U.S. v. Greer, No. 16-5701 (BATCHELDER, Keith, Sutton).
The defendant, a deputy sheriff, was convicted of witness tampering in connection with a federal aggravated sexual abuse prosecution. The pre-sentence report calculated his base offense level as 27, in part because the witness tampering section (USSG § 2J1.2) provides for a cross reference to USSG § 2X3.1, Accessory After the Fact, which considers the base offense level of the underlying criminal offense when the obstructive conduct is part of a particularly serious offense that has been committed. The defendant appealed, arguing that § 2X3.1 cannot apply when there has been no prosecution or conviction for the underlying offense. He argued that in his case there had not even been sufficient evidence that the underlying rape had been committed at all.
The Sixth Circuit conceded that one particular passage in U.S. v. Shabazz, 263 F.3d 603, 610–11 (6th Cir. 2001), supported the defendant’s claim that the cross-reference applies only to underlying offenses that the State has established by a preponderance of the evidence. But the Court held that the relevant passage was dicta, and therefore without precedential value. The Court limited Shabazz to holding that the sentencing court applying USSG § 2X3.1 must use the underlying offense’s base offense level (along with the applicable specific offense characteristics that the State can show were known or reasonably should have been known to the obstructing defendant), not the total offense level.
Relying on precedent from other Circuits, the Court held that the State need not prove that the defendant committed the underlying crime for the cross-reference to apply. “We find it unlikely,” the Court reasoned, “that the Guidelines intended that a defendant should avoid or minimize punishment for obstruction of a criminal investigation just because that obstruction was so successful that he prevented a conviction on the underlying crime, or because the obstruction was of an investigation for which, as it might turn out, there actually was no underlying crime.”