IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50200

UNITED STATES OF AMERICA,

Plaintiff–Appellee

v.

CHRISTOPHER L ALEXANDER,

Defendant–Appellant

Appeal from the United States District Court

for the Western District of Texas

Before JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Christopher L. Alexander appeals the district court’s application of a twopoint increase for obstruction of justice under § 3C1.1 of the U.S. SENTENCING

GUIDELINES (“U.S.S.G.”). Alexander argues that the obstruction of justice

enhancement was not warranted because the obstructive conduct did not relate

to the drug offense for which he was convicted. Alexander also argues that he

could not have intended to disrupt the federal investigation because he was in

custody for state charges at the time of the obstructive conduct and the federal

investigation had not yet begun. We find Alexander’s arguments unpersuasive.

United States Court of Appeals

Fifth Circuit

F I L E D

March 31, 2010

Charles R. Fulbruge III

Clerk

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No. 09-50200

 Alexander also argues that the district court should have granted a downward 1

adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. Alexander concedes,

however, that if the district court properly applied the obstruction of justice adjustment, then

it correctly denied the acceptance of responsibility adjustment. We express no opinion on

whether Alexander presents extraordinary circumstances that would justify finding

acceptance of responsibility despite his obstruction of justice. United States v. Rodriguez, 942

F.2d 899, 902–03 (5th Cir. 1991) (holding that “this is not one of those extraordinary cases in

which adjustments under both §§ 3C1.1 and 3E1.1 may apply”). Because Alexander’s sole

argument depends upon our reversal of the obstruction of justice adjustment, we affirm as to

acceptance of responsibility as well.

 Smith is currently serving a sixty month sentence for possession of more than three

2

grams of cocaine base.

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Thus, we affirm his sentence. 

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I. FACTUAL AND PROCEDURAL BACKGROUND

Austin Police Department (“APD”) officers arrested Alexander after

finding cocaine base in his car during a traffic stop. While in jail, Alexander

called his father and directed him to remove three firearms from his bedroom

and deliver at least one of them to Trinity Duke Smith, a known drug dealer.

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Several years prior, Alexander was a passenger in Smith’s car when the police

found 0.28 grams of cocaine base and $3,000 in cash on Smith. State authorities

did not press charges based on that incident, however. 

Unbeknownst to Alexander, the jail recorded his conversation with his

father, and APD detectives reviewed the tapes several weeks later. The

detectives obtained consent from Alexander’s father to search and found two of

the firearms in Alexander’s bedroom and recovered the other firearm from

Alexander’s girlfriend. The APD brought this case to the attention of the United

States Attorney’s Office around the time that Alexander made the phone call to

his father. Federal investigation resulted in an indictment several weeks later.

Alexander pled guilty to possession with intent to distribute more than

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fifty grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). The probation

office recommended in the Presentence Investigation Report (“PSR”) increasing

Alexander’s base offense level by two levels under § 3C1.1 for obstruction of

justice based on the call he made to his father directing him to move the

firearms, and recommended denying an adjustment for acceptance of

responsibility under § 3E1.1. Alexander objected to the PSR, claiming that the

obstructive conduct did not relate to his crime of conviction. Alexander also

objected to the denial of a decrease for acceptance of responsibility, arguing that

it should apply if the obstruction of justice adjustment did not. The district court

adopted the recommendations in the PSR and found an adjusted offense level of

thirty-two, which, combined with a criminal history category of V, produced a

guideline sentencing range of 188 to 235 months. The district court sentenced

Alexander to 188 months’ imprisonment. Alexander timely appealed his

sentence.

II. DISCUSSION

A. Standard of Review

We review a district court’s interpretation or application of the Sentencing

Guidelines de novo, but review its factual findings for clear error. United States

v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008). “There is no clear error if the

district court’s finding is plausible in light of the record as a whole.” Id. (citing

United States v. Harms, 442 F.3d 367, 378 (5th Cir. 2006)). “‘The [PSR] is

considered reliable evidence for resentencing purposes.’” United States v.

Reasor, 541 F.3d 366, 369 (5th Cir. 2008) (quoting United States v. Clark, 139

F.3d 485, 490 (5th Cir. 1998)). The district court is free to adopt the factual

findings within the PSR without further inquiry if the defendant does nothing

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 The obstruction of justice guideline was amended in 2006, replacing “during the

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course of” with “with respect to.” U.S.S.G. § 3C1.1, supp. to app. C, amend. 693 (2006).

Alexander cites United States v. Brown, 470 F.3d 1091, 1094–96 (5th Cir. 2006) for the

proposition that actions occurring before the commencement of the federal investigation

cannot serve as the basis for U.S.S.G. §.3C1.1 enhancement. However, we decided Brown

under the pre-Amendment version of the guideline’s requirement that the obstruction conduct

occur “during the course of an investigation, prosecution, or sentencing of the federal . . .

charge.” Id. at 1096. Brown does not apply here because we must ask whether Alexander

attempted to obstruct justice “with respect to the investigation, prosecution, or sentencing of

the instance offense of conviction.” U.S.S.G. § 3C1.1.

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to rebut the information contained in the PSR. Id..

B. U.S.S.G. § 3C1.1 

U.S.S.G. § 3C1.1 provides that:

If (A) the defendant willfully obstructed or impeded, or attempted

to obstruct or impede, the administration of justice with respect to

the investigation, prosecution, or sentencing of the instant offense

of conviction, and (B) the obstructive conduct related to (i) the

defendant’s offense of conviction and any relevant conduct; of (ii) a

closely related offense, increase the offense level by 2 levels.”

Obstructive conduct occurring before the commencement of the federal

investigation may be covered “if the conduct was purposefully calculated, and

likely, to thwart the investigation or prosecution of the offense of conviction.”3

U.S.S.G. § 3C1.1 cmt. n.1. 

Alexander concedes that he asked his father to move the firearms because

he thought that authorities would search his residence. However, Alexander

argues that his conduct only related to the state proceeding. Alexander argues

that at the time he made the phone call he was not aware of the federal

investigation, and thus he could not have willfully attempted to obstruct the

federal investigation of the offense of conviction. Alexander also argues that the

plain language of U.S.S.G. § 3C1.1 prevents its application because it only

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 The First, Second, Third, Fourth, Sixth, Eighth, Ninth, Tenth and Eleventh Circuits 4

have all held that obstruction of a state investigation based on the same facts as the eventual

federal conviction qualifies for enhancement under U.S.S.G. § 3C1.1. United States v.

Contreras, 506 F.3d 1031, 1039 (10th Cir. 2007); United States v. Ayers, 416 F.3d 131, 134 (2d

Cir. 2005); United States v. Frasier, 381 F.3d 1097, 1099–1100 (11th Cir. 2004); United States

v. Roberts, 243 F.3d 235, 237–38 (6th Cir. 2001); United States v. Imenec, 193 F.3d 206, 209

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applies to obstructive conduct relating to the instant offense of conviction, here,

possession of cocaine base. 

We find U.S.S.G. § 3C1.1(A) satisfied. Although the federal investigation

may not have been underway when he made the phone call, we have previously

held in an unpublished opinion that obstruction of a state investigation based

on the same facts as the eventual federal conviction qualifies for enhancement

even if the obstructive conduct occurred before federal authorities commenced

their investigation. See United States v. Upchurch, 88 F. App’x 794, 796 (5th

Cir. 2004) (per curiam) (unpublished) (applying U.S.S.G. § 3C1.1 where a

defendant attempted to persuade her victim to recant and the federal

investigation had not yet begun because she was attempted to obstruct any

investigation into the conduct at issue). 

We adopt Upchurch’s reasoning, and find that the enhancement applies

when the obstruction of the state investigation is based on the same facts as the

eventual federal conviction, regardless of whether the federal investigation has

commenced. This ruling is based on guideline’s failure to distinguish an

investigation by state officials from an investigation by federal officials, and

“recognize[s] that state officers are authorized to and frequently do investigate

criminal conduct that ultimately is prosecuted under federal law.” United States

v. Self, 132 F.3d 1039, 1042–43 (4th Cir. 1997). In so holding, we join nine of our

sister circuits. Here, the state investigation arose out of Alexander’s possession 4

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(3d Cir. 1999); United States v. Luca, 183 F.3d 1018, 1022–23 (9th Cir. 1999); Self, 132 F.3d

at1042–43; United States v. Adediran, 26 F.3d 61, 65 (8th Cir. 1994); United States v. Emery,

991 F.2d 907, 911–12 (1st Cir. 1993). Only the Seventh Circuit has held that obstruction of

a state proceeding does not qualify. United States v. Perez, 50 F.3d 396, 398–400 (7th Cir.

1995). However, Perez relied at least in part “on the temporal requirement of Rule 3C1.1 that

the obstructive conduct occur ‘during’ the investigation, prosecution, or sentencing of the

instant offense,” id. at 399, which has since been amended. The Seventh Circuit has not cited

Perez since the 2006 amendment.

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of cocaine base, also served as the basis for Alexander’s federal conviction. We

therefore find that Alexander attempted to obstruct the investigation of the

instant offense.

Alexander also argues that the direction to hide the firearms was not

sufficiently related to his offense of conviction, possession of cocaine base. We

disagree. The PSR contains findings that Alexander asked his father to give at

least one of the firearms to Smith, a known drug dealer, and that Alexander was

a passenger in Smith’s vehicle when police found cocaine base. Alexander did

not rebut these findings; thus, the district court was free to adopt them. See

Reasor, 541 F.3d at 369. We need not determine how closely the obstructive

conduct must relate to the conduct ultimately charged because the link is clearly

present in this case: Alexander directed his father to give a firearm to Smith, a

known drug dealer, with whom Alexander had previously associated in a drugrelated incident. See United States v. Roberson, 872 F.2d 597, 609–10 (5th Cir.

1989) (declining to decide the required nexus between obstructive conduct and

the instant offense because the link was clearly present and “the district court

found that Roberson was trying to obstruct investigation of all of his conduct,

without regard for which offenses he was concealing”). We therefore find that

Alexander’s conduct related to the “offense of conviction and any relevant

conduct” under U.S.S.G. § 3C1.1.

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III. CONCLUSION

We find that the district court properly applied the obstruction of justice

adjustment. We therefore affirm Alexander’s sentence.

AFFIRMED.

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