PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            _____________

                No. 23-1827
               _____________

      UNITED STATES OF AMERICA

                      v.

                 JOSE SOTO,
                             Appellant
              _______________

On Appeal from the United States District Court
         for the District of New Jersey
   (District Court No. 2-20-cr-00903-002)
 District Judge: Honorable William J. Martini
                _____________

Submitted Pursuant to Third Circuit LAR 34.1(a)
               March 28, 2024
               _____________

Before: RESTREPO, MATEY, and McKEE,
Circuit Judges

          (Filed: November 20, 2024)
Kevin A. Buchan
Buchan Palo & Cardamone
750 Broad Street
Suite 202
Shrewsbury, NJ 07702
       Counsel for Appellant

Mark E. Coyne
Richard J. Ramsay
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
       Counsel for Appellee

                       _____________

OPINION

                       _____________

McKEE, Circuit Judge.

        A jury convicted Jose Soto of one count of conspiracy
to commit bank robbery, in violation of 

, two
counts of bank robbery, in violation of 

(a),
and two counts of using and carrying a firearm during and in
relation to a crime of violence, in violation of 

(c)(1)(A)(ii) and 

 At sentencing, the District
Court set his offense level at 29 and ultimately sentenced him
at the high-end of his Guidelines range: 289 months in federal

1
    Appx 1010.




                               2
prison (including two mandatory and consecutive seven-year
terms). Soto’s offense level determination incorporated a two-
level enhancement for obstruction of justice pursuant to United
States Sentencing Guideline (“USSG”) §3C1.1. The District
Court imposed this enhancement based on allegations that Soto
improperly: (1) stepped onto an elevator full of jurors and
asked one of them to press the first floor button; (2) interacted
with a testifying witness’s brother on the weekend of trial; and
(3) greeted victims as they entered the courthouse. Because
the record inadequately supports this enhancement’s
application, we will vacate and remand for a new sentencing.

    I.   Background

       Law enforcement arrested Jose Soto and Nicholas Ortiz
in connection with an armed robbery of PNC Bank in Passaic,
New Jersey, on February 6, 2020, and an armed robbery of the
Valley National Bank, in Little Falls, New Jersey, on February
27, 2020.

        A jury trial ensued. After jury selection, an occasion
arose wherein Soto got on an elevator with fourteen jurors for
his trial.2 When he first stepped onto the elevator, he asked one
of the jurors to press the button for the “[f]irst floor.” 3 Two
jurors reported the interaction to a court security officer
(“CSO”).4 The Judge responded by reprimanding Soto. The


2
  Appx 187. There is nothing in the record that indicates
whether the jurors were wearing juror badges at the time, but
the District Court assumed that they were. Id.
3
  Appx 187.
4
  Id.




                               3
Judge told him that, “[h]is conduct is just inexplicable,”5 and
that “it’s pretty self-evident that a defendant in a case knows
he’s not to interact in any way with the jury.”6 Soto’s counsel
did not deny that the interaction occurred, but noted that the
Judge had not previously instructed Soto to avoid any
interaction whatsoever with the jurors, and that Soto did not
purposefully ignore any of the Court’s instructions.7 The
Judge responded by focusing on the consequences of Soto’s
conduct—not his intention. He said:

      I’ve had situations in [which] a defendant is
      walking down a hall, a juror is walking down the
      hall, the defendant smiles at the juror, says good
      morning, which is inappropriate too. Those don’t
      seem to be a big issue. Okay? The fact that at
      least two jurors reported [the elevator
      interaction] and took the time to come up, see
      [the CSO] . . . is something we have to address
      right now.8

The Judge then interviewed each juror about the incident; one
juror (Juror #2) stated that he could not be objective in
weighing the evidence against Soto because of the interaction
and was excused.9

       The prosecutors also alleged that—the morning
following the elevator interaction, but before Soto was

5
  Appx 193.
6
  Id.
7
  Appx 192.
8
  Appx 193.
9
  Appx 224.




                              4
reprimanded by the Court—Soto “approached” the victims
scheduled to testify on the steps of the courthouse, to “greet
them.”10 He allegedly did so while neglecting to acknowledge
any of the FBI agents accompanying the victims.11 The
government averred that it did not see “any indication of a
threat or anything like that ….”12 None of the victims testified
about this interaction. In response to the government’s
allegation, Soto’s counsel offered his version of the facts: “I
was there, he was waiting for me on the courthouse steps. The
word ‘approach,’ I don’t think he approached anybody. People
walked in and he may have said ‘Good morning.’ Now that’s
the extent of what I think happened this morning.”13

       Finally, over the weekend—after trial started, but before
co-defendant Ortiz testified—Soto attended, with government
permission, a family event in his neighborhood.14 The
government reported that Soto approached one of Ortiz’s
brothers on the street and asked him whether he was Ortiz’s
brother.15 The brother allegedly did not reply and kept
walking.16 The government then explained that Ortiz’s mother
lives “very, very close to the defendant and that [Ortiz’s]
brother was visiting the mother and so was in the area of the
defendant’s residence at that time.”17 Additionally, the
government stated that the defendant and Ortiz are “distant

10
   Appx 190.
11
   Appx 190, 983.
12
   Appx 190.
13
   Appx 192.
14
   Appx 984.
15
   Id.
16
   Id.
17
   Appx 407.




                               5
relatives,” so it is possible Ortiz’s brother and Soto knew each
other.18

       The prosecutor represented that FBI agents had
interviewed Ortiz’s brother and “confirmed th[e] story” and
that the agents were looking into whether they could find
surveillance footage to further corroborate it.19 When later
asked whether the government was prepared to bring Ortiz’s
brother in to testify, the government said that he lived in South
Jersey, so it would be difficult to get him to court, but they
could possibly have him appear remotely.20 The Judge
suggested that the prosecutor offer the agent’s report and said,
“[t]hen we’ll go from there.”21 The prosecutor agreed.22 The
prosecutor later represented that there existed video evidence
of the two passing each other in the street,23 but neither the
government’s notes, nor the surveillance footage are part of the
record before us, and the Judge made no factual findings
related to this interaction.

       When deciding to apply the enhancement for
obstruction of justice at Soto’s sentencing hearing, the Judge
explained that §3C1.1 was “very applicable” to the elevator
incident. 24 The Judge then acknowledged that the additional
“two things” (greeting victims and interacting with Ortiz’s
brother) “in their own right probably wouldn’t result in an

18
   Id.
19
   Appx 612.
20
   Appx 647.
21
   Id.
22
   Id.
23
   Appx 984.
24
   Appx 988–98.




                               6
enhancement, but when [combined] with, clearly, getting on an
elevator during the course of the trial, not only could have, but
did in fact impede and affect at least one juror and caused this
Court to have to do a lengthy voir dire of the jurors because of
his conduct getting on the elevator. That was not a mistake.”25

 II.      Analysis

       On appeal, Soto argues that the District Court made
several errors. The only argument that has merit is Soto’s
claim that the District Court erroneously applied an
enhancement for obstruction under USSG §3C1.1.26

       A. Applicable Law

        As we have previously recognized, individuals are
entitled to due process at their sentencing hearings:

          Prosecutors, of course, may not introduce any
          and all hearsay testimony at a sentencing
          proceeding. The admission of hearsay statements
          in the sentencing context is subject to the
25
   Appx 989.
26
   Soto also claims the Judge abused his discretion by: (1)
allowing the government to admit photographs from Soto’s
phone that depict stacks of cash and cash strewn about his
home; (2) allowing Agent Barile to testify as a lay witness;
(3) not permitting Soto to try on a piece of evidence (a glove);
and (4) the manner in which he handled the jury’s note
indicating that there was a deadlock. He also alleges that (5)
the Judge failed to consider COVID-19 jail conditions under

(a). For the reasons the District Court
explained, all these claims fail.




                                7
       requirements of the Due Process Clause. Under
       the precedent of this Court, hearsay statements
       must have some “minimal indicium of reliability
       beyond mere allegation.27

        We review the factual findings underlying an
obstruction of justice enhancement under §3C1.1 for clear
error.28 Clear error exists only if the district court’s ruling was
“completely devoid of a credible evidentiary basis or bears no
rational relationship to the supporting data.”29 If the factual
findings are adequately supported, then “we review the District
Court’s application of the Guidelines to the facts for abuse of
discretion.”30

        The standard of proof for determining willful
obstruction of justice is by a “preponderance of evidence.”31
The government has the burden of proving that it is “more
likely than not” that the accused willfully obstructed
justice.32 Notably, there must be evidence in the record
27
   United States v. Robinson, 

 (3d Cir.
2007) (quoting United States v. Kikumura, 

 (3d Cir. 1990)); see also USSG §6A1.3(a).
28
   United States v. Gray, 

 (3d Cir. 2019).
This Court has jurisdiction to review the judgment under 

(a)(2) and 

.
29
   United States v. Vitillo, 

 (3d Cir. 2007)
(quoting United States v. Haut, 

 (3d Cir.
1997)).
30
   United States v. Kluger, 

 (3d Cir. 2013).
31
   United States v. Kim, 

 (3d Cir. 1994).
32
   See, e.g., United States v. Belletiere, 

 (3d
Cir. 1992) (finding that the prosecution failed to meet its
burden because it failed to introduce any evidence that could




                                8
supporting the District Court’s findings.33 Although the record
need not contain direct evidence of the conduct, other evidence
must be present in the record to support an inference that the
individual willfully obstructed justice.34

   B. The Factual Findings Do Not Support Soto’s
      Enhancement

       Here, the factual findings required to support this
enhancement are completely absent from the record. First, the
District Court did not explicitly adopt the findings of the
presentence report (“PSR”), which incorporated all three
allegations of obstruction. But even if it had, after weighing
the government’s evidence, courts “may accept any undisputed
portion of the presentence report as a finding of fact.”35 Instead,
Soto objected and provided “detailed reasons” why the
“findings were unreliable.”36 The PSR itself made that clear
with respect to the family incident. A footnote specified that

have made it more likely than not that Belletiere “willfully”
attempted to obstruct justice).
33
   See United States v. Douglas, 

, 50–51 (3d Cir.
2017), rev’d en banc on other grounds, 

 (3d Cir.
2018) (finding that the district court inappropriately applied
an obstruction of justice enhancement when it relied on
factual findings not supported in the record regarding
Douglas’s “willfulness”).
34
   Kim, 27 F.3d at 960–61 (reasoning that even though the
record did not contain direct evidence of Kim’s false
cooperation and misstatements, other evidence in the record
allowed the district court to make that inference).
35
   Fed. R. Crim. P. 32(i)(3)(A) (emphasis added).
36
   United States v. Campbell, 

 (3d Cir.
2002)).




                                9
“[d]efense counsel objected to this claim and stated there was
no evidence of any interaction between Soto and Ortiz’s
brother.”37 The same footnote went on to note that the
government “submitted video footage showing the two men
passing on the street and Soto turning back several times,” and
that there was “no audio recording of the interaction” that was
reported to the police by Ortiz’s brother.38 The Judge did not
rule on these objections, rendering full adoption of the PSR
impossible. Thus, the unadopted PSR could not have, by itself,
supplied a factual basis to support the District Court’s findings.

       And while the record does include passing references to
an FBI affidavit and surveillance footage,39 neither piece of
evidence is actually in the record, and it is far from clear that
the District Court considered them.           Meanwhile, Soto
explicitly denied that there was ever any interaction with
Ortiz’s brother, “much less an attempt at an ‘indirect threat.’”40
He also argued that any interaction with members of the jury
or other witnesses was “inadvertent and not intended to be any
kind of threat or obstruction of justice in any way.”41 The
District Court declined to hold a hearing on these issues and
failed to enter into the record any of the support the
government claimed it had, but nonetheless applied the
obstruction enhancement.

       Due process was therefore lacking here. In applying the
obstruction enhancement, the District Court improperly relied

37
   Appx 1031.
38
   

39
   See Appx 612, 984.
40
   Appx 940.
41
   

                               10
upon the government’s unsubstantiated allegations about
Soto’s interactions with victims and a testifying witness’s
brother. The District Court’s application of a sentencing
enhancement without supporting evidence requires remand
and resentencing.

     C. The District Court Abused its Discretion by Inferring
        Soto’s Intent Solely from his Elevator Conduct

        While there was adequate record evidence to support
the District Court’s finding that Soto entered the elevator with
jurors and asked them to press the button for floor one, it would
have been an abuse of discretion for the District Court to infer
wrongful intent from this action alone.

       We have defined “willfully,” as used in §3C1.1, as
acting consciously (“deliberately or intentionally”) with the
purpose of obstructing justice, as opposed to “negligently,
inadvertently, or accidentally.”42 Obstructive conduct under
§3C1.1 includes “threatening, intimidating, or otherwise
unlawfully influencing a co-defendant, witness, or juror,
directly or indirectly, or attempting to do so.”43 Further, we
have held that the obstruction of justice enhancement may
apply only when an individual acts willfully—that is, with the
purpose of achieving an obstruction of justice.



42
   United States v. Jenkins, 

 (3d Cir.
2001) (finding that the individual’s “failure to appear in state
court was an intentional action, one taken with full awareness
of the proceedings”).
43
   USSG §3C1.1, cmt. n. 4(a).




                               11
      District courts in our Circuit often infer willfulness
based on behavior far more outlandish than what the court
determined Soto did here.44 Although Soto’s behavior may

44
   See, e.g., United States v. Green, 

 (3d
Cir. 2010) (yelling “bitch I oughta kill your fucking ass” at
government witness); United States v. Williams, 

 (3d Cir. 2014) (nonprecedential opinion) (making
threatening telephone calls to coerce co-defendant into not
testifying at trial); United States v. Webb, 

 (3d Cir. 2012) (nonprecedential opinion) (asking brother
to confront a critical witness during his trial for armed
robbery); United States v. Carter, 

 (3d
Cir. 2008) (nonprecedential opinion) (leaving a voice
message for witness stating, “loose lips sink ships” and “you
should be running instead of running your mouth” and
witness testifying that they considered such statements to be a
threat); United States v. Rinick, 

, 241–42
(3d Cir. 2007) (nonprecedential opinion) (threatening to kill
someone who called him a “rat”); United States v. Bush, 

 (3d Cir. 2004) (nonprecedential opinion)
(writing, in a letter to wife while awaiting sentencing, that he
would “get that prosecutor . . . for doing this to me,” and
would get witness “for fucking up our getaway trip for that
weekend”).

        The parties’ briefing on whether this conduct (alone or
in combination with the two other incidents) rises to the level
of obstruction necessary to justify an enhancement is sparse.
Soto only cites Jenkins, 

 (Appellate Br. 32),
for the proposition that §3C1.1 requires willfulness. The
government cites no analogous cases whatsoever but includes
one string cite for the proposition that the district court, as the




                                12
have been “inappropriate,” the District Court’s focus was not
on Soto’s intent to obstruct—the critical element to apply this
enhancement—but on the fact that two out of fourteen jurors
were made uncomfortable by sharing an elevator with him.
Indeed, the court made no mention of the other jurors who
either did not care or, in some instances, did not even notice.45
In recognizing that an accused person greeting a passing juror
by saying “good morning” is inappropriate but is not a “big
issue,”46 the District Court acknowledged that not all
“inappropriate” behavior creates an inference of intent
necessary for an enhancement, and we certainly agree. While
there is evidence that Soto’s conduct made Juror #2


finder of fact, determines the motive for a defendant’s actions
and what was meant by the defendant’s statements.
(Appellee Br. 49). The support for this proposition is largely
out-of-circuit. The only in-circuit case the government
includes is United States v. Adair, 

 (3d Cir.
2022), which stands for the proposition that the court can
evaluate factual findings in the record for purposes of an
enhancement of §3B1.1. In doing so, the government
overlooks that much of what it describes is not in the record;
they are accusations that the District Court apparently
accepted without any factual finding or record support.
45
   See, e.g., Appx 204 (“JUROR NO. 3: No, actually nothing
happened. He just -- he was, like, one of the last people to get
in the elevator, so . . . .”); id. at 205 (“JUROR NO. 4: No, no,
no, it’s fine. I’m okay with it. It’s fine.”); id. at 211 (In
response to being asked whether Juror No. 9 would hold the
interaction against the defendant he stated, “No, everybody’s
gotta get downstairs”); id. at 211–12 (Jurors No. 10 and 11
did not even recall that Soto stepped into the elevator).
46
   Appx 193.




                               13
uncomfortable, that evidence does not bear on the ultimate
issue: whether Soto intended to cause the jurors to feel
uncomfortable. And, in any event, nearly all the other jurors
were unfazed by this interaction, if they even noticed it at all.47

       Given the logistical limitations and configurations of
many courthouses, it will often be difficult to prevent the kind
of interaction that apparently occurred between Soto and his
jurors without proof of the accused’s mindset.48 Without more,
Soto’s request that a juror push an elevator button for a
particular floor is simply the kind of interaction that occurs in
daily life. After all, the juror may have been even more
threatened if Soto had approached her and reached across her
to push the button himself. Moreover, although it could be
argued that Soto should simply have not gotten on the elevator,
nothing suggests that he was ever so advised. In sum, there is
simply not enough in this record to justify a conclusion that
Soto intended to obstruct justice.

       Moreover, we fail to see how Soto’s elevator behavior
is materially different from the passing greeting the District
Court described, and the District Court provides no
explanation. It merely acknowledged that his behavior “did in
fact impede” justice because the Court was required to conduct
“a lengthy voir dire because of his conduct getting on the

47
  Appx 200–17.
48
  This risk is heightened where judges hold court at unusual
hours, as here. See Appx 189 (“To be candid, I don’t think
there [are] too many other jurors here for other cases here at
8:00 in the morning because most judges don’t start early. I
don’t know if there’s a better solution in terms of how we’re
entering and exiting the courthouse and the courtroom.”).




                                14
elevator.”49 The District Court imposed the enhancement
because Soto’s conduct did in fact impede the proceedings; but
the obstruction of justice enhancement under the Guidelines
turns on his intent—not the consequences of actions.50

        In sum, the District Court committed clear error by
improperly relying on allegations not supported in the record.
Even if it had exclusively relied on what is in the record, the
Court would have abused discretion by applying the
enhancement; Soto’s behavior here is simply not enough to
support an inference that he willfully intended to obstruct
justice, and courts simply cannot read “obstruction” into such
everyday interactions without more than what appears on this
record.

       As the District Court noted, greeting a juror with “good
morning” will often be inconsequential,51 even though it could
also be interpreted as intimidation. Relying on such conduct
to impose a sanction for obstruction of justice puts the accused
on the horns of a dilemma. On the one hand they may very
well believe that ignoring a passing juror would be interpreted
as an act of rudeness that would adversely reflect upon them.
On the other hand, greeting the passing juror with something
as mundane as “good morning” might be interpreted as ill-
advised, an improper communication, or some kind of
intimidation. The fundamental guarantee of due process
simply does not allow a court to imprison someone for such

49
   Appx 989.
50
   See USSG §3C1.1, cmt. n. 2 (advising the court to ensure
behavior under this enhancement “necessarily reflect[s] a
willful attempt to obstruct justice”) (emphasis added).
51
   Appx 193.




                              15
conduct without more than what appears on this record.
Accordingly, the District Court erred in applying a sentencing
enhancement for this innocuous conduct under the
circumstances here.

III.     Conclusion

            Although this record compels our conclusion that a
sentencing enhancement for obstruction of justice was not
justified under the circumstances here, it goes without saying
that jurors perform an absolutely essential function. We
therefore take this opportunity to reiterate the importance of
taking all reasonable and appropriate measures to ensure their
safety and security as well as the need to create an atmosphere
that will allow them to deliberate without fear or
apprehension. Citizens who sacrifice their time and
convenience to discharge the constitutional obligation of jury
duty perform a service that is essential for the proper
functioning of our system of justice. Courts must remain
vigilant in ensuring that jurors do not have a reason to question
the priority courts assign to providing a “safe space” for the
discharge of that service. Nevertheless, for the reasons we
have explained, we are satisfied that the defendant’s conduct
here did not rise to the level of compromising the safety or
security of these jurors. Accordingly, imposition of this
obstruction enhancement was clear error. There is simply “no
rational relationship” between the enhancement and “the
supporting data.”52




52
     Vitillo, 

.




                                 16