United States v. Tony.
No. 23-2110. 10/29/2024. D.N.M. Judge McHugh. US Sentencing Commission’s Guidelines Manual—US Sentencing Guidelines—Offense Level Calculation—Ambiguity—Rule of Lenity.
October 29, 2024
Tony, an Indian, was indicted for murder in Indian Country and two counts of witness tampering. He was ultimately convicted of two counts of witness tampering and one count of voluntary manslaughter. Both witness tampering counts were predicated on Tony’s behavior toward three witnesses to the killing underlying the murder charge. The presentence report (PSR) recommended that all three counts be grouped under the US Sentencing Commission’s Guidelines Manual § 3D1.2(b) and (c), resulting in a calculated offense level of 31. The district court accepted the government’s argument for a two-point offense level increase for obstruction of justice under US Sentencing Guideline (USSG) § 3C1.1 based on obstructive conduct for which Tony was not convicted. The district court then rejected the PSR’s grouping of the tampering group with the manslaughter count, apparently reasoning that USSG § 3D1.2(c) requires such grouping only when an obstruction count is actually used to enhance the underlying offense’s base level. And because the court used uncharged obstructive conduct to sustain the obstruction enhancement of the manslaughter count, the court concluded that the charged witness tampering counts were not treated as a USSG adjustment applicable to the manslaughter count for purposes of § 3D1.2(c). As a result, the district court calculated an offense level of 32 that together with Tony’s criminal history category of IV produced a USSG range of 168 to 210 months. The court sentenced Tony to 210 months’ imprisonment and three years of supervised release.
On appeal, Tony argued that the district court erred by not grouping his three offenses for purposes of the offense level calculation. The Tenth Circuit first concluded that with respect to whether a district court may choose between one of two obstruction counts to group with the underlying offense under § 3D1.2(c) when such obstruction counts are separately groupable under § 3D1.2(b), the USSG themselves are ambiguous. And the permissibility of using uncharged obstructive conduct to trigger the § 3C1.1 enhancement and thereby declining to group one of two obstruction counts with the underlying offense is also unclear. Further, the relevant policies underlying the USSG do not resolve the ambiguity. Therefore, it is unclear whether the court, having grouped two obstruction counts together under subsection (b), had to further group those counts with the underlying offense to which the obstructive conduct was directed under subsection (c). Where a USSG is ambiguous, the court must interpret it in favor of the defendant under the rule of lenity. Accordingly, the Tenth Circuit construed the relevant USSG provisions in favor of Tony.
The sentence was vacated and the case was remanded for resentencing under an offense level of 31.