*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 6/11/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 95-6259

v. W.D. Oklahoma

JERRY DON WOODS,

Defendant - Appellant.

(D.C. No. CR-94-31-A) 

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Jerry Don Woods appeals his guideline sentence of sixty-three months

imprisonment and a $75,000 fine, imposed following his guilty plea to three counts of
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mail fraud in violation of 18 U.S.C. § 1341. He contends that the district court erred by

imposing a two-level upward adjustment for obstruction of justice and by refusing to

grant a three-level downward adjustment for acceptance of responsibility. We affirm.

A. Obstructing or Impeding the Administration of Justice

Woods contends the district court erred by enhancing his sentence by two levels

for obstruction of justice pursuant to USSG §3C1.1. This section provides for an

enhancement “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice during the investigation, prosecution, or

sentencing of the instant offense.” Id. “[T]hreatening, intimidating, or otherwise

unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or

attempting to do so,” is the type of conduct that can justify an enhancement. Id.,

comment. (n.3(a)); see also United States v. Edwards, 69 F.3d 419, 440-41 (10th Cir.

1995) (threatening a witness can justify an enhancement for obstruction of justice),

petitions for cert. filed, 64 U.S.L.W. 3593 (Feb. 23, 1996) (No. 95-1355), (Feb. 29, 1996)

(No. 95-8147), (Mar. 4, 1996) (No. 95-8134); United States v. Hollis, 971 F.2d 1441,

1460 (10th Cir. 1992) (same), cert. denied, 507 U.S. 985 (1993).

The district court based the obstruction of justice enhancement upon testimony

given by Perry Gilstrap, an oil field driller for a couple of Woods’ oil well projects;

Steven Miller, another driller involved in Woods’ oil well projects; and Special Agent
1Miller informed Swanson that Woods made the following threats: “I’m going to

come up and smash your faces in. . . . I know where you guys live, and Perry, I know

your address in Broken Arrow. . . . You can take this as a threat. . . . I don’t care who is

up there, the Sheriff and the FBI, I’ll do what I want.” Appellant’s App. R. Vol. I, Tab 9.

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David Swanson of the FBI concerning threats made by Woods over the phone. On

March 2, 1992, exactly two years prior to Woods’ indictment, Woods called Gilstrap,

instructing him to turn off certain oil wells. Woods went into a rage and made a series of

serious threats, however, when Gilstrap admitted that he had talked to the FBI. 

Appellant’s App. R. Vol. I, Tab 8. Gilstrap then called Miller to discuss his conversation

with Woods. Gilstrap and Miller’s discussion was interrupted when Woods called again,

and Gilstrap provided for a three-way telephone conversation. Woods then made

additional threats, warning both of them not to talk to the FBI, screaming that he wanted

them to shut in the wells, and demanding they get off his lease.1

 At sentencing, Swanson

testified that these two conversations were attempts by Woods to impede the

investigation. Id., Tab 7, at 25.

On appeal, Woods concedes that he was in a rage and threatened Gilstrap and

Miller, but argues his rage was directed at “Gilstrap shutting down the wells . . . and not

. . . regarding his conversations with the FBI.” Appellant’s Br. at 7. He further contends

that because the phone calls were two years prior to indictment and “did not impede the

investigation, and . . . were the only such statements alleged to be made to any potential

witnesses, [that] these two telephone conversations should not be considered obstruction
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of justice.” Id. at 8-9. The district court found, however, that Woods “is not credible, in

his testimony that he recalls no threats pertaining to the FBI or a pending investigation

when he spoke to Mr. Gilstrap and later with Mr. Gilstrap and Mr. Miller both.” 

Appellant’s App. Vol. I, Tab 10, at 40. Specifically, the court found “that Mr. Woods is

not truthful in his statement that he had no inkling of an Indictment, as of the Second of

March, the time of the conversation.” Id. These factual determinations by the district

court are not clearly erroneous. See United States v. Nelson, 54 F.3d 1540, 1543 (10th

Cir. 1995). The district court, therefore, properly adjusted Woods’ offense level upward

pursuant to USSG §3C1.1. 

B. Acceptance of Responsibility

Woods also asserts that he was improperly denied a three-level downward

adjustment for his acceptance of responsibility. The offense level should be reduced by

two levels “[i]f the defendant clearly demonstrates acceptance of responsibility for his

offense.” USSG §3E1.1(a). A defendant may qualify for an additional one level

reduction by “timely notifying the authorities of his intention to enter a plea of guilty,

thereby permitting the government to avoid preparing for trial and permitting the court to

allocate its resources efficiently.” USSG §3E1.1(b)(2).

Woods admits his pre-arrest actions “may not have been consistent with

acceptance of responsibility.” Appellant’s Br. at 12. These actions include: (1) fleeing
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the jurisdiction, without telling anyone where he was going, after being advised by his

attorney that he was under indictment and “not to flee,” Appellee’s Suppl. App. at 1-3; (2)

fraudulently withdrawing $113,000.00, with his brother, John Woods, from their

business, Landmark Limited, prior to fleeing, Appellant’s App., R. Vol. II, PSR, ¶ 61; id.,

R. Vol. I, Tab 2, at 3; id., Tab 6, at 42; and (3) possessing a driver’s license and Social

Security Card in the name of William Marion Warren, Jr. upon his arrest in Cathedral

City, California. Appellant’s App., R. Vol. II, PSR, ¶ 63. Despite these actions, Woods

argues that the district court erred in denying him a reduction for acceptance of

responsibility because after his arrest he agreed to plead guilty and “did everything

possible to accept responsibility.” Appellant’s Br. at 3.

The district court addressed Woods’ contention concerning acceptance of

responsibility by noting the emphasis that the Application Notes under §3E1.1 place on

timeliness, stating:

[T]he acceptance of responsibility here was not timely but it occurred at a

point where not only was the defendant caught red-handed in a situation in

which his conduct was virtually indefensible; but, in which, if he had gone

to trial he would have met the powerful inference to be drawn from flight

and the use of assumed names in California. . . . [t]he defendant was not

really situated to mount a very powerful defense. 

Appellant’s App. R. Vol. I, Tab 2, at 2-3.

The district court also relied on Application Note 4 under §3E1.1, in concluding

that “it’s a rare case in which there can simultaneously be an upward adjustment for
2Application Note 4 under §3E1.1 reads as follows:

4. Conduct resulting in an enhancement under §3C1.1 (Obstructing or

Impeding the Administration of Justice) ordinarily indicates that the

defendant has not accepted responsibility for his criminal conduct. There

may, however, be extraordinary cases in which adjustments under both

§§3C1.1 and 3E1.1 may apply.

USSG §3E1.1, comment. (n.4).

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obstruction of justice and a downward adjustment for accepting responsibility.” Id., at 3.2

The district court then determined that this was “not such a case.” Id. We cannot say that

this determination was clearly erroneous. See, e.g., United States v. Spedalieri, 910 F.2d

707, 712 (10th Cir. 1990).

For the reasons stated above, we AFFIRM the sentence imposed by the district

court.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge