United States Court of Appeals

For the Eighth Circuit

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No. 11-2396

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United States of America

lllllllllllllllllllll Appellee

v.

Hugo Galaviz, also known as Big Happy

lllllllllllllllllllll Appellant

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 Appeal from United States District Court 

for the District of Nebraska

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 Submitted: May 15, 2012

 Filed: August 6, 2012

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Before WOLLMAN, ARNOLD, and SMITH, Circuit Judges.

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ARNOLD, Circuit Judge.

After Hugo Galaviz pleaded guilty to distributing methamphetamine, 21 U.S.C.

§ 841(a)(1), (b)(1), and being a felon in possession of a firearm, 18 U.S.C.

§§ 922(g)(1), 924(a)(2), the district court sentenced him to 151 months'

imprisonment. Mr. Galaviz appeals his sentence, raising as his sole issue the
propriety of the district court's enhancement of his sentence for obstructing justice. 

See U.S.S.G. § 3C1.1. We reverse.

As relevant here, § 3C1.1 provides that a defendant's offense level should be

enhanced two levels if he "willfully ... attempted to obstruct ... the administration of

justice with respect to ... the sentencing of the instant offense of conviction." The

district court found on a sufficient record that while in prison, after pleading guilty,

Mr. Galaviz engaged in a conspiracy to murder Ubeldo Lopez-Gonzalez, who was

a confidential informant in the case. The district court also found, again on a

sufficient record, that Mr. Galaviz's motive for entering the conspiracy was to

retaliate against Mr. Lopez for his cooperation with the government. But because

Mr. Galaviz had already pleaded guilty, he could not have intended to obstruct justice

"with respect to the instant offense" by plotting to kill Mr. Lopez unless he thought

that Mr. Lopez was going to testify against him atsentencing, and that indeed wasthe

government's theory in the first brief that it filed in this court. The infirmity of this

position is that the record will not support a finding that Mr. Galaviz had reason to

think that Mr. Lopez would be a witness against him at sentencing.

The dissent suggests that we are intimating that "a probability that the

government could call the confidential informant at a sentencing hearing is

insufficient to establish" an enhancement for obstruction of justice if the defendant

conspires to kill the confidential informant. On the contrary, though that case is not

before us, a probability that a witness would be called at sentencing might well

support an inference that a defendant's effort to have the probable witness killed was

motivated by a desire to eliminate the witness's testimony. But the record in this case

does not support the premise that it was probable that Mr. Lopez would testify at the

time Mr. Galaviz entered into the conspiracy to kill him or during the time when

Mr. Galaviz wasinvolved in the conspiracy. Any inference thatsuch a premise might

support must therefore fail. The district court, moreover, never found that the

premise existed, partly because the government never asked it to do so.

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In a supplemental submission, the government changes its argument and now

for the first time maintains that a general retaliatory motive that relates to the offense

of conviction is sufficient to trigger the enhancement. The difficulty with this

contention is that, as relevant here, the guideline specifically requires a willful

attempt to obstruct the sentencing process for it to be applicable. The government

draws our attention to United States v. Wahlstrom, 588 F.3d 538, 542-46 (8th Cir.

2009), which involved a defendant's threat to kill the wife of the AUSA who was

prosecuting his case. But that case is different fromours, because a defendant's threat

to a prosecutor or his family could well affect or hinder the prosecution of the

defendant's case, or, at least, a defendant might think so. Here, there is no evidence

that retaliation would impede the progress of Mr. Galaviz's case in any way, or that

he could have thought that it would.

Mr. Galaviz can of course be prosecuted by a proper authority for plotting to

kill Mr. Lopez. But the sentencing enhancement does not apply because there is no

showing that the plot was intended to obstruct justice on the instant offense of

conviction.

We therefore reverse the sentence and remand for further proceedings.

SMITH, Circuit Judge, dissenting. 

The majority holds that the district court erred in finding that Galaviz

obstructed justice by participating in a conspiracy to kill the government's

confidential informant and principal witness in the prosecutorial process used to

convict Galaviz and who provided testimony at Galaviz's subsequent sentencing

hearing. The court thus interprets U.S.S.G § 3C1.1 in such manner that it cannot be

used to enhance a defendant's sentence for obstruction of justice for conspiring to

murder the government's principal witness because Galaviz's motive was simply

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retaliation for the witness being a snitch and not an effort to prevent the witness's 1

availability for his pending sentencing hearing. Because I believe that the district

court did not err in finding that Galaviz's attempt to kill the government's confidential

informant amounted to an obstruction of justice, I respectfully dissent.

The court finds that the government did not prove that Galaviz knew the

witness would testify at his sentencing hearing and thus could not have intended to

obstruct or impede the sentencing for his offense of conviction. The majority thus

makes and then accepts a better argument for reversal than Galaviz made for himself.

Galaviz's brief and supplemental brief argue that no obstruction took place because

the investigation was complete; he had already pleaded guilty and in his words, "the

attempted threat of harm to a witness would have had no impact on the case against

Galaviz at the time the conduct occurred." He concludes his argument by stating,

"assuming that there is sufficient evidence to show that Galaviz obstructed or

attempted to obstruct justice, such actions would have had no effect on the

investigation, prosecution or sentencing of the offenses of conviction in this case as

is required by U.S.S.G. § 3C1.1." Yet, Galaviz acknowledges that he participated in

conversations with a co-conspirator two weeks before the sentencing hearing

regarding an attempt to kill a confidential informant. Galaviz's argument fails to take

into account that an actual obstruction need not have occurred because the

enhancement applies to attempts as well as completed crimes. We have stated, "[a]n

attempt to intimidate or threaten a witness, even if unsuccessful, is sufficient to

sustain a two-level enhancement for obstruction of justice." United States v. Carrillo,

380 F.3d 411, 415 (8th Cir. 2004) (quotations and citations omitted). Further, "[t]he

language of § 3C1.1 is broad, and as the commentary recognizes, '[o]bstructive

conduct can vary widely in nature, degree of planning, and seriousness.'" United

States v. Wahlstrom, 588 F.3d 538, 544 (8th Cir. 2009) (quoting U.S.S.G. § 3C1.1

A snitch is a negative slang termoffenders use to describe an informant. White 1

v. Fox, No. 10-40843, 2012 WL 638569 at *6 (5th Cir. Feb 28, 2012).

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n.3). Finally, this circuit upholds the application of an obstruction of justice

enhancement regardless of "whether [the defendant was] motivated by the desire to

impede the proceedings or by vengeance." Id. at 545. 

Planning to murder a potential witness is surely an attempt to affect whatever

phase of a prosecution remains incomplete whether or not it would also serve as

retribution for snitching. But the majority holds that Galaviz must have had intended

to obstruct a specific proceeding, and thus merely agreeing to kill a person that

assisted the government in garnering a conviction in his case is insufficient.

Specifically, the majority finds that the government must prove that Galaviz knew

that the government was going to call the confidential informant at his sentencing

hearing before the district court could apply an obstruction enhancement. In other

words, a probability that the government could call the confidential informant at a

sentencing hearing is insufficient to establish an obstruction of justice charge by a

preponderance of the evidence even if the defendant, by objecting to the PSR, made

it more probable that the government would call the confidential informant. 

I would hold that the district court did not err in concluding that Galaviz could

have intended to obstruct his sentencing hearing by attempting to kill the confidential

informant. At the time he entered the conspiracy, Galaviz's sentencing remained

pending. Galaviz filed an objection to the PSR on April 4, 2011; thus making a

hearing on at least some issues probable. He then subsequently conspired to take the

life ofthe confidential informant who had given incriminating statements against him

that led to Galaviz's guilty plea. Thus, at the time Galaviz entered into the conspiracy

it was probable that the government would have called the confidential informant to

testify at Galaviz'ssentencing hearing (which the informant ultimately did do). In my

view, the fact that Galaviz knew that the confidential informant was a snitch and

2

Galaviz knew that Lopez was a snitch and an important snitch at that because 2

Lopez purchased the gun from Galaviz, which the government used to apply the

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assisted the government in its case against him, and the fact that Galaviz's

proceedings had not yet concluded, satisfies the intent requirement for § 3C1.1. 

The majority's interpretation of § 3C1.1 can lead to anomalous results. For

instance, under the majority's reading of § 3C1.1 intent requirement, if Galaviz

succeeded in killing the government's confidential informant, the district court could

not impose an obstruction ofjustice enhancement although the government eventually

called the confidential informant as a witness at Galaviz'ssentencing hearing. In other

words, had Galaviz succeeded in his plot, the district court would not be able to

impose an obstruction ofjustice enhancement even though Galaviz obstructed justice

in his own case. Thus, the majority's interpretation of § 3C1.1 would disallow

application of an obstruction of justice enhancement in cases where the defendant

may have obstructed justice in his or her own case.

"We review the district court's construction of the advisory guidelines de novo

and its associated factual findings for clear error." United States v. Wisecarver, 644

F.3d 764, 773 (8th Cir. 2011). On this record and briefing, I cannot conclude that the

district court misconstrued the guideline or clearly erred in its factual findings and

therefore respectfully dissent.

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felon-in-possession of a firearm charge. 

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