UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Criminal No. 13-227 (CKK)

MEMORANDUM OPINION

(May 9, 2016) 

On August 13, 2013, Defendant Vernon Hawkins pled guilty to one count of Making a 

False Statement in violation of 18 U.S.C. § 1001. Presently before the Court are the [58] Final 

Presentence Investigation Report filed by the United States Probation Office, the Government’s 

[63] Memorandum in Aid of Sentencing, Defendant’s [65] Memorandum in Aid of Sentencing, 

the Government’s [70] Reply Memorandum in Aid of Sentencing, and Defendant’s [72] Response 

to the Government’s Memorandum in Aid of Sentencing, each of which addresses the issue of the 

appropriate calculation under the United States Sentencing Guidelines (“U.S.S.G.”) that the Court 

should consider in imposing its sentence. Given the legal issues raised in the parties’ briefing on 

this issue, the Court is now rendering its decision in writing in advance of the sentencing hearing 

in order to explain the legal basis for the Court’s decision regarding the application of the 

guidelines to this action. 

For the reasons described herein, the Court has determined that Defendant’s base offense 

level should be calculated pursuant to U.S.S.G. §§ 2B1.1(c)(3) & 2J1.2(a), and, therefore, is 14. 

Moreover, the Court finds that the parties have presented factual disputes that must be resolved in 

order to determine whether the Court should apply an upward adjustment for obstruction of justice 

UNITED STATES OF AMERICA, 

 v. 

VERNON HAWKINS, 

 Defendant. 
2 

pursuant to U.S.S.G. § 3C1.1 and/or a downward adjustment for acceptance of responsibility 

pursuant to U.S.S.G. § 3E1.1(a). As such, the Court shall reserve ruling on these factual disputes 

until the sentencing hearing.

BACKGROUND

On August 13, 2013, Defendant pled guilty to a one-count Information, charging Defendant 

with a Making a False Statement in violation of 18 U.S.C. § 1001. See Information, ECF No. [1].

As described in the Information, on or about December 2011, Defendant gave a person (“Person 

One”) funds that Defendant received from another criminal defendant pending sentencing before 

this Court, in order to persuade Person One to leave town for an extended period of time, so that 

Person One would be unavailable to speak with federal agents in the FBI’s investigation into a Get 

Out of the Vote (“GOTV”) effort funded by a particular executive in support of a 2010 mayoral 

campaign. Id. However, on or about August 16, 2012, Defendant did knowingly and willfully 

make materially false, fictitious, and fraudulent statements and representations to FBI special 

agents by stating that: (1) “he did not know of anyone asked or told to go out of town who had 

been involved with” the 2010 mayoral campaign or the GOTV initiative at issue; (2) “he never 

requested for anyone to leave town so that they could not come to the U.S. Attorney’s Office or 

speak with federal agents”; and (3) “he did not help or assist with sending anyone out of town so 

that they would not be able to speak with federal agents in the FBI’s investigation” of the GOTV 

effort. Id. 

Pursuant to the plea agreement, the parties specifically reserved the right to litigate at 

sentencing which sentencing guideline1 is applicable to Defendant’s conduct. Plea Agmt. at 3, 

 1 Pursuant to the parties’ plea agreement, the 2012 edition of the U.S. Sentencing 

Commission’s Guidelines Manual is applicable in this action. As such, all references to the 
3 

ECF No. [6]. During the plea hearing, the Court specifically set forth both the Government’s and 

Defendant’s view as the applicable guideline(s) and the related base offense level that would apply

under each calculation. Tr. 53:9—56:6 (Aug. 13, 2013), ECF No. [20]. Defendant indicated on 

the record that he had discussed with counsel the parties’ differing positions regarding the 

application of the guidelines. Id. 54:11, 54:17, 56:6. 

As previously mentioned, both parties and the U.S. Probation Office now have provided 

the Court with briefing more fully explaining their respective guideline calculations and the bases 

for those calculations. The Court shall briefly set forth the differing positions as to the appropriate 

guideline calculation in this case. The following chart highlights the areas of dispute between the 

various calculations before the Court: 

U.S. PROBATION 

OFFICE

GOVERNMENT DEFENDANT

Base offense level 14

(U.S.S.G. §§ 2B1.1(c)(3) 

& 2J1.2)

14

(U.S.S.G. §§ 2B1.1(c)(3) 

& 2J1.2)

6

(U.S.S.G. § 2B1.1(a)(2))

Adjustment for 

Obstruction of 

Justice

0 +2

(U.S.S.G. § 3C1.1)

0

Acceptance of 

Responsibility

-2

(U.S.S.G. § 3E1.1(a))

0 -2

(U.S.S.G. § 3E1.1(a))

TOTAL OFFENSE 

LEVEL

12 16 4

 

As such, the Court must first resolve the applicable base offense level, and then must determine 

whether to apply an upward adjustment for obstruction of justice and/or a downward adjustment 

for acceptance of responsibility. The Court shall address each issue in turn. 

 

U.S.S.G. throughout this Memorandum Opinion shall refer to the 2012 edition unless otherwise 

noted. 
4 

DISCUSSION

A. Base offense level

The first issue before the Court is whether Defendant’s base offense level is properly 

calculated pursuant to U.S.S.G. § 2B1.1(a)(2), as Defendant asserts, or whether the cross-reference 

provision of U.S.S.G. § 2B1.1(c)(3) is applicable. The parties generally agree that U.S.S.G. § 

2B1.1 (fraud guideline) is the starting point for the analysis of a violation of 18 U.S.C. § 1001. 

Defendant argues that the Court should apply U.S.S.G. § 2B1.1(a)(2), which provides that the base 

offense level for a defendant convicted of an offense of fraud and deceit is 6. However, the 

Government and the U.S. Probation Office assert that the cross-reference provision of U.S.S.G. § 

2B1.1(c)(3), is applicable in this instance. Pursuant to U.S.S.G. § 2B1.1(c)(3), if the defendant is 

convicted under a statute proscribing false, fictitious, or fraudulent statements or representations 

generally, such as 18 U.S.C. § 1001, and “the conduct set forth in the count of conviction 

establishes an offense specifically covered by another guideline in Chapter Two (Offense 

Conduct),” the Court should apply that other guideline.2 Application Note 15 to U.S.S.G. § 2B1.1 

explains: 

Subsection (c)(3) provides a cross reference to another guideline in Chapter Two 

(Offense Conduct) in cases in which the defendant is convicted of a general fraud 

statute, and the count of conviction establishes an offense involving fraudulent 

conduct that is more aptly covered by another guideline. Sometimes, offenses 

involving fraudulent statements are prosecuted under 18 U.S.C. § 1001, or a 

similarly general statute, although the offense involves fraudulent conduct that is 

also covered by a more specific statute.

 2 The parties do not dispute that the third requirement to apply the cross-reference provision 

has been met in this case, i.e. the offense did not involve a firearm, destructive device, explosive 

material, or controlled substance, nor did it involve arson or property damage by use of explosives. 

See U.S.S.G. § 2B1.1(c)(3). 
5 

U.S.S.G. § 2B1.1 application n.15 (2012).3 Based on the cross-reference provision, the 

Government and the U.S. Probation Office assert that Defendant’s conduct is more aptly covered 

by U.S.S.G. § 2J1.2, the guideline for obstruction of justice. Pursuant to U.S.S.G. § 2J1.2(a), the 

base offense level for an obstruction of justice offense is 14. 

The parties raise two issues central to their respective positions. First, the parties dispute 

whether the Court may look only to the charging document, in this case the Information filed on 

August 12, 2013, or whether the Court may consider other evidence in the record, including the 

facts set forth in Statement of the Offense to which Defendant stipulated as part of his plea, in 

order to determine whether Defendant’s conduct satisfies all the elements of an obstruction of 

justice charge such that the cross-reference provision of U.S.S.G. § 2B1.1(c)(3) is applicable.4

Second, the parties dispute whether Defendant’s conduct meets the statutory requirements of 

various obstruction of justice offenses when applying either the more or less restrictive view of 

what conduct the Court may consider. For the reasons described herein, the Court shall consider 

conduct specifically related to the offense of conviction in the Statement of the Offense and in the 

charging document to which Defendant pled guilty in order to determine whether the crossreference provision U.S.S.G. § 2B1.1(c)(3) is applicable. However, the Court finds that even if it 

only looks to the conduct set out in the count of the Information to which Defendant pled, 

Defendant’s conduct satisfies all the elements of an obstruction of justice offense pursuant to 18 

 3 In the current version of the guidelines, this language appears at U.S.S.G. § 2B1.1 

application n.16 (2015). 

4 In this instance, Defendant pled guilty to a one-count Information. As such, in its analysis, 

the Court discusses the “charging document” or “Information” broadly without distinguishing the 

“count of conviction” because Defendant pled to the entirety of the charging document. If there 

had been other counts that were dismissed as part of the plea, the Court would only consider the 

counts to which Defendant actually was convicted. 
6 

U.S.C. § 1512(b)(3). Moreover, considering Defendant’s conduct as stipulated to in the Statement 

of the Offense, the Court finds that Defendant’s conduct also is sufficient to satisfy the elements 

of offenses pursuant to 18 U.S.C. §§ 1503 and 1512(c)(2). 

1. The Court shall consider both the offense conduct in the Information and in the 

Statement of the Offense.

The Court first turns to the issue of whether it may only look to the conduct set out in the 

Information, or whether it may consider other proven conduct related to the offense of conviction

when determining whether Defendant’s conduct establishes an offense specifically covered by the 

obstruction of justice guideline (U.S.S.G. § 2J1.2). At issue is the language of the cross-reference 

provision of U.S.S.G. § 2B1.1(c)(3) that provides, in relevant part, that it is applicable when “the 

conduct set forth in the count of conviction establishes an offense specifically covered by another 

guideline in Chapter Two (Offense Conduct) . . . .” U.S.S.G. § 2B1.1(c)(3) (emphasis added). 

Defendant argues that the language of the provision limits the Court’s inquiry into the conduct set 

forth in the charging document. Def.’s Mem. in Aid of Sent’g at 4-7. The Government argues 

that the language merely limits the Court’s inquiry to any offense conduct, as opposed to any

relevant conduct, whether it be in the charging document or in other evidence before the Court as 

long as it is related to the offense of conviction. Govt.’s Mem. in Aid of Sent’g at 25-28. For the 

reasons described herein, the Court agrees with the Government that it may consider both the 

offense conduct in the Information and in the Statement of the Offense in this matter. 

a. Plain meaning and history of U.S.S.G. 2B1.1(c)(3) support considering 

offense conduct beyond that in the charging document.

The cross-reference provision of U.S.S.G. 2B1.1(c)(3) became effective on November 1, 

2001, pursuant to Amendment 617 to the guidelines. Prior to Amendment 617, the application 

note to the fraud guideline provided: “Where the indictment or information setting forth the count 
7 

of conviction (or a stipulation as described in § 1B1.2(a)) establishes an offense more aptly 

covered by another guideline, apply that guideline rather than [the fraud guideline].” U.S.S.G. § 

2F1.1, application n.14 (2000) (amended 2001) (emphasis added). Amendment 617 made the 

cross-reference provision a part of the actual guideline rather than a reference in the application 

note. Notably, the Amendment also struck the reference to the “indictment or information” in the 

newly enacted cross-reference provision of § 2B1.1(c)(3) and removed any reference to the 

language of § 1B1.2, which discusses the use of a stipulation made as part of a plea agreement. At 

that time, U.S.S.G. § 1B1.2 explained: “[I]n the case of a plea agreement (written or made orally 

on the record) containing a stipulation that specifically establishes a more serious offense than the 

offense of conviction, determine the offense guideline section in Chapter Two applicable to the 

stipulated offense.” U.S.S.G. § 1B1.2(a) (2000). As the Government notes, the application notes 

to U.S.S.G. § 1B1.2 also were amended effective November 1, 2001, to clarify when the Court 

should apply the guideline for a stipulated offense. Specifically, the Sentencing Commission 

explained: “A factual statement or a stipulation contained in a plea agreement (written or made 

orally on the record) is a stipulation for purposes of subsection (a) only if both the defendant and 

the government explicitly agree that the factual statement or stipulation is a stipulation for such 

purposes.” U.S.S.G. app. C, Amend. 613 (emphasis added). 

The general purpose of the revisions in Amendment 617 was explained by the U.S. 

Sentencing Commission: 

The amendment includes a new cross reference (subsection (c)(3)) that is more 

generally applicable and intended to apply whenever a broadly applicable fraud 

statute is used to reach conduct that is addressed more specifically in another 

Chapter Two guideline. Prior to this amendment, the fraud guideline contained an 

application note that instructed the user to move to another, more appropriate 

Chapter Two guideline, under specified circumstances. Although this note was not 

a cross reference, but rather a reminder of the principles enunciated in §1B1.2, it 
8 

operated like a cross reference in the sense that it required use of a different 

guideline. 

U.S.S.G. app. C, Amend. 617. 

Both parties contend that the history of Amendment 617 supports their position in this case. 

Defendant focuses on the Sentencing Commission’s exclusion of the reference to U.S.S.G. § 

1B1.2, the provision discussing facts in the stipulation, in support of its argument that the Court 

may only look to the conduct described in the charging document. The Government argues that 

the removal of the specific reference to the indictment or information from the cross-reference 

provision bolsters its argument that the Court may look at any offense conduct, not just that in the 

charging document. Moreover, the Government argues that the reference to § 1B1.2 was 

eliminated by the Sentencing Commission because § 1B1.2, as amended, allows the parties to 

stipulate to the relevant offense guideline whereas § 2B1.1(c)(3), as amended, allows the Court to

consider the stipulated facts but eliminates the reference to the parties ability to stipulate to the 

relevant offense guideline. Govt.’s Mem. in Aid of Sent’g at 26-27 n.16. 

A plain reading of the language of the guideline does not appear to limit the Court to 

looking only at the conduct set forth in the indictment or information, as Defendant argues. Indeed, 

the language of the provision itself – “the conduct set forth in the count of conviction establishes 

an offense specifically covered by another guideline” – appears to limit the Court’s inquiry only 

to the conduct related to the offense of conviction, as opposed to all relevant conduct including 

conduct underlying other offenses to which a defendant was not convicted. The reference to the 

“conduct set forth in the count of conviction” supports the conclusion that the Court can consider 

conduct stipulated to by Defendant underlying the offense of conviction when determining the 

appropriate guideline to apply under the cross-reference provision. Nothing in the language of the 
9 

§ 2B1.1(c)(3) appears to expressly limit the Court to looking only at the conduct in the charging 

document and, notably, the Sentencing Commission actually eliminated the language referencing 

the indictment or information when it created the cross-reference provision of § 2B1.1(c)(3) at 

issue. Therefore, it appears that if the Commission had sought to limit the Court’s inquiry in the 

way that Defendant argues, it would have left the explicit reference to those documents in the 

provision. Instead, it appears based on the language of the cross-reference provision that the Court 

may consider other facts stipulated to by Defendant that underlie his offense of conviction. As 

such, the Court concludes the language of the cross-reference provision at issue supports the 

Government’s interpretation that the Court may consider offense conduct contained in the 

stipulated facts in the Statement of the Offense. 

b. Cases interpreting U.S.S.G. 2B1.1(c)(3) cited by Defendant are 

distinguishable.

In reaching its conclusion, the Court recognizesthat there are no cases that squarely support 

this Court’s interpretation of § 2B1.1(c)(3) and there are cases that appear to apply § 2B1.1(c)(3) 

in the manner advocated by Defendant. However, the cases cited by Defendant can be 

differentiated factually from the instant action and do not expressly address the nuanced issue 

before this Court. Further, the Court notes that neither party has pointed to any binding authority 

requiring the Court to adopt their respective position as to this issue. However, the Court shall 

nonetheless discuss the cases cited by Defendant that reach a contrary finding and further explain 

its reasoning for not adopting a similar approach. 

In United States v. Genoa, 343 F.3d 578 (2d Cir. 2003), the U.S. Court of Appeals for the 

Second Circuit addressed the applicability of the cross-reference provision of § 2B1.1(c)(3) to a 

defendant who pled guilty to one count of violating 18 U.S.C. § 1001 when he lied to the 
10 

Government during “innocence proffers.” The Second Circuit in its analysis noted that it had 

interpreted the prior version of the cross-reference provision, in force before the enactment of 

Amendment 617, to permit its application in instances when an offense was more aptly covered 

by another guideline even if all the elements of the other offense could not be established. Id. at 

583-84 (quoting United States v. Napoli, 54 F.3d 63, 66-67 (2d Cir. 1995)). After reviewing the 

changes made by Amendment 617 to this provision, the Second Circuit found that the Sentencing 

Commission’s inclusion of the requirement that the conduct alleged in the count of the indictment 

be “specifically covered” by another guideline clarified that “§ 2B1.1(c)(3) is applicable only if 

the elements of another offense are established by conduct set forth in the count of conviction . . . 

.” Genoa, 543 F.3d at 584. However, the Second Circuit ultimately held that Defendant’s conduct 

set forth in the count of the conviction did not establish violations of any obstruction-of-justice 

statutes rendering the cross-reference provision of the fraud guideline inapplicable. Id. at 586. 

While Defendant argues that the Second Circuit’s holding in Genoa definitively establishes that 

the sentencing court should only look at the conduct in the indictment, the Second Circuit’s 

analysis focuses on whether the cross-reference provision is applicable even if all the elements of 

another offense covered by a different guideline are not established. Indeed, as the Second Circuit 

explained: “[T]he plain language of § 2B1.1(c)(3) indicates that § 2B1.1(c)(3) is applicable only 

if the conduct alleged in the count of the indictment of which defendant is convicted establishes 

the elements of another offense.” Id. at 583. As such, while the Second Circuit does discuss “the 

conduct alleged in the count of the indictment,” it does not specifically hold that the Court may 

look only to the conduct in the charging document, and not to other conduct underlying the offense 

of conviction, in order to determine whether all the elements of an offense covered by another 

guideline have been established. 
11 

Other U.S. Court of Appeals addressing the Second Circuit’s holding in Genoa have 

reached differing results.5 In United States v. Bah, 439 F.3d 423 (8th Cir. 2006), the U.S. Court 

of Appeals for the Eighth Circuit citing to Genoa held that the cross-reference provision of § 

2B1.1(c)(3) was inapplicable because the conduct set forth in the count of the indictment to which 

the defendant pled did not establish another offense. The Eighth Circuit found that the plain 

language of § 2B1.1(c)(3) requires that the Court look only to the language in the count of the 

conviction in the indictment. Id. at 427. Importantly, the Eighth Circuit noted this reading of the 

provision was “supported by the language that the United States Sentencing Commission chose to 

exclude from the current version of the section.” Id. at 427 n.3. While the Eighth Circuit noted 

that the Commission excluded the reference to a “stipulation,” it made no mention of the fact that 

the Commission also excluded language specifically referencing the “indictment or information.” 

See id. Similarly, citing to Genoa and Bah, the U.S. Court of Appeals for the Fifth Circuit in 

United States v. Garcia, 590 F.3d 308 (5th Cir. 2009), held that the district court properly applied 

the cross-reference provision of § 2B1.1(c)(3) because the one-count indictment alleged another 

offense. Id. at 316. 

In contrast, the U.S. Court of Appeals for the Eleventh Circuit rejected a defendant’s 

argument that based on Genoa, the district court erred in applying § 2B1.1(c)(3) at sentencing 

because the provision requires that all the elements of another offense be established.6 United 

 5 Defendant cites to United States v. Kim, 95 F. App’x 857 (9th Cir. 2004), an unpublished 

opinion from the U.S. Court of Appeals for the Ninth Circuit in support of its argument. Def.’s 

Mem. in Aid of Sent’g at 4. However, pursuant to Ninth Circuit Rule 36-3, unpublished opinions 

issued prior to 2007 are not precedent. As such the Court has not considered this opinion because 

it is not treated as precedent within that Circuit.

6 The Court has considered this unpublished opinion it is discussion because pursuant to 

Federal Rule of Appellate Procedure 32.1, citation to cases issued on or after January 1, 2007, is 

permissible.
12 

States v. Ochoa, 291 Fed. App’x 265 (11th Cir. 2008), cert. denied 555 U.S. 1203 (2009). 

Specifically, Defendant argued that Amendment 617 narrowed the application of the crossreference provision by adding the “specifically covered” language and removing the “more aptly 

covered” language.7 Id. at 268. The Eleventh Circuit, applying a plain error standard, found that 

the explicit language of the cross-reference provision does not resolve the issue raised by the 

defendant, nor was there any controlling precedent requiring that court to interpret the provision 

as the defendant argued. Id. As such, the Eleventh Circuit affirmed the decision to apply the crossreference provision, finding that the district court had not plainly erred. Id.

Defendant also cites to the U.S. District Court for the Southern District of West Virginia’s 

opinion in United States v. Griffith, 115 F. Supp. 3d 726 (S.D.W.V. 2015), in support of his 

argument that the Court should consider only the conduct set forth in the indictment. In Griffith, 

the district court found that the cross-reference provision of § 2B1.1(c)(3) is only applicable if the 

count of conviction establishes all the elements of an additional offense. Id. at 744. The district 

court reached this conclusion based on the precedent from other courts, including the Second 

Circuit’s holding in Genoa, the plain meaning and the history of § 2B1.1(c)(3), and the purpose of 

the guidelines, i.e., to provide uniformity and predictability. Id. at 740-44. The district court noted 

that requiring the count of conviction to make out all the elements of another offense “is the only 

approach that promotes certainty in the court’s application of the [g]uidelines.” Id. at 743. 

However, in Griffith, the defendant pled guilty to one count of making a false, fictitious, or 

fraudulent statement or representation based on a statement he made to IRS special agents in 

violation of 18 U.S.C. § 1001(a)(2). The 2014 statement that led to the charge of conviction related 

 7

 As previously noted, the “more aptly covered” language remains in application note to § 

2B1.1(c)(3). See U.S.S.G. § 2B1.1 application n.15 (2012). 
13 

to an earlier series of schemes to collect cash kickbacks. Notably, however, in Griffith, the conduct 

at issue that the district court declined to consider in its analysis of the applicability of the crossreference provision of § 2B1.1(c)(3), was conduct that the court had already deemed was not 

relevant conduct. The court held that the conduct at issue, relating to the kickback scheme and 

associated losses, was not relevant conduct because the scheme, even though it was expressly 

referenced in the Information, did not occur during the commission of the offense of conviction (a 

violation of 18 U.S.C. § 1001), in the preparation of that offense, or in the course of attempting to 

avoid detection or responsibility for that offense. Id. at 733. Moreover, the district court found 

that the scheme at issue and the offense of conviction were not part of the same common scheme 

or plan or the same course of conduct. Id. at 736-37. As such, while the district court in Griffith 

only focused on the conduct set forth in the information filed in that case, it declined to consider 

other conduct it deemed as not relevant conduct to the charge of conviction. Id. at 744 (“In this 

case, the Information fails to establish all of the elements for the additional offense of conspiracy 

to commit honest services fraud, such as whether the Scheme involved the use of the mails or 

wires.”). Like the court in Griffith, other district courts have approvingly cited Genoa and Bah as 

standing for the proposition that the Court may look only to language of the indictment or 

information when determining whether the cross-reference provision is applicable. See United 

States v. Rodriguez, 493 F. Supp. 2d 833, 834 (W.D. Tex. 2007) (considering only the conduct 

described in the count of conviction in defendant’s indictment); United States v. Ralph, No. 08-

40051-01, 2008 WL 4911151, at *2-3 (D. Kan. Nov. 13, 2008) (holding that the cross-reference 

provision of U.S.S.G. § 2B1.1(c)(3) was inapplicable when defendant was convicted of a violation 

of 18 U.S.C. § 1001, and the charging document did not establish specific intent required for the 

offense of criminal interference with the right to fair housing). 
14 

Here, the Government raises a slightly different argument than the issue discussed at length 

in some of the earlier cited opinions. The Government’s argument is not that all the elements of 

another offense need not be established in order for the Court to apply the cross-reference 

provision. Rather, the Government argues that the Court need not restrict the inquiry of whether 

another offense was established to the four corners of the charging document. The Government 

contends that the Court should consider the conduct set forth in the Statement of the Offense which 

Defendant admitted to as part of his plea. Stmt. of Offense, ECF No. [5]. As such, it is this Court’s 

view that it addresses a slightly different issue than the one presented in either Genoa and Griffith.

8 

Moreover, as previously discussed, the Court finds nothing in the language of § 2B1.1(c)(3) that 

restricts the Court to only consider the conduct set forth in the Information when, as here, 

Defendant also stipulated to certain conduct as part of his plea agreement. The Court does find, 

however, that its inquiry regarding the applicability of § 2B1.1(c)(3) is limited to offense conduct 

underlying the offense of conviction (18 U.S.C. § 1001), as opposed to all relevant conduct. As 

such, the Court now turns to the issue of whether Defendant’s conduct warrants applying the crossreference provision of § 2B1.1(c)(3). 

2. The offense conduct set forth in the Information and Statement of the Offense 

warrant applying U.S.S.G. § 2B1.1(c)(3) in this action. 

The Court next turns to the issue of whether Defendant’s offense conduct in the 

Information and Statement of Offense establish all the elements of an obstruction of justice offense 

such that the Court should apply the cross-reference provision of U.S.S.G. § 2B1.1(c)(3), and 

calculate Defendant’s base offense level using § 2J1.2 (obstruction of justice guideline). For the 

 8 As previously discussed, the Court does not dispute that other courts applying Genoa 

have expressly only considered conduct set forth in the count(s) of conviction in the charging 

document. 
15 

reasons described, the Court finds looking only at the conduct in the Information, Defendant 

violated 18 U.S.C. § 1512(b)(3). The Court also finds when considering the offense conduct in 

the Information and the Statement of the Offense, that Defendant also violated 18 U.S.C. §§ 1503 

and 1512(c)(2). As such, the Court shall apply the cross-reference provision of § 2B1.1(c)(3), 

when calculating Defendant’s base offense level.

a. Conduct in the Information establishes a violation of 18 U.S.C. § 

1512(b)(3). 

Notwithstanding the Court’s conclusion that it may look at all offense conduct in 

determining which guideline to apply, the Court shall first look only to the conduct set forth in the 

Information. For the reasons described herein, the Court finds that Defendant’s conduct as 

described only in the Information to which he pled establishes all the elements of a violation of § 

1512(b)(3). “To prove a violation of § 1512(b)(3), the government must establish beyond a 

reasonable doubt that the defendant knowingly and willfully (1) engaged in misleading conduct 

toward another person, (2) with the intent to hinder, delay or prevent the communication of 

information to a federal law enforcement officer or federal judge, (3) about the commission or the 

possible commission of a federal crime.” United States v. Veal, 153 F.3d 1233, 1253 (11th Cir. 

1998), cert. denied 526 U.S. 1147 (1999), overruled on other grounds by Fowler v. United States, 

131 S. Ct. 2045 (2011) as recognized in United States v. Chafin, 808 F.3d 1263, 1274 (11th Cir. 

2015); see also United States v. Ronda, 455 F.3d 1273, 1284 (11th Cir. 2006); United States v. 

Carson, 560 F.3d 566, 580 (6th Cir. 2009); United States v. Perry, 335 F.3d 316, 320-21 (4th Cir. 

2003), cert. denied 540 U.S. 1185 (2004). “[T]o support a conviction under § 1512, ‘the 

Government must show that there was a reasonable likelihood that a relevant communication 

would have been made to a federal officer.’” Chafin, 808 F.3d at 1274 (quoting Fowler, 131 S. 
16 

Ct. at 2048). 

 Pursuant to the Information, Defendant “knowingly and willfully” made materially false, 

fictitious, and fraudulent statements and representations to FBI special agents. Information at 2. 

Defendant engaged in “misleading conduct” by knowingly making false statements and 

intentionally concealing material facts. Id.; see also 18 U.S.C. § 1515(a)(3) (defining “misleading 

conduct”). Defendant’s “misleading conduct” was directed “toward another person,” in this case 

the FBI special agents. Moreover, the false statements were made “with the intent to hinder, delay 

or prevent the communication of information to a federal law enforcement officer.” Indeed, here, 

Defendant made false statements to FBI special agents when he stated that he did not know of 

anyone asked to go out of town who had been involved with the 2010 mayoral campaign or the 

GOTV initiative at issue, that he never requested for anyone to leave town so that they could not 

come to the U.S. Attorney’s Office or speak with federal agents, and that he did not help or assist 

with sending anyone out of town so that they would not be able to speak with federal agents in the 

FBI’s investigation of the GOTV effort. Information at 2-3. In providing this false information 

to FBI agents, Defendant clearly intended to “prevent,” “hinder,” and “delay” the communication 

of the truthful information he had on these topics. As Defendant admitted, he had given funds to 

Person One in order to persuade Person One to leave town for an extended period of time so that 

he would be unavailable to speak with federal agents in the FBI’s investigation of the GOTV 

initiative. Id. at 3. Finally, Defendant’s “misleading conduct” related to the commission or the 

possible commission of a federal crime. Here, Defendant’s false statements directly to the FBI 

special agents were relevant to the possible commission of violations of: Sections 1512(b)(1), 

(b)(3), (c)(2) (tampering with a witness, victim, or an informant); and Section 1503 (influencing 

or injuring officer or juror generally). 
17 

Defendant argues that 18 U.S.C. § 1512(b)(3) is not applicable to Defendant’s conduct as 

set forth in the Information because a violation under that statute requires the Defendant to engage 

in misleading conduct toward a third person with the intent to hinder, delay, or prevent the 

communication to a law enforcement officer. Def.’s Resp. to Govt.’s Mem. in Aid of Sent’g at 5. 

As such, Defendant’s argument is that he could not violate § 1512(b)(3) by directly misleading a 

federal law enforcement officer but rather that he must do so through a third party. The Court 

finds this argument is without merit. As previously mentioned, the statute requires that the 

defendant engage in misleading conduct toward “another person.” Nothing in the statutory 

language appears to restrict the definition of “another person” to any non-federal law enforcement 

officer, and courts interpreting the provision have concluded that “another person” is commonly 

understood to mean “any person.” See, e.g., Veal, 153 F.3d at 1245 (“As the district court found, 

there is no ambiguity in ‘another person,’ which is easily and commonly understood to mean any

person, regardless of whether he possessed knowledge of the commission or possible commission 

of a federal crime from being an eyewitness or investigating official.”); United States v. Gardner, 

993 F. Supp. 2d 1294, 1302 (D. Or. 2014) (“Although the legislative purpose and title of the

[Victim and Witness Protection Act] may support an argument that 18 U.S.C. § 1512(b)(3) applies 

only to victims, witnesses, and informants, the plain text of the statute is unambiguous. Therefore, 

the Court looks no further than the plain meaning of the text.”). Accordingly, the Court finds that 

Defendant’s conduct as described only in the Information establishes all the elements of a violation 

of § 1512(b)(3) and, as such, the application of U.S.S.G. § 2J1.2(a) (obstruction of justice 

guideline) through cross-reference provision of § 2B1.1(c)(3) (fraud guideline) is warranted in this 

case. 
18 

b. Conduct in the Information and Statement of the Offense establishes 

violations of 18 U.S.C. §§ 1503 and 1512(c)(2). 

 The Court next considers Defendant’s conduct as set forth both in the Information and the 

Statement of the Offense which includes conduct that Defendant admitted to as part of his plea 

agreement. Pursuant to the Statement of the Offense, on or about August 16, 2012, Defendant, 

with his lawyer present, engaged in a voluntary interview with two FBI agents and representatives 

from the U.S. Attorney’s Office for the District of Columbia. Stmt. of Offense at 7. During that 

interview, Defendant made “statements . . . he knew to be false and misleading to the FBI,” “with 

knowledge of and in contemplation of a pending federal investigation.” Id. The false and 

misleading statements mirror those described in the Information. See id. at 7-8. Moreover, 

“[t]hese false statements were material, as they were capable of influencing the course of the FBI’s 

investigation” and “were made in an attempt to influence the federal grand jury investigation” into 

the GOTV initiative. Id. at 8. Defendant’s conduct was both knowing and willful. Id. As 

described herein, the Court finds that Defendant’s conduct as described satisfies all the elements 

of violations of at least two obstruction of justice offenses codified under 18 U.S.C. § 1503 and § 

1512(c)(2). The Court shall discuss each in turn. 

Pursuant to 18 U.S.C. § 1503, a person is prohibited from “corruptly . . . endeavor[ing] to 

influence, obstruct, or impede, the due administration of justice.” 18 U.S.C. § 1503(a). “As to 

obstruction of justice, 18 U.S.C. § 1503 is satisfied whenever a person, with the ‘intent to influence 

judicial or grand jury proceedings,’ takes actions having the ‘natural and probable effect’ of doing 

so.” In re Sealed Case, 162 F.3d 670, 674 (D.C. Cir. 1998) (quoting United States v. Aguilar, 515 

U.S. 593, 600 (1995)). To do so corruptly, “‘the defendant need only have had knowledge or 

notice that success in his fraud would have likely resulted in an obstruction of justice.’” United 
19 

States v. Pasha, 797 F.3d 1122, 1132 (D.C. Cir. 2015) (quoting United States v. Neiswender, 590 

F.2d 1269, 1273 (4th Cir. 1979)). Here, it is clear that Defendant’s false statements made to the 

FBI agents and the U.S. Attorney’s Office “in an attempt to influence the federal grand jury 

investigation” satisfy all the elements of 18 U.S.C. § 1503. 

Pursuant to 18 U.S.C. § 1512(c)(2), a person is prohibited from corruptly obstructing, 

influencing, or impeding any official proceeding, or attempting to do so. “The term ‘official 

proceeding’ includes proceedings before federal judges, grand juries, and Congress.” United 

States v. Ring, 628 F. Supp. 2d 195, 223 (D.D.C. 2009) (citing 18 U.S.C. §§ 1515(a)(1)(A) & (B)). 

Defendant argues that he cannot be said to have acted “corruptly” because Defendant gave money 

to and discussed leaving town with Person One, who was not under subpoena and had no legal 

duty to speak with law enforcement officials. Defendant’s argument conflates the incident with 

Person One with Defendant’s false statements to law enforcement officials regarding that incident. 

In the Statement of the Offense, Defendant admitted that his false statements to FBI agents and 

the U.S. Attorney’s Office “were made in an attempt to influence the federal grand jury 

investigation” into the GOTV initiative. As such, Defendant’s false statements are the basis for 

this violation rendering it irrelevant whether Person One was under subpoena or otherwise legally 

obligated to speak with investigators. Indeed, “[o]nly persons conscious of wrongdoing can be 

said to ‘knowingly . . . corruptly persuade.’” Arthur Andersen LLP v. United States, 544 U.S. 696, 

706 (2005). Here, Defendant’s conduct satisfies all the elements of violating 18 U.S.C. § 

1512(c)(2) because Defendant made false statements to FBI agents and the U.S. Attorney’s Office

in an attempt to influence the grand jury investigation into the GOTV initiative. 

Defendant also argues that the Government has failed to demonstrate that he violated all 

the elements of an offense under either 18 U.S.C. §§ 1503 or 1512(c)(2) because there was an 
20 

insufficient nexus between Defendant’s conduct and the grand jury proceeding. Def.’s Resp. to 

Govt.’s Mem. in Aid of Sent’g at 6-7. This argument is without merit. The Supreme Court of the 

United States in United States v. Aguilar, 515 U.S. 593 (1995), held that simply testifying falsely 

to an investigating agent with knowledge that a grand jury proceeding had been convened was 

insufficient to meet the requirements of § 1503. Id. at 601. Rather, the Court found that the statute 

requires that “action taken by the accused must be with the intent to influence judicial or grand

jury proceedings.” Id. at 599. As the Court explained, “if the defendant lacks knowledge that his 

actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.” Id. 

(emphasis added). Defendant argues that the nexus requirement would necessitate some additional 

evidence, for instance, in order to show that the federal investigators were under subpoena to testify 

before the grand jury. However, here, Defendant admitted as part of his plea that he was attempting 

to influence the grand jury investigation when he made the false statements to the FBI agents and 

the U.S. Attorney’s Office. Given this admission, there is clearly a nexus between Defendant’s 

false statements and the grand jury proceeding. 

In sum, the Court concludes that upon consideration of the conduct only set forth within 

the four corners of the Information to which Defendant pled, his conduct meets all the elements of 

a violation of § 1512(b)(3). Moreover, the Court concludes that upon consideration of the conduct 

set forth in the Information and the Statement of the Offense which Defendant agreed to as part of 

his plea agreement, Defendant’s conduct satisfies all the elements of a violation of 18 U.S.C. §

1503 and of § 1512(c)(2). Having found that Defendant’s conduct meets all the elements of at 

least three obstruction of justice offenses, 18 U.S.C. §§ 1503, 1512(b)(3), and 1512(c)(2), the Court 

finds that the cross-reference provision of U.S.S.G. § 2B1.1(c)(3) is applicable because the conduct 

set forth in the count of conviction establishes an offense specifically covered by the obstruction 
21 

of justice guideline (U.S.S.G. § 2J1.2). As such, the Court, applying U.S.S.G. § 2J1.2(a), finds 

that Defendant’s base offense level is 14. 

B. Upward Adjustment for Obstruction of Justice

Turning to the next issue before the Court, the Government argues that the Court should 

apply a two-level upward adjustment pursuant to U.S.S.G. § 3C1.1 for obstructing or impeding 

the administration of justice. Pursuant to § 3C1.1, 

If (1) 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 (2) the obstructive conduct 

related to (A) the defendant’s offense of conviction and any relevant conduct; or 

(B) a closely related offense, increase the offense level by 2 levels. 

U.S.S.G. § 3C1.1. The application notes to the provision provide some specific examples of the 

types of conduct to which this adjustment applies. Id. application n.4. Specifically, the nonexhaustive list includes “providing a materially false statement to a law enforcement officer that 

significantly obstructed or impeded the official investigation or prosecution of the instant offense,” 

and “other conduct prohibited by obstruction of justice provisions under Title 18, United States 

Code.” Id. application n.4(C) & (I). “‘Material’ evidence, fact, statement, or information . . .

means evidence, fact, statement, or information that, if believed, would tend to influence or affect 

the issue under determination.” Id. application n.6. 

The Government contends that the Defendant made false statements and engaged in 

obstructive behavior after he entered his plea that warrants applying this sentencing enhancement. 

Govt.’s Reply Mem. in Aid of Sent’g at 23. Specifically, the Government asserts that during a 

March 7, 2014, debriefing, “[D]efendant continued his obstruction, falsely claiming no 

recollection of a $10,000 cash payment made on or about September 17, 2010 to Close Relative, 

purportedly for campaign expenses, that the defendant brokered from Thompson through Person 
22 

G.” Id. at 9. Defendant asserts that his faulty memory regarding the $10,000 cash payment was 

due to diagnosed memory deficiencies and further argues that the Court should not credit the 

statements of “Person G” that support the notion that Defendant was involved in the $10,000 cash 

payment. Def.’s Resp. to Govt.’s Mem. in Aid of Sent’g at 9-11. However, the Government 

contends that Defendant has only proffered evidence regarding the alleged memory deficits from 

examinations beginning in February 2015, well after the statements at issue were made, and 

because, in the Government’s view, Defendant “did not have any similar failures of recollection 

when describing other details and sequences of events.” Govt.’s Mem. in Aid of Sent’g at 15. As 

such, the Government contends that Defendant’s arguments should not be credited. 

In sum, the Court is left with two factual disputes between the parties that it shall resolve 

at sentencing. The first issue is whether there is sufficient evidence to demonstrate by a 

preponderance of the evidence that Defendant was involved in the $10,000 cash payment to Close 

Relative. See United States v. Price, 409 F.3d 436, 444 (D.C. Cir. 2005) (Government “carries the 

burden of proving any facts that may be relevant in sentencing.”); United States v. Washington, 

115 F.3d 1008, 1010 (D.C. Cir. 1997) (“The burden is on the government to prove facts in support 

of a sentence enhancement by a preponderance of the evidence.”). If the Court finds that 

Defendant was involved with the cash payment as the Government alleges, then the second issue 

the Court must resolve is whether Defendant made false statements in order to willfully obstruct 

or impede the administration of justice such that U.S.S.G. § 3C1.1 should apply. Central to this 

determination will be whether or not Defendant’s statements were the result of Defendant’s 

memory deficits as argued by Defendant. Given that this determination requires the Court to make 

factual determinations, the Court shall reserve its ruling on these issues until the sentencing 

hearing.
23 

C. Downward Adjustment for Acceptance of Responsibility

Finally, Defendant argues that the Court should apply a two-level downward adjustment 

for acceptance of responsibility under U.S.S.G. § 3E1.1(a). Pursuant to § 3E1.1, “If the defendant 

clearly demonstrates acceptance of responsibility for his offense, [the court should] decrease the 

offense level by 2 levels.” Id. Pursuant to the application notes, a court may consider whether a 

defendant “truthfully admit[ed] the conduct comprising the offense(s) of conviction, and truthfully 

admit[ed] or not falsely den[ied] any additional relevant conduct for which the defendant is 

accountable . . . .” U.S.S.G. § 3E1.1(a) application n.1(A). While the entry of a guilty plea is 

“significant evidence of acceptance of responsibility,” “this evidence may be outweighed by 

conduct of the defendant that is inconsistent with such acceptance of responsibility.” Id. at 

application n.3. In determining whether to apply this adjustment, the D.C. Circuit has recognized 

that “[t]he scope of the district court’s wide discretion under section 3E1.1 is not restricted to an 

evaluation of the defendant’s acceptance of responsibility for the narrow offense of conviction and 

its essential elements.” United States v. Taylor, 937 F.2d 676, 680 (D.C. Cir. 1991). 

Defendant asserts that he is entitled to the acceptance of responsibility adjustment because 

he demonstrated public remorse for his actions, including during the plea hearing held in this 

matter. Def.’s Resp. to Govt.’s Mem. in Aid of Sent’g at 19, n.6. The Government contends that 

Defendant is not entitled to this downward adjustment because he has not “clearly” demonstrated 

his acceptance of responsibility. Here, the Government asserts that there are two bases for not 

applying this adjustment. First, the Government argues that Defendant’s alleged false statements 

after the plea regarding the $10,000 cash payment warrant the Court declining to include this 

adjustment in its calculation. As the Government notes, should the Court apply the upward 

adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1 discussed above, the conduct 
24 

warranting such an enhancement “ordinarily indicates that the defendant has not accepted 

responsibility for his criminal conduct.” U.S.S.G. § 3E1.1(a) application n.4. Second, the 

Government contends that this adjustment should not be applied based on Defendant’s “denying 

and minimizing his series of criminal offenses,” even though Defendant entered a plea in this 

matter. Govt.’s Reply Mem. in Aid of Sent’g at 26. The Government’s second argument centers 

around Defendant’s statements during the plea hearing and in his briefing in anticipation of 

sentencing. See id. As such, the Court shall make a factual determination on the record during 

the sentencing hearing as to whether the Government has established a basis for the Court to 

decline to apply this adjustment based on the alleged $10,000 payment. The Court also shall 

determine whether the record reflects that Defendant has otherwise clearly accepted responsibility 

for his offense such that this adjustment is warranted. 

CONCLUSION

For the foregoing reasons, the Court has determined that in calculating Defendant’s base 

offense level under the U.S. Sentencing Guidelines, the cross-reference provision of U.S.S.G. § 

2B1.1(c)(3), is applicable in this instance. The Court further finds that the conduct set forth in the 

count of conviction establishes obstruction of justice offenses specifically covered by U.S.S.G. § 

2J1.2. As such, the Court, applying that guideline, finds that Defendant’s base offense level is 14. 

With respect to the potential upward adjustment for obstruction of justice pursuant to U.S.S.G. § 

3C1.1 and the potential downward adjustment for acceptance of responsibility pursuant to 

U.S.S.G. § 3E1.1(a), the Court shall determine at the sentencing hearing: (1) whether there is 

sufficient evidence to demonstrate by a preponderance of the evidence that Defendant was 

involved in the $10,000 cash payment to Close Relative; and (2) if so, whether Defendant made 

false statements in order to willfully obstruct or impede the administration of justice such that 
25 

obstruction of justice adjustment should apply and such that acceptance of responsibility 

adjustment should not apply. Moreover, the Court shall determine whether the acceptance of 

responsibility adjustment should otherwise apply because Defendant clearly demonstrates 

acceptance of responsibility for his offense. The Court shall render these rulings on the record at 

the sentencing hearing. 

 /s/ 

 COLLEEN KOLLAR-KOTELLY

 UNITED STATES DISTRICT JUDGE