United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN, District Judge.
The Defendant, Brenton Ennis, pled guilty to Robbery of Firearms and Money in violation of 18 U.S.C. § 1951, and Use of a Firearm During and In Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c). An officer with the United States Probation Office prepared a Presentence Investigation Report (PSR) prior to the Defendant's sentencing. The statutory maximum sentence for a violation of § 1951 is 20 years; and the statutory minimum sentence for a violation of § 924(c) is 10 years. According to the PSR, the Defendant's total offense level is 26, and criminal history category is III. The United States Sentencing Guideline range corresponding to this offense level and criminal history category is 78 to 97 months of imprisonment for Count 1, and 10 years for Count 2 to run consecutively with Count 1. The Defendant objects to the obstruction of justice enhancement under U.S.S.G. § 3C1.1, as contained in Paragraph 36 of the PSR. The Court conducted evidentiary hearings on July 31, 2014, and September 29, 2014. Both parties made oral arguments in lieu of written briefs. The objection is ripe for ruling.
The Court overrules the Defendant's objection because the Government submitted sufficiently reliable evidence to sustain the obstruction of justice enhancement under § 3C1.1.
By way of Indictment [ECF No. 26] filed on December 18, 2012, the Government charges that, on November 13, 2012, the Defendant and his Codefendant, Craig Whigum, unlawfully obstructed, delayed, and affected interstate commerce by robbery; and knowingly used, carried, brandished and discharged a firearm during and in relation to the robbery. The Defendant entered a guilty plea, which was adopted by the Court on May 24, 2013. The Defendant is scheduled for sentencing on November 21, 2014.
On November 13, 2012, the Defendant and his Codefendant, Craig Whigum, committed an armed robbery of a federally-licensed firearms dealer. [ECF No. 68.] The Defendant was arrested on November 14, 2012, but was released after posting bond on state charges. ( Id. )
On November 16, 2012, the City of Fort Wayne and Allen County Emergency Call Center received a 911 call reporting a threat of violence from an identified caller (hereinafter "Caller"). (Gov. Ex. 1.) The Caller informed a Fort Wayne Police Department (FWPD) officer that a "couple of days" prior, he found Samantha Bolden-the Defendant's mother-in his garage. (Gov. Ex. 2.) Identifying herself as the mother of an armed robbery suspect, Bolden told him that the Defendant left clothing and other items in his garage after the Defendant evaded the police. ( Id. ) He requested that Bolden leave his property. ( Id. ) The Caller said that on November 16-the day of the 911 call-the Defendant approached his home and requested entrance into his garage to retrieve clothing and a cell phone. ( Id. ) The Defendant spoke to the Caller through a locked screen door. ( Id. ) He denied the Defendant's request and suggested the police be contacted. ( Id. ) The Defendant then responded, "It's my stuff and I'm gonna get my stuff, " and made an unsuccessful attempt to open the locked screen door. ( Id. ) He again denied the Defendant's renewed request for entrance. ( Id. ) According to the Caller, the Defendant then made a gesture with his hand, using his thumb, index and middle fingers to create the image of a gun pointed at the Defendant's head. ( Id. ) He said the Defendant then pushed down on his thumb, to a represent a gun being fired, and said, "I got something for you, dude." ( Id. ) The Defendant then left the scene. ( Id. ) The Caller stated that the Defendant's gesture placed him in fear for refusing to permit the Defendant into his garage. ( Id. )
On November 16, 2012, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) recovered three items from the Caller's home: a hoodie, a pair of sweat pants, and a piece of cardboard with the name "Sam" and a phone number on it. (Tr. 25, Sept. 29, 2014.) On November 19, 2012, the Defendant was charged in Allen County Superior Court with "Intimidation - Threat to Commit a Forcible Felony." (Gov. Ex. 3.) The charge was dismissed on November 26, 2012. ( Id. )
Virshawn Lewis testified for the Defendant. (Tr. 3-16, Sept. 29, 2014.) According to Lewis, he accompanied the Defendant and Elijah Freeman to the Caller's home on November 16, 2012. ( Id. at 5-6.) Lewis testified that all three individuals approached the home and requested access to the property to retrieve the Defendant's belongings. ( Id. at 6-7.) Lewis was nable to recall where he was standing in relation to the Defendant. ( Id. at 10.) Lewis said their requests were repeatedly denied by the Caller, who was allegedly acting "weird" and "doing funny stuff." ( Id. at 8.) When asked by defense counsel how the Defendant reacted to the denial of his request, Lewis provided the following testimony:
We were just sitting there talking to [the Caller], I mean like asking him can we still go back there or can you go back there and then he just kept saying no. He kept having little excuses why not to go back there. So [the Defendant] walked away and stuff, and then he did something, [the Caller] said something weird, so I looked back, and I'm trying to see what's going on and everything and after that, we just left. ( Id. )
According to Lewis, the Defendant did not say anything as he walked off. ( Id. )
On cross-examination, Government Counsel referenced a previous statement made by Lewis to ATF Special Agent Sean Skender that, during the encounter with the Caller, the Defendant was behind Lewis and that Lewis couldn't see what the Defendant was doing. ( Id. at 14, 29.) Lewis responded, "I don't remember that part." ( Id. )
In addition to Lewis' testimony, the Defense relies on two letters: one letter allegedly written and signed by Freeman on November 19, 2012; and another letter allegedly written and signed by Lewis on an unmarked date. (Def. Ex. A; Gov. Ex. 6.) Both letters were signed and witnessed by Bolden; and both letters ...