Decided: October 30, 2015
In an armed robbery case, the Fourth Circuit found that the District Court properly applied a sentence enhancement against Andrews for obstruction of justice. On that basis, the Fourth Circuit upheld the sentence enhancement.
In March, 2011, Andrews entered a Domino’s Pizza in Kannapolis, North Carolina, with a handgun. He forced an employee at gunpoint into the office, and ordered the manager to open the safe. When he was told there was nothing in the safe, Andrews stole from the cash register, from two employees, and took the manager’s wallet. During the encounter, Andrews pointed his gun at the employees, and twice threatened to shoot. The Domino’s manager reported the robbery right away. In searching for Andrews, police found an abandoned car. Inside the car were wallets belonging to Andrews and the manager, a cell phone with photos of Andrews’s family which records showed had been used in Kannapolis near the time of the robbery, a traffic ticket issued to Andrews, sales records showing Andrews owned the car, and a baseball cap matching that described as worn by the robber, which DNA analysis showed belonged to Andrews.
Andrews was charged with interference with commerce by robbery and carrying and using a firearm during and in relation to a crime of violence in violation of federal statutes. He pled not guilty, and filed several pre-trial motions including one accusing prosecutors of witness intimidation. He also filed a notice of alibi with a brief describing expected alibi testimony. At trial, during opening statement, Andrews’s attorney identified Andrews’s girlfriend and her mother as alibi witnesses, and previewed their testimony. During the trial, Andrews’s alibi witnesses testified that he was at their house at the time of the robbery, but the mother of one of Andrews’s children testified that he had visited her the night of the robbery, and told her he robbed a Domino’s store. The trial jury found Andrews guilty on all charges. The Fourth Circuit reviewed an appeal, found that Andrews was no longer eligible to be sentenced as a career offender, vacated his sentence, and remanded for resentencing.
On remand, the Probation Office calculated Andrews’s total offense level as 22. The government requested a two-level enhancement for obstruction of justice, and the Probation Office added this enhancement to its recommendations. Andrews objected to the enhancement. The District Court found that Andrews knew his attorney would present the alibi witnesses, and must have known what they would say. On this basis, the District Court found sufficient evidence that Andrews obstructed justice by allowing the false testimony without objecting, and thus was subject to the enhancement. Andrews was sentenced to 115 months imprisonment on one charge, and 84 months imprisonment on the second charge served consecutively, followed by five years of supervised release.
Andrews appealed to the Fourth Circuit arguing that the sentencing enhancement was improper. The Fourth Circuit found that an enhancement for obstruction of justice is proper under the U.S. Sentencing Guidelines if there is a proper finding of obstruction, even if there was no specific finding of suborning perjury. The Fourth Circuit analyzed the facts of the case. A large amount of evidence placed Andrews at the scene of the crime. Further, Andrews knew what his alibi witnesses would testify to, as shown in his notice of alibi, accompanying brief, his attorney’s opening statement, and his motion accusing the prosecutors of witness intimidation, including intimidating one of his alibi witnesses. Even if Andrews didn’t know what the first alibi witness would say, the testimony of the first witness put him on notice of what the second witness would say. Based on these elements, the Fourth Circuit held that the District Court properly found that Andrews obstructed justice by allowing his alibi witnesses’ false testimony, and thus upheld the sentence enhancement. The Fourth Circuit further found that the sentence enhancement did not penalize Andrews for exercising his Fifth Amendment right to remain silent, nor was Andrews’s Sixth Amendment right to counsel violated.
Katherine H. Flynn