United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-3241

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Markietta Harvey, *

* [UNPUBLISHED]

*

Appellant. *

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Submitted: April 15, 2011

Filed: August 8, 2011

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Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.

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PER CURIAM.

Markietta Harvey pled guilty to conspiracy to defraud, in violation of 18 U.S.C.

§ 371, and aggravated identify theft, in violation of 18 U.S.C. § 1028A. The district

court sentenced Harvey to 70 months imprisonment. Harvey appeals her sentence, 1

contending that the district court erred in applying an obstruction of justice

The HonorableRodneyW. Sippel, United States DistrictJudge for the Eastern 1

District of Missouri.
enhancement under the Guidelines. See United States Sentencing Commission,

Guidelines Manual, §3C1.1. We affirm.

I.

Harvey joined an identity-theft ring organized by her boyfriend Stephen

Baldwin. The group opened credit accountsto obtain goods and services under stolen

identities, then sold the fraudulently obtained items for cash. To accomplish this,

group members were provided with a counterfeit state identification card and the

personal information of the individual whose identity had been stolen. Several group

members would travel together from Illinois to Missouri to open accounts and obtain

merchandise. While on one such trip, Harvey and the other group members were

apprehended. 

Harvey pled guilty to aggravated identity theft and conspiracy to defraud. For

the aggravated identity theft count, the district court imposed the statutorilymandated

24 months imprisonment, see 18 U.S.C. § 1028A(a)(1), (b)(2). For the conspiracy to

defraud count, the district court calculated an adjusted offense level of 17, then added

two levels for obstruction of justice under section 3C1.1. Based on an offense level

of 19 and a criminal history category IV, the court calculated a Guidelines range of

46 to 57 months imprisonment and imposed a sentence of 46 months to be served

consecutively with the 24-month term. 

II.

Harvey challenges the district court’s decision to impose the obstruction of

justice enhancement, contending that the district court erred in finding that she

attempted to intimidate a witness in her case because none of the Government’s

proffered evidence showed intent. We defer to the district court’s decision to impose

an obstruction of justice enhancement unless the court makes insufficient findings. 

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United States v. Cunningham, 593 F.3d 726, 730 (8th Cir. 2010). “The district court

must find the predicate facts supporting an enhancement for obstruction of justice by

a preponderance of the evidence, and we review those findings for clear error.” 

United States v. Montes-Medina, 570 F.3d 1052, 1061 (8th Cir. 2009). 

The obstruction of justice enhancement applies when 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.” U.S.S.G. §3C1.1. The commentary to section 3C1.1 explains

that “threatening, intimidating, or otherwise unlawfully influencing” a witness

“directly or indirectly, or attempting to do so,” is conduct that warrants the

obstruction of justice enhancement. U.S.S.G. §3C1.1 comment. (n.4). 

Based on the testimony of Terrick Harvey, Harvey’s brother and one-time

member of the identity-theft ring, the district court found that Harvey attempted to

intimidate Terrick. The testimony reflected that Harvey sent a letter to Otis Morgan,

one of Terrick’s fellow inmates in the Phelps County Jail, and informed him that

Terrick planned to testify against her. Morgan then approached Terrick and warned

him against testifying because doing so would jeopardize Terrick’s safety. The

district court credited Terrick’s testimony, and the “court’s assessment of witness

credibility is virtually unassailable on appeal.” United States v. Harris, 493 F.3d 928,

932 (8th Cir. 2007). 

Harvey nevertheless contendsthat Terrick’s testimonywasinsufficient to prove

Harvey’s intent because it only showed that Harvey sent the letter, not that she

intended to intimidate or threaten Terrick by doing so. This argument fails, however,

because we have long held that intent may be proven with circumstantial evidence. 

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See United States v. Dvorak, 617 F.3d 1017, 1023-24 (8th Cir. 2010), cert. denied,

131 S. Ct. 1539 (2011). Accordingly, the district court did not clearly err.2

In addition, we modify the judgment in this case to correct a clerical error;

Harvey is guilty of violating 18 U.S.C. § 371, rather than “18 U.S.C. § 3711.” See

28 U.S.C. § 2106 (providing that an appellate court may modify any judgment

brought before it for review). 

III.

We affirm the sentence imposed by the district court and modify the judgment

to reflect that Harvey is guilty of violating 18 U.S.C. § 371.

______________________________

We do not reach Harvey’s additional argument regarding acceptance of

2

responsibility because it is predicated on the reversal ofthe district court’s application

of the obstruction of justice enhancement, and Harvey acknowledges that hers is not

an “extraordinary case” warranting the application of both the obstruction of justice

enhancement and the acceptance of responsibility reduction, see U.S.S.G. §3E1.1

comment. (n.4).

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