# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 15-1169

___________________________ United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.
Jacob William Brisbin

lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

____________ Submitted: February 8, 2016

Filed: September 1, 2016 [Unpublished]

____________ Before SMITH, MELLOY, and COLLOTON, Circuit Judges.

____________ PER CURIAM. Defendant Jacob Brisbin pleaded guilty to conspiring to manufacture and distribute methamphetamine by a drug felon. The district court 1 sentenced Brisbin to 420 months in prison. Brisbin appeals, ar guing the district court erred in applying a

1 The Honorable Linda R. Reade, Chief J udge, United States District Court for the Northern District of Iowa.sentencing adjustment for obstruction of justice and denying a reduction for acceptance of responsibility. Brisbin also argues the district court erred when it proposed an alternate sentence. We affirm.

I. Background

A grand jury indicted Brisbin on two counts, including conspiring to manufacture and distribute methamphetamine by a drug felon in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, a nd 851, and manufactu ring and attempted manufacturing of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846, and 851. Pursuant to a plea agreement, Brisbin pleaded guilty to Count I, conspiracy to manufacture and di stribute methamphetamine by a drug felon.

While Brisbin was detained on the inst ant charges, he engaged in several activities with the apparent intent to publicize the identities of the government’s witnesses and cooperators. First, on August 28, 2014, someone posted the names of several witnesses and c ooperators on Brisbin’s brother’s Facebook page. 2Next, while Brisbin was being held at the Linn County Jail, law enforcement intercepted a note Brisbin had written to anothe r inmate. The note containe d an aggressive message to the inmate, who appeared to have cooperated with the gove rnment in the case against Brisbin. 3 Finally, on December 3, 2014, Brisbin made a recorded phone call to his mother. This phone call took place after Brisbin pleaded guilty (October 6, 2014) and

2Brisbin’s brother, Tyler Brisbin, wa s also incarcerated at the time of the Facebook post. Neither brother had access to the Facebook account when information was posted. The district court did not re ly on this conduct in applying the obstruction of justice enhancement.

3 The note read: “Bro that f**ked up my lawyer is bring up your statement your just like [name omitted] I thought you were a friend. No I see your just like ever one else. You want to tell peopl e I jump on your case you might want to get the info right. You’re a bitch and a rat. I send the paper over there”
-2-after the probation office prepared the initia l draft of his Presentence Investigation Report (“PSR”) (November 26, 2014). Brisbi n and his mother discussed his PSR and Brisbin stated, “I’m going to get another copy of [the PSR] a nd I’m going to send it out and put it all over my f**king Facebook.” Brisbin’s mother seemed to agree that if Brisbin gave her a c opy of the PSR, she would “f lash it all over the f**king computer.” After law enforcement listened to this call, a magistrate judge ordered that Brisbin surrender his copy of the PSR. Bris bin’s attorney obtained Brisbin’s copy of the PSR on December 5, 2014, and Brisbin did not send a copy of the document out of the jail.

According to the PSR, the parties agreedthat Brisbin’s minimum offense level would be thirty-four based on the amount of methamphetamine he had manufactured or distributed. The base offense level incr eased by two levels for use of a gun. The parties also stipulated to a two-level e nhancement because Brisbin was an organizer or leader of his drug manufacturing organization. The Probation Officer recommended that Brisbin receive cred it for accepting responsibility and that he receive no enhancement for obstruction of ju stice. This would have resulted in an offense level of thirty-five and criminal history category VI, with a sentencing guidelines range of 292 to 365 months. The government objected to the failure to increase the offense level for obstruction of justice.

At sentencing, the government presented evidence as to Brisbin’s actions while in jail. Ultimately, the district court determined that Brisbin’s recorded telephone conversation with his mother about posti ng his PSR on the internet constituted a substantial step toward obstructing justice by intimidating, unlawfully influencing, or retaliating against government witnesses. Th e district court noted that Brisbin’s note to a fellow cooperating inmate also provided a basis for obstruction of justice. As a result of Brisbin’s obstructive behavior, the district court concluded that Brisbin was not entitled to receive credit for acceptance of responsibility. Based on a total offense level of forty and a criminal history category VI, the district court determined

-3-Brisbin’s guideline sentencing range was 360 months to life in prison. Rejecting Brisbin’s motion for a downward variance, th e district court sentenced Brisbin to 420 months in prison. The district court also imposed 420 months as an alternate sentence identifying the objection to the obstruction of justice enhancement and considering the 18 U.S.C. § 3553(a) factors. Brisbin appeals.

II. Discussion

A. Obstruction of Justice Enhancement

Brisbin argues the district court erred in applying the obstruction of justice enhancement based on the recorded phone call to his mother and the written note to another inmate. We review “a distri ct court’s factual findings underlying an obstruction of justice enhancement for clear error and its construc tion and application of the guidelines de novo.” United States v. Mohamed , 757 F.3d 757, 761 (8th Cir. 2014) (quoting United States v. Mabie , 663 F.3d 322, 334 (8th Cir. 2011)). “Clear error exists when the court is left ‘with th e definite and firm conviction that a mistake has been committed.’” Unit ed States v. Adetiloye , 716 F.3d 1030, 1036 (8th Cir. 2013) (quoting United States v. Lalley , 257 F.3d 751, 758 (8th Cir. 2001)).

The two-level adjustment for Obstructing or Impeding the Administration of Justice applies “[i]f (1) the defendant willf ully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant o ffense of conviction, and (2) the obstructive conduct related to . . . the defendant’s o ffense of conviction.” U.S.S.G. § 3C1.1.

Brisbin challenges the district court’s application of § 3C1.1 in four ways: (1) the evidence does not show Brisbin’s c onduct rose to the le vel of an attempt; (2) there is no evidence to prove a nexus between his allegedly obstructive conduct and his pending sentencing hearing; (3) even if Brisbin took a substantial step toward

-4-posting his PSR on the internet, this conduct does not constitute obstruction of justice; and (4) Brisbin’s note to a cooperating inmate was motivated by anger, not the desire to influence testimony or intimidate the inmate. Considering each of Brisbin’s arguments in turn, we conclude that the di strict court properly applied the obstruction of justice enhancement.

First, Brisbin argues that his conduct di d not constitute an attempt to obstruct justice. As the language of § 3C1.1 suggests, “[a]n atte mpt to intimidate or threaten a witness, even if unsuccessful, is suffici ent to sustain a two-level enhancement for obstruction of justice.” United States v. Vaca , 289 F.3d 1046, 1049 (8th Cir. 2002) (citations omitted). “An attemp t requires (1) an intent to engage in criminal conduct, and (2) conduct constituting a substantia l step toward the commission of the substantive offense which strongly corroborates the actor’s criminal intent.” United States v. Smith , 665 F.3d 951, 955 (8th Cir. 2011) (quoting United States v. Wahlstrom , 588 F.3d 538, 543 (8th Cir. 2009)). “A substantial step is one that is ‘necessary to the consummation of the crime and . . . of such a nature that a reasonable observer, viewing it in context could conc lude that it was undertaken in accordance with a design to commit the substantive offense.’” Id. at 956 (quoting Wahlstrom , 588 F.3d at 543).

In this case, Brisbin’s conduct shows th at he attempted to obstruct justice. Brisbin stated to his mother, “I’m going to get another copy of [the PSR] and I’m going to send it out and put it all over my f**king Facebook.” Brisbin’s mother agreed, “Yeah, you can, I can splash it, I’ll flash it all over the f**king computer.” During the conversation, Brisbin menti oned several govern ment witnesses or cooperators and expressed his desire to harm them. Given the context of Brisbin’s statements about putting his PSR on Facebook, it is reasonable to infer that Brisbin intended to intimidate or threaten people na med in the document. Further, Brisbin’s conduct in recruiting his mother to post his PSR on Facebook cons tituted a substantial

-5-step toward obstructing justice. As such, we conclude that the district court did not err in finding that Brisbin’s c onduct constituted an attempt.

Second, Brisbin contends there was no nexus between his a llegedly obstructive actions and his sentencing because, even if he had been successful in posting his PSR on Facebook, it would not have made a differe nce in his sentencing hearing. Section 3C1.1(1) requires that the obstructive conduct occur with “respect to the investigation, prosecution, or sentencing of the instant o ffense of conviction.” In United States v. Galaviz , 687 F.3d 1042 (8th Cir. 2012), after th e defendant entered a guilty plea he conspired to murder a confidential informant. Id. at 1043. We held that the obstruction of justice enhancement did not apply because the defendant had already pleaded guilty and the record did not support a finding that the defendant believed the informant would testify at sentencing. We concluded the defe ndant “could not have intended to obstruct justice ‘with respect to the instant offense’ by plotting to kill [the informant] unless he thought [the informant] was going to testify against him at sentencing.” Id. We suggested that, although “the enhancement does not apply,” the defendant could be prosecuted for plotting to kill the informant. Id.

This case can be distinguished from Galaviz in at least two ways. First, Brisbin’s obstructive conduct occurred withinthe PSR-objection period. The draft PSR was filed on November 26, 2014; Bris bin’s recorded phone call to his mother occurred on December 3, 2014; a nd the parties’ objections to the PSR were filed on December 9 and 10, 2014. Withinthis context, Brisbin coul d have believed, but could not have known what disput ed facts the government would be required to prove at sentencing and whether the witnesses name d in the PSR would testify. Second, because Brisbin’s offense of conviction was a conspiracy, at least some of the people named in his PSR were necessarily involved in the criminal activity. Because Brisbin attempted to intimidate his co-conspirators and affect their possible testimony, we conclude that the district court did not err in finding the requisite nexus.

-6-Third, Brisbin argues that, even if he successfully posted his PSR on Facebook, his conduct would not constitute obstruction of justice. As discussed in Application Note 4(A), “threatening, intimidating, or otherwise unlawfully influencing a . . . witness . . . , directly or indirectly, or attempting to do so” triggers the obstruction of justice sentencing enhancement. U.S.S .G. § 3C1.1 cmt. 4(A). The government presented testimony to support a conclu sion that posting a PSR on Facebook would likely place the named witnesses in danger, and the district court found that posting a PSR on Facebook would have the effect of intimidating witnesses who were named in the document. On review, “[w]e will not second guess [the district court’s] judgment” as to witness credibility. Wahlstrom , 588 F.3d at 542. Therefore, we conclude that the district court did not err in finding Brisbin’s conduct constituted obstruction of justice.

Finally, Brisbin argues that his note to a cooperating inmate, which the district court also relied upon in finding that Bris bin obstructed justice, did not constitute obstruction of justice. As discussed above, Application Note 4(A) encompasses conduct toward a witness that is threaten ing or intimidating. A law enforcement witness at Brisbin’s sentencing hearing c oncluded the note was a threat intended “to influence [the cooperating inmate’s] testimony and cooperation with the government.” We are not certain the note alone would c onstitute obstructive conduct. The district court, however, did not err in using this conduct as additional s upport for applying the obstruction of justice enhancement.

B. Alternate Sentence

Brisbin also argues that the district court erred in imposing an alternate sentence of 420 months. Specifically, Brisbin contends that, assuming the district court erred in imposing the obstruction of justice e nhancement and elimin ating the acceptance of responsibility adjustment, a 420-month sent ence would be substantively unreasonable in light of the 18 U.S.C. § 3553(a) factors. “We review the substantive reasonableness

-7-of the overall sentence under an abuse of discretion standard.” United States v. Sayles , 674 F.3d 1069, 1072 (8th Cir. 2012).

Because we conclude that the districtcourt properly calculated the sentence pursuant to the guidelines and did not e rr in applying the obstruction of justice enhancement, we need not consider wh ether the alternate proposed sentence was reasonable. To the extent Brisbin argues the sentence actually imposed was substantively unreasonable, we also concludethat the district court did not abuse its discretion. Because the sentence was within the advisory guideline range of 360 months to life in prison, we presume thatthe sentence was reasonable. United States v. Avalos , 817 F.3d 597, 602 (8th Cir. 2016). Further, evaluating the § 3553(a) factors, the district court found that Bris bin’s extensive criminal history and the seriousness of the instant offense justified a sentence of 420 months. Accordingly, we hold that the district court did not abuse its discretion.

III. Conclusion

Based on the foregoing, we affirm the judgment of the district court.

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