23-6811 United States v. Harris

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of January, two thousand twenty-five.

PRESENT:

RICHARD J. SULLIVAN, STEVEN J. MENASHI, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 23-6811

ANTHONY HARRIS,

Defendant-Appellant. _____________________________________ For Defendant-Appellant: JONATHAN J. EINHORN, New Haven, CT.

For Appellee: CONOR M. REARDON (Nathaniel J. Gentile, Sandra S. Glover, on the brief), Assistant United States Attorneys, for Vanessa Roberts Avery, United States Attorney for the District of Connecticut, New Haven, CT.

Appeal from a judgment of the United States District Court for the District

of Connecticut (Jeffrey A. Meyer, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the July 18, 2023 judgment of the district court

is AFFIRMED.

Anthony Harris appeals from a judgment of conviction following a jury trial

in which he was found guilty of four counts of possession with intent to distribute

and distribution of oxycodone, in violation of

(a)(1) and (b)(1)(C).

On appeal, Harris argues that the district court erred at sentencing by applying an

enhancement for obstruction of justice pursuant to United States Sentencing

Guidelines (“U.S.S.G.”) § 3C1.1 and by failing to grant a downward departure

under U.S.S.G. § 5H1.4 in light of his sickle-cell disease. We assume the parties’

familiarity with the underlying facts, procedural history, and issues on appeal.

2 In June 2020, the Drug Enforcement Agency (“DEA”) began investigating

Harris for selling oxycodone pills – which a doctor prescribed to help him manage

his sickle-cell disease – to his acquaintance James Myers. On September 2, 2020,

DEA agents stopped Harris and Myers in their cars near Myers’s home, at which

time the agents seized 220 oxycodone pills from Myers and 32 oxycodone pills,

$4,400 in cash banded together, and a cellphone from Harris. Although both men

were detained, and Myers admitted to having purchased the pills for $20 each

from Harris moments earlier, neither was arrested or charged at that time.

Several months later, on November 29, 2020, Harris wrote a letter to the DEA

requesting the return of his seized possessions and claiming, among other things,

that he did not know why the DEA had stopped him and taken his property. He

stated that the money seized from him was payment for a flooring job performed

the day before, and he attached a handwritten invoice purporting to reflect that he

had received a $4,500 payment for the job.

At sentencing, the district court found that the representations in the letter

and invoice were “clearly false” and applied a two-point enhancement for

obstruction of justice under U.S.S.G. § 3C.1.1. App’x at 68–69. The district court

ultimately sentenced Harris to 60 months’ imprisonment, well below its calculated

3 Guidelines range of 97 to 121 months. 1 The district court stated that Harris’s

sickle-cell anemia was “a major reason” for the below-Guidelines sentence, and

expressly noted that it had taken the effects of the disease “fully into account” in

determining his sentence. Id. at 127.

I. Obstruction-of-Justice Enhancement

Harris first disputes the district court’s imposition of the two-level

enhancement under U.S.S.G. § 3C1.1 for the fraudulent letter and invoice he sent

to the DEA. Section 3C1.1 provides for a two-level enhancement where a

defendant “willfully obstructed or impeded, or attempted to obstruct or impede,

the administration of justice with respect to the investigation . . . of the instant

offense of conviction.” U.S.S.G. § 3C1.1. This enhancement applies to a range of

conduct, see U.S.S.G. § 3C1.1 cmt. n.4(A)–(K), including “producing or attempting

to produce a false, altered, or counterfeit document or record during an official

investigation,” U.S.S.G. § 3C1.1 cmt. n.4(C). We review the application of the

obstruction-of-justice enhancement under a mixed standard of review. See United

States v. Brown,

(2d Cir. 2003). We accept a district court’s factual

1 While the advisory Guidelines range at the time of Harris’s sentencing was 121 to 151 months, the parties agreed that a range of 97 to 121 months’ imprisonment appropriately accounted for the then-anticipated amendment to U.S.S.G. § 4C1.1, which would have retroactively applied to Harris’s sentence.

4 findings unless they are clearly erroneous, but we review de novo the district

court’s ruling that those facts constitute obstruction under the Guidelines. See

United States v. Gershman,

, 102 (2d Cir. 2022).

Harris now concedes that the letter and invoice were “obviously

fraudulent.” Harris Br. at 11. He nevertheless contends that he could not have

“willfully” obstructed justice because, at the time he wrote the letter, he was

unaware of any pending law enforcement investigation and merely wanted to

recover his possessions. He also argues that the district court erred by failing to

make a finding with respect to whether his false documents to the DEA were

material. We disagree.

In the context of section 3C1.1, to act willfully means that “the defendant

consciously acted with the purpose of obstructing justice.” United States v.

Woodard,

(2d Cir. 2001) (internal quotation marks omitted).

Based on the record below, we perceive no error, much less clear error, in the

district court’s findings that Harris “knew of [the DEA’s] investigation” and

“furnish[ed]” a “clearly false” “document to the DEA . . . with an intent to obstruct

[that] investigation.” App’x at 68–69. At the time Harris sent his letter and

phony invoice to the DEA, several months had passed since he had been stopped

5 by DEA agents immediately after completing a drug transaction. As part of that

stop, the agents had seized drug proceeds, oxycodone pills, and a phone – all

potentially incriminating evidence – which they did not return to Harris. As the

district court observed, given this sequence of events, it “would have been self-

evident” to Harris that he was the subject of a criminal investigation and that the

items seized from him were evidence in that investigation.

at 56–57. The

district court’s findings that Harris knowingly sent false documents to the DEA in

an attempt to explain away and re-acquire evidence of his crimes was more than

sufficient to establish his intent to obstruct justice. See United States v. Bonds,

(2d Cir. 1991) (“Documents . . . are not normally altered or fabricated;

thus, alteration of documents is itself evidence of an intent to deceive[.]”); see also

United States v. Oehne,

(2d Cir. 2012) (explaining that, under the

clear error standard, an appeals court “may not reverse” “the district court’s

account of the evidence [if it] is plausible in light of the record viewed in its

entirety” (internal quotation marks omitted)).

Harris next contends that the district court erred by failing to make a finding

that his letter and invoice “materially impeded” the DEA’s investigation.

Gershman, 31 F.4th at 103 (“An obstruction of justice enhancement only applies if

6 the court finds that the defendant willfully and materially impeded the search for

justice in the instant offense.” (internal quotation marks omitted)). Because

Harris did not raise this objection below, we review it for plain error. See United

States v. Rainford,

(2d Cir. 2024). Therefore, Harris can only

prevail on this argument if he “demonstrate[s] that (1) there was error, (2) the error

was plain, (3) the error prejudicially affected his substantial rights, and (4) the error

seriously affected the fairness, integrity[,] or public reputation of judicial

proceedings.” United States v. Burden,

(2d Cir. 2017) (internal

quotation marks omitted).

The district court did not plainly err here. To begin, as the government

points out, this Court has never expressly held that a district court must make a

finding of materiality before applying an obstruction-of-justice enhancement

when a defendant “produc[es] . . . a false . . . document or record during an official

investigation.” U.S.S.G. § 3C1.1 cmt. n.4(C). That is hardly surprising, since

part (C) of application note 4, in contrast to other types of obstructive conduct

listed in the Guidelines commentary, does not require that the false document be

“materially false.” Compare U.S.S.G. § 3C1.1 cmt. n.4(C) (omitting any reference to

the term “material”), with U.S.S.G. § 3C1.1 cmt. n.4(F), (H) (listing, “as examples of

7 the types of conduct to which th[e] obstruction] adjustment applies, “providing”

“materially false information” to judges and “probation officer[s] in respect to a

presentence or other investigation for the court”), and U.S.S.G. § 3C1.1 cmt. n.4(G)

(listing, as an example, “providing a materially false statement to a law

enforcement officer that significantly obstructed or impeded the official

investigation or prosecution of the instant offense”); see also United States v.

Shannahan,

, 259–60 (11th Cir. 2005) (concluding that application

note 4(C) has no materiality requirement); United States v. Gonzalez,

(6th Cir. 2016) (same). At a minimum, the invoice that Harris sent to the

DEA was a “false” document “produc[ed]” “during an official investigation,” as

contemplated by part (C) of application note 4.

To be sure, our precedent has at times spoken broadly when discussing the

obstruction-of-justice enhancement. See United States v. Zagari,

(2d Cir. 1997) (citing application note 3(D), (F)–(H) to observe that “[a]pplication

of § 3C1.1 generally requires findings of willfulness and materiality” and

concluding that “an enhancement for obstruction of justice may therefore be

granted if the court finds that the defendant willfully and materially impeded the

search for justice in the instant offense”); Gershman, 31 F.4th at 103–05 (applying a

8 materiality requirement to conduct covered by application note 4(A), which

identifies “threatening, intimidating, or otherwise unlawfully influencing a co-

defendant, witness, or juror” without any reference to materiality). But since

neither Zagari nor Gershman involved an application of the enhancement to a false

document produced during an official investigation, neither case provides a

holding regarding the requirements of application note 4(C) and thus cannot

support a finding of plain error here. See United States v. Whab,

(2d Cir. 2004) (“For an error to be plain, it must, at a minimum, be clear under

current law. We typically will not find such error where the operative legal

question is unsettled, including where there is no binding precedent from the

Supreme Court or this Court.” (internal quotation marks and citation omitted)).

In any event, the district court at sentencing effectively made a materiality

finding when it adopted the government’s position that the “reason that [Harris]

wrote to the DEA” was to recover “evidence in a potential drug case against him,”

App’x at 55–56, and went on to explain that Harris’s sending of false documents

“to the DEA was obviously an effort to falsely disclaim that the money that was

seized was drug money,” id. at 124. In other words, Harris’s letter and invoice

attempted to provide an innocent explanation for the drug proceeds found in his

9 possession and to recover key evidence in the DEA’s investigation against him.

“[I]f believed,” the letter and invoice clearly would have “tend[ed] to influence or

affect” the DEA’s understanding of Harris’s conduct on September 2, 2020, which

was later charged as count five in the indictment. United States v. Strange,

(2d Cir. 2023) (quoting U.S.S.G. § 3C1.1 cmt. n.6’s definition of materiality);

see also Gershman, 31 F.4th at 103–04 (“Section 3C1.1 establishes no general

requirement that the obstruction succeed.” (internal quotation marks omitted)).

Harris himself offers no argument on appeal that his submission of false

documents to the DEA fell below the “conspicuously low” “threshold for

materiality.” Gershman, 31 F.4th at 103 (internal quotation marks omitted). Nor

does he explain how, given the obvious nature of materiality here, the district

court’s analysis prejudicially affected his substantial rights or in any way affected

the fairness, integrity, or public reputation of judicial proceedings. See United

States v. Dussard,

(2d Cir. 2020) (“The burden is on the [defendant]

to meet [the plain-error] standard.”). For all of these reasons, we decline to find

plain error on this ground.

10 II. Departure Under U.S.S.G. § 5H1.4

Harris also argues that the district court erred by not granting a downward

departure under U.S.S.G. § 5H1.4, which allows for departures based on a

defendant’s “extraordinary physical impairment,” on account of his sickle-cell

disease. But “a district court’s decision not to depart from the Guidelines is

generally unreviewable, unless it misunderstood its authority to do so.” United

States v. Robinson,

(2d Cir. 2015). Harris makes no argument that

such a misunderstanding occurred here, and “[i]n the absence of clear evidence of

a substantial risk that the judge misapprehended the scope of his departure

authority, we presume that a sentenc[ing] judge understood the scope of [that]

authority.”

(internal quotation marks omitted).

In any event, the record makes clear that the district court carefully

considered Harris’s sickle-cell disease before giving him a well-below Guidelines

sentence – that is, varying downwards based on the factors set forth in

(a), exactly as Harris had requested. We therefore reject Harris’s

suggestion that the district court plainly erred by declining to sua sponte consider

and apply a downward departure in addition to the variance reflected in Harris’s

below-Guidelines sentence. See United States v. Canova,

, 358 n.28 (2d

11 Cir. 2005); see also United States v. Jordan, No. 23-6163,

, at *2 (2d

Cir. May 30, 2024) (explaining that a “district court ha[s] no obligation to consider

every conceivable ground for a departure” before relying on the facts that could

form the basis for such departure to impose a non-Guidelines sentence).

We have considered Harris’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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