NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0661n.06
No. 12-1737
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA,
P laintif f-App ellee,

v. ROLANDO HUNTLEY,
Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P EAL F ROM TH E UNITED STATE S DI STRICT COURT F OR THE EASTE RN DISTRICT OF M ICHIGAN

Before: SILER, CLAY, and GIBBONS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Def endant- appell a

n t Ro la ndo Huntley appea ls his conviction and sentenc e following a g uilty plea. Huntley arg ues that the district c ourt err ed by deny ing his motion to suppress evidenc e sei z ed d u ri ng a Terry stop and by imposing a two-leve l enhanc ement for obstruction of justice under United States Sentencing Guidelines Manual § 3C1.1.
Be cause Huntley did not prese rve his rig ht to appea l the district court’s ruling on hi s m o t i o n to suppress and the di strict court properly applied the obstruction of j ustice e n h an ce m ent, we aff irm Huntley ’s conviction and se ntence

. I

. A g rand jury char g ed Huntley with one count of being a felon in possession of a firea rm, in violation of 18 U.S.C. § 922(g )(1) , and one count of obstruction of justice, in violation of 18 U.S.C. § 1503. These char g es arise out of an encounte r betwee n Huntley and office rs of the Detroit Police Depa rt m en t. Offic er L estine J ackson testified that on May 28, 2010, she rec eived notice of anUnited States v. Huntley , No. 12-1737

assault occur

ring at a g as station. At the time, J ackson was working with Offic ers Nathan Cover and Kevin Chubb. When J ackson arr ived at the g as station, she saw one woman and four men, including Huntley , standing outside. As the officers approac hed the g roup, Huntl ey walked away

. J ac k s on spoke with the woman while Chubb walked over to Huntley

. Chubb broug ht Huntley to J ackson and then retrie ved a g un wra

pped in cloth that he saw Huntley leave near a pay phone as he walked awa y from the g roup. J ackson testified that she asked Huntley to step to the rea r of the patrol car beca

use she thought he may have been involved in the assault, based on the descr iption g iven by the dispatcher

. J ackson asked Huntley his name, and Huntley replied that his last name was Armstrong

. Upon seeing Chubb with the g un, Huntley ran awa y from the office rs and was eventua lly caug ht by Chubb. Office rs lear

ned Huntley ’s true ide ntity when they

proce ssed his fing erpr ints.
On J une 6, 2010, a g rand jury char g ed Huntley with one count of being a felon in possession of a firea rm. Huntley consente d to detention pend i n g t ri al

. Whil e in jail, Huntley spoke over the phone with a man and a woman, neither of whom have been identified. The following are excerpts of those conve rsations: Conversation 1: Huntley : Nephe w can st i l l t ak e this

. . . and get out on probation, and g et out

the same da

y dog . And g et this shit off his recor d rig ht then. Fe male: I know, I

told nephew that, but how would he be able to do that? Huntley : He would c ome to court. Fe male: And say

he did it? Huntley : Yep. And he will ge t out that same day

. Fe male: Alrig ht, I ’m g onna talk to nephew and I ’m g onna tell him to g o on ahea d and

do that for y ou so y ou can g et out. Huntley : You know how much time they are try ing to g ive me, dog ? Fe male: Yea

.United States v. Huntley , No. 12-1737

Conversation 2: Huntley : Did y ou find any thing a bout that shit I was telling y ou about? Fe male: Yea

h. Huntley : I know he pr obably like hell no. Fe male: He say he don’t know. He g otta think about it. (Unintellig ible). I say

ain’t no rea son need to think about it, cuz he’s scar ed about his other shit in Belleville. Conversation 3: Male: I want to help y ou dog , but the way this shit is g oing it is making me

uncomforta

ble. Huntley : They

try ing to g ive me an L

dog cause I g ot a f*c ked up re cord. Male: I told y ou I ’m go i ng to do what I do, but if they f*ck me up dog , I ’m g oing

to say thanks to y ou do. Huntley : You’ll nev er ev en wo rry about none of this shit, dog , never even worry about none of

this shit

. Ba sed on these conver sations, a g rand jury issued a superse ding indictment, adding a charge of obstruction of justice.
Severa l months later, Huntley filed a motion t o s uppress evidence seized during the Terry stop, arg uing that the s top violated the Four th Amendment. The dist rict court held an evidentiar y hear ing a nd denied Huntley ’s motion to suppress. Huntley and the g overnme nt rea ched a plea ag ree ment pursuant to Fe dera l Rule of Criminal Procedur e 11, but that ag ree men t wa s n o t reduc ed to writing

. Huntley pled g uilty to the felon in possession count, and the court dismiss ed the obs t ru ct i o n of justice count on the g overnme nt’s motion. The U.S. Proba tion Of fice prepa red a prese ntence investiga tion r eport and rec ommended that the court apply

a two-le vel incre ase in the offense level for obstruction of j ustice, pursuant to U.S.S.G. § 3C1.1.United States v. Huntley , No. 12-1737

At the s entenc ing he aring , the district court ove rruled H untley ’s objection to the two-le vel incre ase f or obstruction of justice, r easoning that

t h e defe ndant’s conduct, fairly observe d, clea rly was intended to obstruct b o t h t h e investiga tion and the prosec ution of this offe nse, becau s e the defe ndant was very clea rly try ing to g et s omebody else to take responsibili t y fo r— t o take the fall for a crime that he had committed by attempting to use persua sion and eff ectively attempting to suborn perjury or not attempting to suborn perjury , attemp t i n g to influence somebody else to perjure themselves to ta ke responsibility for this c rime. The c ourt sentenc ed Huntley to 108 months’ imprisonm ent.

I I

. Huntley did not prese rve his rig ht to appea l the district court’s denial of his m o t i o n to
suppress. Fe dera l Rule of Criminal Procedur e 11(a) (2) provides that “[w]i th the consent of the court and the g overnme nt, a defe ndant may enter a conditional plea of g uilty

. . . rese rving in writing the rig ht to have an appellate court revie w an adver se deter mination of a specifie d pretria l motion.” A defe ndant may appea l a pretria l motion under Ru l e 1 1 (a )( 2 ) only if the defe ndant obtains “‘1) a conditional g uilty plea in writing ; 2) that rese rves the rig ht to appea l a specifie d pre- trial motion; and 3) that evidenc es the g overnme nt’s consent.’” United States v. Mende z-Santana , 645 F.3d 822, 828 (6th Cir. 2011) (quoting United States v. Bell , 3 5 0 F.3d 534, 535 (6th Cir. 2003)). Wit hout a conditional g uilty plea, this co u rt is limit ed to “conside ration of jurisdictional issues and the voluntariness of the g uilty plea itself.” Mende z-Santana , 645 F.3d at 828. The oral plea ag ree ment that Huntley

enter ed into with the g overnme nt does not satisfy the re quirements of Rule 11( a)( 2).
As a re sult, Huntley

did not preser

ve his rig ht to appeal the district court’s r uling on his motion to suppress. We there fore do not rea ch the mer its of Huntley ’s ar g ument on appea l.United States v. Huntley , No. 12-1737 I I I

.

Next, Huntley

arg ues that the district cour t err ed in imposing a two-leve l enhanc ement for obstruction of justice under U.S.S.G. § 3C1.1. The district court’s fac tual finding s are revie wed for clea r err or and its conclusion as to whether the fac ts constitute obstruction of justice is revie wed de

novo . United States v. Bazazpour , 690 F.3d 796, 805 (6th Cir. 2012); United States v. Gilpatrick , 5 4 8 F. 3 d 479, 484 (6th Cir. 2008). The g overnme nt bear s the burden of proving obstructio n o f justice by a pre pondera

nce of the evidenc e. United States v. Dunham , 295 F.3d 605, 609 (6th Cir. 2002). Section 3C1.1 provides that the district court should incre ase the offe nse level by two levels if: (1) the defe ndant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respe ct to the inves tiga tion, prosec ution, or sentenc ing of t h e i n stant offe nse of conviction, and (2) the obstructive conduct rela ted to (A) the defe ndant’s offe nse of conviction and any rele vant conduct; or (B ) a close ly rela ted offe nse. U.S. Sentencing Guidelines Manual § 3C1.1 (2011). The application notes prov id e a n o n-exhaustive list of examples of conduct to which the adjustment applies. Id. at cmt. n.4. The conduct includes: “thre atening , i n t i m i d ati ng , or otherwise unlawfully influencing a co-de fenda nt, witness, or juror, direc tly or indirectly , or attempting to do so, [and] committing, suborning , or attempting to suborn perjury .” Id. Huntley ar gu es that the district court should not have applied the obstruction of justice enhanc ement beca

use he did not take a substantial step toward obstructing justice and there fore his actions di d not rise to an attempt to o b s t ruct justice. Huntley contends that this case is analog ous
to United States v. Horn , 113 F. App’x 355 (10th Cir. 2004) , wher e the Tenth Circuit he ld tha t the district court’s enhanc ement for obstruction of justice was clea rly err oneous. I n that case , Horn hadUnited States v. Huntley , No. 12-1737

written a letter to one of h i s gi rl fr i en d s, Sandra Goad, in which he explained that his only way to avoid a conviction would be if his other g irlfriend would say that she sold the g uns. Id. at 356. The Tenth Circuit held that Horn’s actions did not rise to the level of attempting to inf l u en ce the testimony of a wi t n es s beca use he did not take a substantial step toward convincing a witness to commit perjury

. Id. at 357. Rather, H orn’s letter amounted to littl e more than a hopeful wish for ex onera tion and a sta t em en t of hi s future intent to convince [hi s ot h er gi rl friend] to commit perjury

. Any plans to suborn perjury or otherwise obstruct justice wer e only in their planning stag es and clea rly wer e not embar

ked upon with the lang uag e of the letter. Id. L ikewise, Huntley claims that the “re marks over the telephone

. . . wer e, at most, no more than

a ‘hopef ul wish for exoneration’ without any particula r plan, s p ecif

icity , or even an identified witness to car

ry it forth.” Huntley distinguishes t he facts here from those in United St ates v. Bingham , 8 1 F. 3 d 617,
632 (6th Cir. 1996), wher e this court held that the district court proper ly applied the obstruction of justice enhanc ement. Bing ham had written sever al letters to his g irlfriend and co-de fenda nt, L inda Petaway , attempting to pe rsuade her not to enter a g uilty plea. Bingham , 81 F.3d a t 632. Petaway pled g uilty

and testi fied that Bing ham t old her that “if she did not testify that a par ticular g un was hers, he would g et into a lot of trouble and he did not want to g o back to pr ison.” Id. By contra st, Huntley arg ues that here there was no identified witness or a nticipated testimony . Huntley claims that “ther e was nothing bey ond mere rec orded conversa tions refe renc ing the unknown i ndividual,
‘Ne phew.’ ” Huntley ’s arg uments are unpersua sive beca use he did, in fac t, take a substantial step toward obstructing justice. I n Hor n , the defe ndant mere ly expressed a desire to convince one of hisUnited States v. Huntley , No. 12-1737

g irlfriend s to commit perjury , but here Huntley acte d on his desire and asked a woman over the phone to have “Ne phew” “say he did it.” A follow-up conver sation with this woman shows that she spoke with the man and he said he would think about it. Huntley also spoke direc tly with a man and attempted to persua de him to take responsibility for possession o f t h e fi re ar m. Huntley ’s actions

went far bey ond a mere desire to convince someone to commit perjury

. By making these three phone calls, Huntley , like Bing ham, took a substantial ste p toward his g oal of having someone else claim responsibility

for possession of the firea rm. Huntley points out that the g overnme nt did not identify the individuals he spoke with on the phone and de signa te them as witnesse s in his trial. Huntley ’s observa tion doe s not undermine the applicability of the enhanc ement. The enhanc ement applies so long as the defe ndant “attempted to obstruct or impede[] the administration of justice with r espec t to the inve stiga tion, pr osecution, or
sentenc ing of the instant offe nse of conviction.” U.S. Senten cing Guidelines Manual § 3C1.1 (2011). Although one exa m p le of cover ed conduct, in a non-exhaustive list, is “unlawf ully
i n fl u encing a co-de fenda

nt, witness, or juror, direc tly or indirectly , or attempting to do so , ” i d

. at
cmt. n. 4(A), there is no require ment that the person who Huntley soug ht to influence be identified by the g overnme nt as a witness. I n this case , the g overnme nt’s investi gat i o n wa s cut short by Huntley ’s g uilty plea. This does no t n ega t e t he fac t that prior to his g uilty plea, he attempted to obstruct the administration of justice by asking someone else to claim responsibility for possession of the firea

rm. Acc ording ly , we hold that the district court proper ly applied the obstruction of justice enhanc ement under

U.S.S.G. § 3C1.1.
I V.
For the re asons provided a

bove, we aff

irm Huntley ’s conviction and se ntence

.