United States v. Kay.
No. 24-4018. 7/21/2025. D.Utah. Judge Rossman. Road Rage Incident Involving Firearm—Unlawful Possession of a Firearm—US Sentencing Guideline § 3C1.1 Enhancement—Conduct Likely to Thwart an Investigation.
July 21, 2025
Kay had a road rage incident during which he pointed a gun at the occupants of the Stricklands’ vehicle. Immediately after the incident, Kay stopped his car on the shoulder of the road, where Mrs. Strickland observed him opening his trunk. The Stricklands called 911 and followed Kay for about 20 minutes, providing dispatch with information about Kay’s location until police officers arrived at the scene and pulled over his vehicle. Kay admitted that he and the Stricklands were involved in a road rage incident, but he denied that a firearm was involved. Kay also consented to a search of his car, where officers found methamphetamine and an empty handgun magazine. Kay’s 5-year-old son, who was in the back seat, then told the officers that 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. Kay subsequently pleaded guilty to and was convicted of unlawful possession of a firearm in violation of 18 USC § 922(g)(1). The government sought a two-level sentence enhancement for obstruction of justice under US Sentencing Guideline (USSG) § 3C1.1 because Kay had engaged in obstructive conduct by pulling off the road to hide the firearm behind a spare tire in the trunk of the vehicle. The district court found that Kay had hidden the firearm in the trunk of his vehicle before his arrest, so it imposed the two-level enhancement over defense counsel’s objection and sentenced Kay to 27 months’ imprisonment.
On appeal, Kay argued that the district court erred in imposing the § 3C1.1 enhancement because the officers were always likely to find his firearm hidden in the trunk, based on the Stricklands’ reported observation of him brandishing a firearm and the fact that officers found drugs in Kay’s vehicle. He maintained that though his pre-investigative conduct was purposely calculated, it was not “likely to thwart” the investigation of the offense, as required by application note 1 in the § 3C1.1 commentary, so it could not serve as the factual basis for the enhancement. According to USSG § 3C1.1 cmt. n.1, 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. Here, Kay hid the firearm in the trunk, underneath a cover, and behind a spare tire. And the record shows that the officers were not necessarily going to search his car until after Kay’s son directed them there. Therefore, the district court properly found that Kay’s conduct was sufficient to warrant the enhancement.
The sentence was affirmed.