’s conduct was not purposefully calculated and/or likely to thwart the investigation”); RII.59 (Mr. Kay’s counsel stating “[m]y client’s actions may have been purposefully calculated, but they were not likely to thwart an investigation”).
On appeal, the parties agree the district court was adjudicating Mr. Kay’s Note 1 argument. See Op. Br. at 8 (“The district court analyzed the issue under the note 1 standard . . . .”); Op. Br. at 11 (“The district court correctly recognized that Mr. Kay’s conduct occurred prior to investigation and would therefore only support an obstruction of justice enhancement if it was both purposefully calculated, and likely, to thwart the eventual investigation.”); Ans. Br. at 21 (“The district court did not clearly err in finding that Kay’s conduct was likely to thwart the investigation.” (heading formatting omitted)). 8 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 9
With a criminal history category of II, Mr. Kay’s advisory Guidelines range was
27 to 33 months’ imprisonment. The court sentenced Mr. Kay to 27 months’
imprisonment, followed by three years of supervised release. This timely
appeal followed.
II
A
Mr. Kay contends the district court erred in applying the two-level
obstruction enhancement under § 3C1.1. “A challenge to the application of a
sentencing enhancement tests the ‘procedural reasonableness’ of a sentence,
‘which requires, among other things, a properly calculated Guidelines range.’”
United States v. Cook, 550 F.3d 1292, 1295 (10th Cir. 2008) (quoting United
States v. Smith, 534 F.3d 1211 (10th Cir. 2008)). “Any error in the Guidelines
calculation renders a sentence procedurally unreasonable and, if the error is
not harmless, requires remand.” United States v. Scott, 529 F.3d 1290, 1300
(10th Cir. 2008).
“[T]he overarching standard for our review of the procedural
reasonableness of the court’s sentence is abuse of discretion.” United States v.
Nkome, 987 F.3d 1262, 1268 (10th Cir. 2021). But “[t]his standard is not
monolithic.” Id. (alteration in original) (quoting United States v. Arias-
Mercedes, 901 F.3d 1, 5 (1st Cir. 2018)). “When considering a challenge to an
application of the Sentencing Guidelines, we review a district court’s legal
9 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 10
interpretation of the Guidelines de novo and its factual findings for clear error.”
Smith, 534 F.3d at 1226. “The government has the burden of proving by a
preponderance of the evidence any findings necessary to support a sentence
enhancement.” United States v. Gambino-Zavala, 539 F.3d 1221, 1228 (10th
Cir. 2008).
The enhancement at issue here, from U.S.S.G. § 3C1.1, applies when
(1) the defendant willfully obstructed 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 . . . .
As discussed, Note 1 states “[o]bstructive conduct that occurred prior to the
start of the investigation of the instant offense of conviction may be covered by
this guideline if the conduct was purposefully calculated, and likely, to thwart
the investigation or prosecution of the offense of conviction.” Id. cmt. n.1.
The Sentencing Commission added this language to Note 1 in 2006 to
“address[] a circuit conflict regarding the issue of whether pre-investigative
conduct can form the basis of an adjustment under §3C1.1.” U.S.S.G. supp. to
app. C, amend. 693 (2006). The amendment “adopt[ed] the majority view,” and
“permit[ted] application of the guideline to obstructive conduct that occurs
prior to the start of the investigation of the instant offense of conviction by
allowing the court to consider such conduct if it was purposefully calculated,
10 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 11
and likely, to thwart the investigation or prosecution of the offense of
conviction.” Id.3 In precedent that predates the 2006 amendment, we took the
position that the § 3C1.1 enhancement could sometimes be based on pre-
investigative obstructive conduct. See United States v. Mills, 194 F.3d 1108,
1115 (10th Cir. 1999) (“[A]wareness of an impending investigation is sufficient
to satisfy the nexus requirement so as to warrant enhancement.”).
We have not considered this language in Note 1 in a published opinion
since the commentary was amended. “Guidelines commentary ‘governs unless
it “run[s] afoul of the Constitution or a federal statute” or is “plainly erroneous
or inconsistent” with the guideline provision it interprets.’” United States v.
Tony, 121 F.4th 56, 62 (10th Cir. 2024) (alteration in original) (quoting United
States v. Maloid, 71 F.4th 795, 805 (10th Cir. 2023)). And “amended
commentary is binding on the federal courts” notwithstanding our “prior
judicial constructions of a particular guideline.” Stinson v. United States, 508
U.S. 36, 46 (1993). Note 1 explains when a court can use pre-investigative
3 The 2006 amendment also changed the text of § 3C1.1, replacing “during the course of” the investigation with “with respect to” the investigation. U.S.S.G. supp. to app. C, amend. 693 (2006); see United States v. Rising Sun, 522 F.3d 989, 996 (9th Cir. 2008) (explaining that “in 2006 the Sentencing Commission amended this Guideline to remove the temporal dimension from § 3C1.1”).
11 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 12
conduct as the basis for an adjustment under § 3C1.1.4 As relevant here, a court
may impose the § 3C1.1 enhancement based on pre-investigative conduct that
was “purposefully calculated, and likely” to thwart the investigation of the
offense. U.S.S.G. § 3C1.1 cmt. n.1.
Whether conduct is “likely to obstruct [an] investigation,” the
government maintains, “is the kind of fact-specific question” reviewed for clear
error. Ans. Br. at 28; see Smith, 534 F.3d at 1226. Mr. Kay does not
meaningfully dispute this assertion, contending only “the facts of [his] case
don’t warrant the enhancement whatever the standard of review.” Reply Br. at
8 n.4. We thus proceed on the understanding that whether conduct was “likely
to thwart” an investigation, under Note 1, is a factual finding reviewed under
the clear error standard. Factual findings “are clearly erroneous if they are
without factual support in the record or if the court is left with a definite and
firm conviction that a mistake has been made.” United States v. Robertson, 946
F.3d 1168, 1171 (10th Cir. 2020). “To constitute clear error, we must be
convinced that the sentencing court’s finding is simply not plausible or
permissible in light of the entire record on appeal, remembering that we are
not free to substitute our judgment for that of the district judge.” Cook, 550
F.3d at 1295 (citation omitted).
4 Nobody suggests Note 1 is not “authoritative.” Stinson v. United States,
508 U.S. 36, 38 (1993). 12 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 13
Mr. Kay argues the district court’s decision was “untenable in light of the
plain language of note 1 and the case law interpreting it.” Op. Br. at 12. Recall,
Note 1 says pre-investigative obstructive conduct “may be covered” by § 3C1.1
“if the conduct was purposefully calculated, and likely, to thwart the
investigation . . . of the offense of conviction.” On appeal, Mr. Kay concedes he
hid the firearm in his trunk before law enforcement arrived at the scene, and
thus does not challenge that his pre-investigative conduct was “purposefully
calculated.” See RII.59 (“My client’s actions may have been purposely
calculated . . . .”); RII.60 (Mr. Kay’s counsel conceding “he hid” the firearm).
Mr. Kay primarily contends, even if he acted with the purpose of
obstructing justice, his conduct cannot support the enhancement because it
was not “likely” to thwart an investigation into the offense of conviction. Op.
Br. at 10. According to Mr. Kay, “Officers knew from the Stricklands that Mr.
Kay had brandished a gun a few minutes before officers stopped him,” and that
he “pull[ed] over and open[ed] the trunk” shortly after the incident. Op. Br. at
19; see Op. Br. at 16–17. Mr. Kay emphasizes he “consent[ed] to [a] law
enforcement search of his vehicle,” and “his 5-year-old son . . . told law
enforcement exactly where to find” the gun. Op. Br. at 10, 17. He further
suggests “the officers developed probable cause to search the trunk when they
13 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 14
found drugs in the passenger compartment,” and at that point, they were likely
to “search[] the trunk and discover[] the gun.” Reply Br. at 25–26. For these
reasons, Mr. Kay contends, “No matter how well hidden in the trunk the gun
may have been—and it wasn’t particularly well hidden—it was never likely to
thwart the investigation that ensued.” Op. Br. at 19. Rather, he insists “the
gun’s discovery . . . was inevitable.” Op. Br. at 17 (heading formatting omitted).
We are not persuaded.
The record amply supports the district court’s finding that the gun “was
hidden, it was not in sight.” RII.60–61. The government correctly points out
that Mr. Kay hid the firearm “behind three separate barriers”—in the trunk,
underneath a cover, and behind a spare tire. Ans. Br. at 9. And, contrary to
Mr. Kay’s position, the record shows the officers were not necessarily going to
search his car—let alone the trunk. The Stricklands saw Mr. Kay open his
trunk, but they did not see him hide the firearm. Mr. Kay may not have
consented to a search of his car, as he ultimately did. Importantly, officers did
not turn to the trunk until after Mr. Kay’s son directed them there.
On this front, United States v. Fleming is instructive. No. 22-10275, 2023
WL 8449192 (9th Cir. Dec. 6, 2023) (unpublished).5 There, following a
5 We find this unpublished, out-of-circuit authority instructive because
it discusses the precise commentary note before us under similar factual circumstances. 14 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 15
motorcycle accident, the defendant “asked a bystander to hide his loaded
firearm for him before the police arrived at the scene. When the police arrived,
the bystander alerted them to the firearm, which the bystander had placed
along the guardrail.” Id. at *1. The district court applied the § 3C1.1
enhancement, and the defendant appealed. Id. The Ninth Circuit affirmed. Id.
The court of appeals concluded the defendant’s conduct—asking the bystander
to hide his firearm—was “likely to thwart the police’s investigation into his
possession of a firearm loaded with ammunition. Had the bystander not
relayed [the defendant’s] statement and directed the police to the gun, the
police would have had no reason to search along the guardrail for a firearm let
alone connect any such firearm to [the defendant].” Id. at *2. Similarly, had
Mr. Kay’s son never directed the police to the trunk, the police may never have
searched it. The record thus permits the conclusion that, at the time Mr. Kay
hid the gun in the trunk, it was not at all inevitable that the officers would
have discovered it.
To be sure, Mr. Kay’s view of the facts—that the officers were always
likely to find his firearm hidden in the trunk—might be a plausible one in the
abstract. But our focus is on whether the sentencing court’s finding was
“plausible or permissible in light of the entire record.” Cook, 550 F.3d at 1295
(quotation omitted). And here, it was. We discern no clear error in the district
court’s decision to impose the obstruction enhancement under § 3C1.1.
15 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 16
Mr. Kay’s contrary arguments are not persuasive. First, Mr. Kay
contends that determining whether pre-investigative conduct is “likely to
thwart” an investigation must be determined by reference to how the
“investigation . . . unfolded.” Reply Br. at 23. Mr. Kay seems to suggest that, if
the conduct did not actually obstruct the investigation, then it was not likely
to thwart it. If Mr. Kay were right, says the government, then “the
enhancement would be inapplicable in every case where the police ultimately
discover the hidden evidence.” Ans. Br. at 24–25. We agree with the
government and reject Mr. Kay’s argument.
Note 1 does not define what “likely to thwart” means. We typically look
to the plain language of the Guidelines commentary to interpret its meaning.
See United States v. Farrow, 277 F.3d 1260, 1266 (10th Cir. 2002) (interpreting
“the plain language of the commentary”); see also United States v. Marrufo,
661 F.3d 1204, 1207 (10th Cir. 2011) (“When a term is not defined in the
Guidelines, we give it its plain meaning.”). The plain meaning of the word
“likely” is “possessing or displaying the qualities or characteristics that make
something probable.” Likely, American Heritage Dictionary (4th ed. 2006).
Likely to thwart, therefore, cannot mean actually thwarted, as Mr. Kay’s
argument suggests. Further, when the Commission has intended to limit the
application of § 3C1.1 to successful obstruction, it has done so expressly. See
16 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 17
U.S.S.G. § 3C1.1 cmt. n.4(D) (explaining certain conduct “shall not, standing
alone, be sufficient . . . unless it results in a material hindrance” (emphasis
added)).
Next, Mr. Kay again relies on Anderson, the unpublished decision he
discussed at the sentencing hearing.6 In Anderson, a defendant “threw [a]
Glock handgun in an alley,” and then “retrieved the gun” and “asked [a friend]
to hide it for him.” 674 F. App’x at 800. The district court applied the § 3C1.1
enhancement, and a panel of this court affirmed—but in doing so, neither
relied on the defendant’s initial act of throwing the gun into the alley. See id.
at 800–02; Op. Br. at 14. Mr. Kay contends Anderson “excluded the initial
hiding of the gun as a basis for the enhancement,” meaning his conduct
demands the same treatment. Op. Br. at 14 n.3; see Op. Br. at 17.
Anderson does not support reversal. First, Anderson does not stand for
the proposition that the defendant’s initial conduct—tossing the gun into the
alley—would not have supported the enhancement. “[T]hat [Anderson] focused
on the defendant’s subsequent delivery of the gun to his friend, rather than on
the earlier toss into the alley,” the government explains, “in no way establishes
that the earlier conduct was insufficient.” Ans. Br. at 27. Second, unlike Mr.
6 We cite this unpublished case for its persuasive value only. See 10th
Cir. R. 32.1 (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”); Fed. R. App. P. 32.1. 17 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 18
Kay, the defendant in Anderson did not even raise an argument based on Note
1. See 674 F. App’x at 800–02 (the defendant raising an argument under
“application note 4(d)”). We agree with the government that Anderson simply
“did not . . . analyze whether the conduct was ‘likely’ to thwart the
investigation.” Ans. Br. at 27. Third, at Mr. Kay’s sentencing hearing, the
district court appropriately distinguished the facts of Anderson—where the
gun in the alley was “in sight”—from the facts here—where the gun in the
trunk “was hidden.” RII.60–61; see Ans. Br. at 27.
Finally, Mr. Kay points to two published opinions where our sister
circuits affirmed enhancements under § 3C1.1, which he says are instructive
by contrast. See Op. Br. at 14–15 (citing United States v. Montanari, 863 F.3d
775 (8th Cir. 2017); United States v. Waguespack, 935 F.3d 322 (5th Cir. 2019)).
In Montanari, the defendant’s pre-investigative conduct involved submitting
false information to the IRS. See 863 F.3d at 777, 781. In Waguespack, the
defendant’s pre-investigative conduct involved obscuring his computer activity
with sophisticated technology. See 935 F.3d at 327, 336. Mr. Kay insists
“[w]hile the defendants’ pre-investigation conduct in Montanari and
Waguespack supports the conclusion that their actions were likely to thwart
an investigation, Mr. Kay’s actions do just the opposite.” Op. Br. at 16. These
decisions are too fact bound to be helpful to Mr. Kay. As the government aptly
puts it, “[T]he fact that other courts have applied the enhancement to
18 Appellate Case: 24-4018 Document: 52-1 Date Filed: 07/21/2025 Page: 19
defendants who obstructed justice more effectively than Kay does not
undermine the district court’s finding that Kay’s conduct was sufficient to
warrant the enhancement.” Ans. Br. at 28.7
III
We AFFIRM Mr. Kay’s sentence.
7 Given our disposition, we need not consider the government’s suggestion that pre-investigative conduct can still trigger the enhancement even if it is not purposefully calculated and likely to thwart the investigation. See Ans. Br. at 22 (arguing the enhancement could apply under commentary note 4, without acknowledging Note 1). We doubt such an argument would succeed as a matter of law, however, in light of the plain text of the Guideline and Note 1, as well as the amendment history. See United States v. Guevara, 894 F.3d 1301, 1311 (11th Cir. 2018) (“The enhancement may apply to conduct that occurred prior to the start of the investigation . . . only if the conduct was ‘purposefully calculated, and likely, to thwart the investigation or prosecution of the offense of conviction.’” (emphasis added) (quoting Note 1)). We also need not consider the government’s argument that Mr. Kay “hid his gun after the investigation had already started.” Ans. Br. at 14. 19