UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4561

OMAR YUSUF DESANGES,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Harrisonburg.

Samuel G. Wilson, Chief District Judge.

(CR-95-46)

Argued: December 1, 1997

Decided: January 27, 1998

Before WIDENER and MURNAGHAN, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: J. Lloyd Snook, III, SNOOK & HAUGHEY, P.C., Charlottesville, Virginia, for Appellant. Anthony Paul Giorno, OFFICE

OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for

Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney,

Thomas J. Bondurant, Jr., Assistant United States Attorney, Roanoke,

Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant, Omar DesAnges, an admitted drug dealer, was convicted of first degree murder for the killing of Sanford Datcher. At

sentencing, the district court made a two-level upward departure in

DesAnges' sentence, pursuant to § 3C1.1 of the United States Sentencing Guidelines, on the ground that he had obstructed justice by

threatening or attempting to influence certain witnesses against him.

Since we find the grant of an upward departure to be justified on this

ground, we find it unnecessary and inappropriate to address the district court's alternative grant of a two-level upward departure on the

ground that DesAnges had committed his crime in a manner that

exposed a third party to a grave risk of harm, or on the ground that

DesAnges killed Datcher in order to avoid being prosecuted for his

drug activities.

DesAnges began transporting crack cocaine from Washington,

D.C., to Clarke County, Virginia, for resale beginning in late 1992.

He continued in that activity until December 23, 1994. During the

course of his drug dealing, DesAnges sold in excess of one kilogram

of crack cocaine.

On December 6, 1994, Sanford Datcher was sentenced on drug

charges in state court where it became public knowledge that he had

been working as an informant for local authorities. DesAnges and

Datcher were long-time friends, and Datcher knew about DesAnges'

drug activities. DesAnges was disturbed to learn that following his

arrest Datcher had informed authorities of DesAnges' criminal activities. DesAnges was also upset to learn that Datcher was having sexual

relations with some underage girls who were "like sisters" to

DesAnges. Additionally, DesAnges learned that Datcher had been

making attempts to begin a relationship with DesAnges' fiance.

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On December 23, 1994, DesAnges spotted Datcher's car in a rural

area of Clarke County. DesAnges parked his car, donned a mask,

armed himself with a Glock .40 caliber handgun, and secreted himself

behind Datcher's vehicle. A short time later, Datcher and his girlfriend, Dawn Ford, entered the car with Datcher as the driver and

Ford as the passenger.

Once Datcher and Ford were in the car, DesAnges approached the

driver's side window and fired the gun into the passenger compartment eleven to thirteen times.1 The first shots hit Datcher's hands as

they were held up in a defensive posture. The succeeding bullets hit

Datcher in the chest. Datcher then rolled on his stomach and started

to crawl over Ford's lap as DesAnges continued firing into Datcher's

side and back. The fatal shots entered Datcher's backside and tore

through his internal organs as he lay on Ford's lap. Ford was shot

once in the arm during the attack. Following the shooting, DesAnges

fled the area and destroyed and disposed of the firearm. He called an

associate later in Clarke County and asked, "Did I do good[?]"

DesAnges was not arrested until April 25, 1995. In the months

between the murder and his arrest, DesAnges contacted three witnesses who could have implicated him in the homicide. In personal

contacts with the witnesses, DesAnges made comments to the effect

that "if I go down, you all go down with me." Also, DesAnges admits

to having used a fictitious name to send letters to the three witnesses

telling them to "keep clean" because the "beast is always lurking in

the midst." The witnesses, who testified to feeling threatened by

DesAnges' actions, ultimately gave false statements to the grand jury

and investigators.2

DesAnges was charged in the United States District Court for the

Western District of Virginia, in a superseding indictment dated June

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1 There were thirteen total bullet wounds but only eleven shell casings

recovered. The firearm held 13 rounds.

2 The three witnesses were charged with obstruction of justice and sentenced on November 1, 1996. In passing sentence, the district court made

a downward departure pursuant to U.S.S.G. § 5K2.12, p.s. [Coercion and

Duress], due to the witnesses' fear of DesAnges. See United States v.

Summers, Crim. No. 96-37-H (W.D. Va. Nov. 1, 1996).

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22, 1995. The charges included conspiracy to distribute cocaine; capital murder for the killing of Datcher in connection with a drug conspiracy; and the use of a firearm during the course of a conspiracy.

On March 28, 1996, DesAnges entered a guilty plea to all of the

charges that he faced, in exchange for the government withdrawing

its request for the death penalty. Sentencing was scheduled for July

2, 1996. In the presentence report, DesAnges' offense level was set

at 44, which included a base offense level of 43; a 2-point enhancement for being the leader of a drug conspiracy; a 2-point enhancement

for obstructing justice during the investigation; and a 3-point reduction for acceptance of responsibility. The presentence report recommended a sentence of life imprisonment.

On July 2, 1996, a sentencing hearing was held. The judge disallowed the recommended 2-point enhancement based on the allegation

that DesAnges was the leader of a drug conspiracy, but he granted a

2-point enhancement for obstruction of justice. This resulted in a sentencing range of 365 months to life. The judge sentenced DesAnges

to life imprisonment, and this appeal followed.

DesAnges argues that the district court erred in making an upward

departure based on a finding of obstruction of justice under U.S.S.G.

§ 3C1.1. That section authorizes the trial court to grant a two-level

upward departure "[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

. . . ." U.S.S.G. § 3C1.1.

The district court based its upward departure on its conclusion that

the letter DesAnges wrote to Keith Summers was, in context, "an

effort to keep Keith Summers or to dissuade Keith Summers from

providing relevant and incriminating evidence to authorities." The letter, in pertinent part, states as follows:

I know those "Folks" are sweating you but stand strong, if

you know nothing say nothing cause they have nothing . . . .

They lie and act like they know but if they did, I wouldn't

be here and a lot of others "who were saved" wouldn't be

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here . . . . Stay "clean" cause the "beast" is constantly lurking in the midst so to speak.

The court also found that similar correspondences with two other

potential witnesses -- Brenda Morris and Pam Morris -- had the

same purpose and effect.

Pursuant to 18 U.S.C. § 3742(d) (1994), this Court will accept the

district court's findings of fact unless they are clearly erroneous. The

Court is also required to give "due deference to the district court's

application of the guidelines to the facts." 18 U.S.C. § 3742(d).

It is unnecessary to decide whether DesAnges' letter was intended

as a threat or, rather, as an effort to persuade a potential witness to

lie to authorities. The commentary to § 3C1.1 states that a finding of

obstruction of justice may be triggered by the defendant's "threatening, intimidating, or otherwise unlawfully influencing" a potential

witness, or "committing suborning, or attempting to suborn perjury

. . . ." U.S.S.G. § 3C.1.1, comment. 3(a)-(b). The district judge concluded that DesAnges' statement could be reasonably interpreted as

either a threat or an effort to suborn perjury, and that finding was not

clearly erroneous.

Accordingly, the district court's grant of an upward departure

based on DesAnges' attempt to threaten or influence potential witnesses against him is affirmed.

AFFIRMED

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