Appeal from the United States District Court for the Southern District of Illinois. No. 94-CR-40055--William D. Stiehl, Judge.
Before CUMMINGS, RIPPLE, and EVANS, Circuit Judges.
July 9, 1994, was not a good day for Lester O'Neal Gilleylen. To start with, police in Carbondale, Illinois, stopped his 1995 Mustang for a traffic violation. After the stop, a loaded semi-automatic pistol was discovered on the floor of the car. Trumping these events, the police discovered that Gilleylen (he first told the police his name was "Gilley" but later changed that to "Gillen") had a conviction for burglary, a felony, on his record. This mix earned Gilleylen a one-count indictment charging possession of a firearm by a felon, to which he plead guilty in the United States District Court for the Southern District of Illinois. His appeal to this court raises two sentencing issues. Neither issue requires much comment, but we'll talk about one because its a pretty good example of how not to present an issue for appellate review.
Gilleylen's base offense level under the Federal Sentencing Guidelines was twenty. He was tagged with a two-point enhancement for obstruction of justice, but he was also given three points off for timely acceptance of responsibility. This put his adjusted offense level at 19, and his criminal record spotted him in criminal history category III. His guideline range, accordingly, was 37 to 46 months. He was sentenced to serve a term of 40 months.
Gilleylen challenges the two-point enhancement for obstruction of justice. If he wins on this point, he moves down to level 17 under the guidelines and his sentencing range drops to 30-37 months. Gilleylen also advances a backup argument; that only a one-point obstruction enhancement should have been ordered. If the obstruction enhancement is halved, Gilleylen moves to level 18 and a range of 33 to 41 months.
The sentencing guidelines call for a two-level increase in offense level if a defendant obstructs justice. Section 3C1.1 provides:
Obstructing or Impeding the Administration of Justice
If 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 two levels.
The commentary on obstruction contains a "non-exhaustive" list of examples of conduct to which the enhancement applies. One of the examples is "escaping or attempting to escape from custody before trial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding." Gilleylen received his enhancement because he failed to show up in court for a scheduled pretrial conference. His failure to appear resulted in an issuance of an arrest warrant. Nine days after he failed to appear, but before the arrest warrant was actually executed, Gilleylen self-surrendered to the police in Carbondale, and they turned him over to the United States Marshal.
Neither side to this appeal has presented the obstruction issue very well. Gilleylen relies on an Eighth Circuit decision, United States v. Crumb, 902 F.2d 1337 (8th Cir. 1990). In fact, Crumb is the only case cited by Gilleylen in support of his argument. The problem, however, is that Crumb doesn't have anything to do with the issue Gilleylen raises. But you would never know that from reading the government's responsive brief because it fails to mention Crumb. Citing a case for the wrong reason and failing to mention your opponent's primary case and note its deficiencies are not exemplary appellate practice qualities. More care should have been taken in this case to properly present this issue for review.
In his brief, Gilleylen tells us "the question of whether a defendant can mitigate the two-level enhancement for obstruction of justice has previously been addressed." He then cites the following passage from Crumb:
[W]e agree that [the defendant's] voluntary surrender a little more than a week after his failure to appear for service of his sentence is a circumstance not taken into account by the Guidelines. Because nothing in the Guidelines forbids the district court from considering the voluntariness of a defendant's surrender or the length of a defendant's delay in ...