Date: 10-06-2017

Case Style:

Case Number: 16-5701

Judge: Alice M. Batchelder

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Eastern District of Tennessee (Hamilton County)

Plaintiff's Attorney: Christopher C. Wang

Defendant's Attorney: Erin Pl Rust - FPD

Description: In this appeal from his criminal conviction for lying to an investigator, the defendant argues that the district court erred in calculating his sentence by improperly applying a cross-reference to the Accessory After the Fact provision,
USSG § 2X3.1, by relying on unproven factual allegations, and by denying him two requested
downward departures. Finding no merit to any of these claims, we AFFIRM.
I.
Willie Greer was a Hamilton County (Tenn.) Deputy Sheriff. In a late-night traffic stop,
he pulled over a female driver who had been drinking, had no driver’s license, and had an
outstanding arrest warrant. Greer ran her license but did not arrest her. Instead, he had her drive
to a secluded location where he had her perform oral sex on him. After Greer ejaculated he gave
the woman a fast-food cup, presumably to spit into, and allowed her to drive away.
Later that day, the woman filed charges with the Sheriff’s Department, alleging that an
officer had sexually assaulted her. A detective interviewed Greer that same day. Greer knew the
woman had reported a sexual assault, that he was the suspect in that assault, and that the
investigation could lead to criminal charges. And Greer lied to the detective. Greer said that he
had run the woman’s license plate but had no personal interaction with her, and could not even
identify her. In truth, Greer had initiated a traffic stop and had interacted with her plenty.
Later during the same interview, Greer made up a new version of events. He said that he
had not activated his police lights or detained her but, rather, she had approached him with the
sexual proposition and that he had begun but had discontinued the act. Greer said he had been
masturbating before she approached him and had ejaculated into the fast-food cup. But in truth,
as Greer eventually admitted, he had activated his police lights to initiate the stop, had
approached and detained the woman, and had “had [her] perform oral sex on him”; she had not
sexually propositioned Greer, though whether he had been masturbating was not resolved. R. 24
at 3, ¶ 4 (Plea Agreement, admitted facts). Greer acknowledged that investigators recovered his
semen from the woman’s clothing and his DNA from the fast-food cup that he had given her.
The county prosecutor charged Greer with aggravated rape and official misconduct under
state law, but dismissed those charges following a federal indictment for aggravated sexual
abuse, witness tampering (i.e., making false statements to the detective), and possession of a gun
during a crime of violence. Eventually the parties entered a plea agreement in which Greer
No. 16-5701 United States v. Greer Page 3
admitted the foregoing facts and pleaded guilty to witness tampering in violation of 18 U.S.C.
§ 1512(b)(3), in exchange for the federal prosecutor’s dismissing the other two charges.
The presentence report (PSR) presented the relevant Sentencing Guidelines and the
associated advisory guidelines calculations as follows:
Base Offense Level: The guideline for 18 U.S.C. § 1512(b)(3) offenses is found
in USSG § 2J1.2 of the guidelines. That section provides that an offense
involving witness tampering (providing false information) has a base offense level
of 14. USSG § 2J1.2(a).
However, USSG § 2J1.2(c) provides for a Cross Reference to USSG § 2X3.1,
Accessory After the Fact, in respect to the criminal offense under investigation.
In this case, the criminal offense under investigation was a Civil Rights Violation
(USSG § 2H1.1).
USSG § 2H1.1(a)(1) establishes the base offense level to be the offense level
from the guideline applicable to any underlying offense. In this case, the
underlying offense of the civil rights violation being investigated was aggravated
rape. The base offense level as determined under USSG § 2A3.1(a)(2) is 30.
USSG § 2X3.1(a)(1) provides that the base offense level should be 6 levels lower
than the offense level for the underlying offense, 30 minus 6 establishes a base
offense level of 24.
Specific Offense Characteristics: After the establishment of the base offense
level pursuant to USSG § 2X3.1, the Special Offense Characteristic at USSG
§ 2H1.1(b)(1) is applied if the defendant was a public official at the time of the
offense, or the offense was committed under the color of law. +6
PSR at ¶¶ 21-22. After subtracting three levels for acceptance of responsibility, the PSR’s Total
Offense Level was 27 (i.e., 24 + 6 - 3), which, coupling this with a criminal history category of I
(score of zero), resulted in an advisory range of 70 to 87 months in prison. PSR at ¶ 55.
At the sentencing hearing, Greer objected to the cross reference to USSG § 2X3.1 on the
basis that USSG § 2J1.2(c) should not apply because its commentary note says:
Because the conduct covered by this guideline is frequently part of an effort to
avoid punishment for an offense that the defendant has committed or to assist
another person to escape punishment for an offense, a cross reference to § 2X3.1
(Accessory After the Fact) is provided. Use of this cross reference will provide an
enhanced offense level when the obstruction is in respect to a particularly serious
offense, whether such offense was committed by the defendant or another person.
No. 16-5701 United States v. Greer Page 4
USSG § 2J1.2 cmt. (emphasis added). Relying on this language, Greer pointed out that there had
been no prosecution or conviction on the underlying offense (rape), and argued that there was not
even sufficient evidence that it had been “committed.” He said the encounter was merely an
inappropriate but consensual sexual rendezvous. The district court disagreed:
The Court: But there’s no dispute that this woman did come in, she did make a
complaint that there had been a sexual assault committed against
her; there is no dispute about that, is there?
Greer’s Atty: There is no dispute that that allegation was made, that’s correct.
The Court: And there is no dispute that that is in fact what was under
investigation.
Greer’s Atty: Yes, Your Honor.
The Court: Okay. The Court having considered the arguments of counsel
[and] . . . United States vs. Kimble, [305 F.3d 480 (6th Cir. 2002)],
concludes that the presentence report is correct in using the cross
references, that the cross referencing is not only supported by the
guidelines but it is actually required under the guidelines. So the
Court will deny the defendant’s objection to the presentence report
based upon the cross references.
R. 53 at 12:5-20 (sentencing transcript).
Greer also moved for two downward departures. First, he claimed that this was “aberrant
behavior” by him, warranting departure under USSG § 5K2.20, but the district court denied that
claim on the basis that Greer, being a trained police officer, was particularly aware of the
consequences of lying to an investigator (and of having sex with the possibly intoxicated subject
of a late-night traffic stop, possibly through coercion or extortion). Greer also claimed, vaguely,
that the woman’s alleged misconduct (i.e., her falsely claiming that the sex was rape1), warranted
a departure under USSG § 5K2.10, but the district court rejected that claim as well.
The district court agreed with the PSR’s advisory range of 70 to 87 months, considered
the § 3553 factors, sentenced Greer to a below-guidelines sentence of 60 months, and thoroughly
explained the reasons for its sentence. Greer moved for reconsideration, arguing that the
1It is noteworthy that the record contains no evidence or indication that the prosecutor ever charged the
woman with filing a false police report; nor does Greer make any such assertion here. Nor is there is anything in the
record or Greer’s briefing to indicate that Greer ever filed a civil suit against her for a false accusation.
No. 16-5701 United States v. Greer Page 5
sentence was too long because a lengthy prison sentence does not deter crime and consensual sex
is not a serious crime. The district court rejected the arguments and denied the motion.
II.
A.
We review de novo the district court’s interpretation and legal application of the
Guidelines. United States v. Schock, 862 F.3d 563, 566-67 (6th Cir. 2017). Here the district
court interpreted USSG § 2J1.2(c) as requiring that it apply a cross reference to USSG § 2X3.1,
Accessory After the Fact, for an investigation into an underlying criminal offense of aggravated
rape, resulting in a base offense level of 24 per USSG §§ 2A3.1(a)(2) and 2X3.1(a)(1). The
court relied on United States v. Kimble, 305 F.3d 480, 485 (6th Cir. 2002), which holds that “[i]t
is not necessary for the government to prove facts sufficient to establish a defendant’s guilt as an
‘Accessory After the Fact’ in order to impose a sentence under [USSG] § 2X3.1.”
Greer claims that the district court erred by applying USSG § 2X3.1 because the
commentary to USSG § 2J1.2 presumes that an underlying offense was actually committed, not
merely investigated,2 meaning—in Greer’s view—that the cross reference applies only if the
prosecutor can prove by at least a preponderance of the evidence that the underlying crime
actually occurred.3 Greer also points to the commentary to USSG § 2X3.1 as further support for
this view, because it defines “underlying offense” as “the offense as to which the defendant is
convicted of being an accessory, or . . . the offense the defendant is convicted of having
2USSG § 2J1.2(c)(1) says: “If the [obstruction of justice] offense [under consideration] involved
obstructing the investigation or prosecution of a criminal offense, apply § 2X3.1 (Accessory After the Fact) in
respect to that criminal offense, if the resulting offense level is greater than that determined above.”
The Commentary to USSG § 2J1.2 says in pertinent part:
“The specific offense characteristics reflect the more serious forms of obstruction. Because the
conduct covered by this guideline is frequently part of an effort to avoid punishment for an offense
that the defendant has committed or to assist another person to escape punishment for an offense, a
cross reference to § 2X3.1 (Accessory After the Fact) is provided. Use of this cross reference will
provide an enhanced offense level when the obstruction is in respect to a particularly serious
offense, whether such offense was committed by the defendant or another person.”
USSG § 2J1.2 cmt. (final paragraph) (emphasis added).
3Greer treats this as being (or being equivalent to) “acquitted conduct.” See United States v. White,
551 F.3d 381, 385-86 (6th Cir. 2008) (acquitted conduct “must be shown by a preponderance of the evidence”).
No. 16-5701 United States v. Greer Page 6
materially supported after its commission” (emphasis added).4 Finally, Greer relies on language
from United States v. Shabazz, 263 F.3d 603, 610 (6th Cir. 2001), which says: “the definition of
‘underlying offense’ in section 2X3.1 specifically directs the use of the offense level of the
underlying crime of conviction, not all offenses for which a principal stood trial.” And Shabazz
repeats that assertion in a footnote to that statement, which says, in pertinent part:
[S]ection 2X3.1’s definition of ‘underlying offense’ does not by its terms
encompass charges that did not result in convictions. Therefore, except to the
extent that the charges on which [the defendant] was acquitted might fall within
the scope of relevant conduct, they have no bearing on proper application of the
Obstruction of Justice guideline in Shabazz’s case.
Id. at 610 n.3; see also id. at 610 (repeating that § 2X3.1’s definition of “underlying offense”
does not “encompass all charges for which the government prosecuted [that defendant], [but] just
those on which it obtained convictions”). Greer argues that, because the State did not prosecute
or convict him of the underlying offense (rape), Shabazz bars the application of USSG § 2X3.1
and the district court’s reliance on Kimble was misplaced, asserting that Kimble has been
undermined by United States v. Booker, 543 U.S. 220 (2005), is dicta given that there was a
conviction in Kimble, and most importantly, actually holds only that the prosecutor need not
prove conclusively that the defendant obstructed justice. Considering the relevant language in
Kimble, however, we reject the contentions that Booker undermines it or that it is dicta.
The State and district court read Kimble as holding that it is the crime investigated (and
thus the scope of investigation obstructed) that controls, and that the prosecutor need neither
obtain a conviction on the underlying offense nor even produce facts in support of it:
4The Commentary to USSG § 2X3.1 says in pertinent part:
“For purposes of this guideline, ‘underlying offense’ means the offense as to which the defendant
is convicted of being an accessory, or in the case of a violation of 18 U.S.C. § 2339A, ‘underlying
offense’ means the offense the defendant is convicted of having materially supported after its
commission (i.e., in connection with the concealment of or an escape from that offense), or in the
case of a violation of 18 U.S.C. § 2339C(c)(2)(A), ‘underlying offense’ means the violation of
18 U.S.C. § 2339B with respect to which the material support or resources were concealed or
disguised. Apply the base offense level plus any applicable specific offense characteristics that
were known, or reasonably should have been known, by the defendant; see Application Note 9 of
the Commentary to § 1B1.3 (Relevant Conduct).”
USSG § 2X3.1 cmt. (Application Note: 1. Definition) (emphasis added).
No. 16-5701 United States v. Greer Page 7
In fact, proof of the underlying offense is immaterial, since the point of the crossreference
is to punish more severely obstruction of prosecutions with respect to
more serious crimes.
. . . Kimble’s claim that he was not actually an accessory after the fact to the
homicide at issue here is not relevant, as it does not matter whether the defendant
is actually guilty of the crime referenced in § 2X3.1 in order for the higher
sentence recommendation to be imposed.
Kimble, 305 F.3d at 485-86 (relying on United States v. Arias, 253 F.3d 453, 459 (9th Cir. 2001),
and citing Shabazz, 263 F.3d at 608) (quotation marks, editorial marks, and citations omitted).
In Arias, 253 F.3d at 459, the Ninth Circuit considered “whether the underlying offense
whose prosecution is obstructed must be proved by a preponderance of the evidence (or any
other measure) before applying § 2J1.2(c)(1),” and rejected such a requirement, explaining that:
[P]roof of the underlying offense is not material, because the point of the cross
reference is to punish more severely (and to provide a greater disincentive for)
perjury in, and obstruction of, prosecutions with respect to more serious crimes.
Other circuits have addressed the issue directly, and agree that the cross reference
in § 2J1.2(c)(1) must be applied without regard to the defendant’s guilt on the
underlying offenses. See, e.g., United States v. McQueen, 86 F.3d 180 (11th Cir.
1996); United States v. Dickerson, 114 F.3d 464 (4th Cir. 1997); United States v.
Russell, 234 F.3d 404 (8th Cir. 2000).
No court of which we are aware[5] would permit inquiry into the sufficiency of the
evidence on the underlying offense whose prosecution was obstructed.
Id. (footnote, quotation marks, and certain citations omitted; paragraph break inserted).
Looking to Shabazz, 263 F.3d at 610-11, we concede that the cited language supports
Greer’s claim that that the § 2X3.1 cross reference applies only to underlying offenses for which
the State has obtained a conviction or which have been established as relevant conduct. But the
facts in Shabazz differ materially from the facts before us here, and further assessment of the
Shabazz opinion is necessary to put this language, and premise, in proper context for our
purposes, which also leads to the likelihood that, even in Shabazz, that language might be dicta.
5Arias predated Shabazz by a little over two months.
No. 16-5701 United States v. Greer Page 8
Khalid Shabazz had not been involved in the underlying crime in any way—he was
merely an opportunist who approached a criminal defendant in the midst of trial, offering to sell
him a favorable vote from a corrupt juror. Id. at 604. The underlying crime was part of a large
organized-crime prosecution in which the defendant, Paul Corrado, was charged with conspiracy
to commit murder, among other things. Id. After Shabazz was caught and pled to obstructing
justice, the court applied USSG §§ 2J1.2 and 2X3.1 at sentencing. Id. at 605. But in setting
Shabazz’s offense level based on the underlying offense, the court used Corrado’s adjusted total
offense level rather than his base offense level, meaning that it calculated Shabazz’s offense
level based on factors peculiar to Corrado, of which Shabazz was unaware and which were
wholly unrelated to Shabazz’s criminal act of obstruction. As we framed it:
This appeal raises a question of first impression in the interpretation and
application of U.S.S.G. § 2X3.1: whether the base offense level determined under
that guideline by reference to the underlying offense obstructed begins with the
total offense level or the base offense level of that underlying offense.
Put in the context of this case, the issue is whether the district court erred by
calculating Shabazz’s offense level based simply on Paul Corrado’s total offense
level, which included adjustments for multiple counts, role in the offense, and
specific offense characteristics.
Id. at 608 (paragraph break inserted). We held, simply and succinctly, that the Guidelines direct
“the sentencing court to apply the base offense level of the underlying offense obstructed plus
any applicable specific offense characteristics that were known, or reasonably should have been
known, by the defendant.” Id. (quoting USSG § 2X3.1, comment. n.1) (editorial and quotation
marks omitted). We remanded because “the district court erred by simply adopting Corrado’s
total offense level of 33 as a component of Shabazz’s base offense level.” Id.
All that is to say that Shabazz stands for the rule that, in applying USSG § 2X3.1, the
sentencing court must use the underlying offense’s base offense level not total offense level. In
deciding Shabazz, we were not asked nor did we consider whether Shabazz’s level could be
enhanced based on Corrado’s crimes that were investigated but uncharged or acquitted—the
question was whether Shabazz’s offense level could be enhanced based on Corrado’s PSR-based
“adjustments for multiple counts, role in the offense, and specific offense characteristics,” id. at
608. While we certainly opined that § 2X3.1 uses “the offense level of the underlying crime of
No. 16-5701 United States v. Greer Page 9
conviction, not all offenses for which a principal stood trial,” id. at 610, that was not a question
that was fully or properly before us, leaving it without force or effect in the present case.
Consequently, Shabazz must be limited to its core holding that the sentencing court
applying USSG § 2X3.1 must use the underlying offense’s base offense level (along with the
applicable specific offense characteristics that the State can show were known or reasonably
should have been known to the obstructing defendant), not the total offense level. We therefore
decline to apply the cited Shabazz language to the present case or circumstances.
We return now to Greer’s argument that, by its plain language, the Guidelines
Commentary prohibits application of the cross reference because the State did not establish that
he “[wa]s convicted,” USSG § 2X3.1 cmt., or even that a crime “was committed,” USSG § 2J1.2
cmt. The Guideline’s Commentary is neither purely advisory (non-binding) nor “binding in all
instances.” Stinson v. United States, 508 U.S. 36, 43 (1993). Instead:
[T]he guidelines are the equivalent of legislative rules adopted by federal agencies
. . . [and the] commentary is akin to an agency’s interpretation of its own
legislative rules. . . . [P]rovided an agency’s interpretation of its own regulations
does not violate the Constitution or a federal statute, it must be given controlling
weight unless it is plainly erroneous or inconsistent with the regulation.
Id. at 45 (quotation marks and citations omitted); see also Beckles v. United States, 580 U.S. --,
137 S. Ct. 886, 897 (2017) (Ginsburg, J., concurring) (explaining that the commentary is
“authoritative,” pursuant to Stinson). Thus, for purposes of this analysis, if Greer’s proffered
interpretation was truly the Commission’s intended interpretation, the question is whether such
interpretation is plainly erroneous or inconsistent with the Guidelines themselves.
We find it unlikely that the Guidelines intended that a defendant should avoid or
minimize punishment for obstruction of a criminal investigation just because that obstruction
was so successful that he prevented a conviction on the underlying crime, or because the
obstruction was of an investigation for which, as it might turn out, there actually was no
underlying crime. More likely, the Guidelines intended that the obstruction of a criminal
investigation is punishable even if the prosecution is ultimately unsuccessful or even if the
investigation ultimately reveals no underlying crime. Moreover, as we said in Kimble, 305 F.3d
at 485-86, obstruction of the investigation of a more serious crime is correspondingly more
No. 16-5701 United States v. Greer Page 10
serious than that of an investigation into a less serious crime and warrants more punishment. For
example, obstructing a murder investigation is more serious than obstructing a trespassing
investigation and warrants more severe punishment to discourage such obstruction, regardless of
whether either investigation results in prosecution or conviction. Someone who obstructs a
murder investigation risks severe punishment, even if he knows the suspect is innocent, because
a murder investigation itself is a very serious thing and its obstruction cannot be tolerated.
This is to say that we find the proposed interpretation plainly erroneous and inconsistent
with the Guidelines. In so concluding we also note that every other Circuit to consider this has
also held that the State need not prove that the defendant committed the underlying crime, thus
likewise rejecting such an interpretation. See United States v. Olsen, 519 F.3d 1096, 1105-06
(10th Cir. 2008); Arias, 253 F.3d at 461 (9th Cir.); Russell, 234 F.3d at 409-10 (8th Cir.); United
States v. Suleiman, 208 F.3d 32, 38 (2d Cir. 2000); Dickerson, 114 F.3d at 468 (4th Cir.); United
States v. Martinez, 106 F.3d 620, 622 (5th Cir. 1997); McQueen, 86 F.3d at 182-83 (11th Cir.).
We find no error in the district court’s application of USSG § 2X3.1 in calculating
Greer’s advisory guidelines for purposes of setting his sentence.
B.
Ordinarily, we review the reasonableness of the sentence for an abuse of discretion and
findings of fact for clear error. Schock, 862 F. 3d at 566-67. If, however, a defendant fails to
raise the claim at sentencing, then our review is for plain error. United States v. Vonner, 516
F.3d 382, 385-86 (6th Cir. 2008). Greer argues that his sentence was substantively unreasonable
because the district court improperly relied on unproven factual allegations concerning the
female driver and placed too much weight on the deterrence factor.
Greer argues that the district court improperly relied on unfounded allegations, namely
three facts that he claims were not proven by a preponderance of the evidence: (1) that the sex
was an assault, (2) that the woman was intoxicated or smelled of alcohol, and (3) that Greer
knew she had an outstanding arrest warrant. Because Greer did not raise these at sentencing, we
would review for plain error, but this argument is so entirely unfounded that he cannot show any
No. 16-5701 United States v. Greer Page 11
possible error.6 The sentencing transcript establishes that the district court sentenced Greer for
his “[l]ying in an official investigation,” R. 53 at 43 (transcript), not because the sex was rape, or
because the woman was intoxicated, or because she had an outstanding warrant.
Greer also argues that the district court failed to consider the § 3553 factors properly, in
that it placed too much weight on the general deterrence factor—emphasizing that Greer was a
police officer and it wanted to deter other police officers—and failed to appreciate (or accept)
Greer’s argument that the length of a sentence does not act as a deterrent. In this latter argument,
Greer and his attorney argue, counterintuitively, that a shorter sentence would be a more
effective deterrent than a longer sentence. See Apt. Br. at 30 (“Thus, the district court’s goal of
general deterrence of other police officers would be met by a much shorter sentence.”). Greer
also argues that because, given this prosecution, he would not be hired as a police officer again
anyway, deterrence should not be a consideration in his sentencing at all.
But, as the State points out, the court did consider the other § 3553 factors and, in fact,
that was why it departed below the advisory range (10 months below) in setting the actual
sentence. Moreover, Greer’s main legal contention is wrong—a court may emphasize a
particular factor. See United States v. Zobel, 696 F.3d 558, 571 (6th Cir. 2012) (“a district court
does not commit reversible error simply by attaching great weight to a single factor” (marks
omitted)). And the goal of deterrence extends well beyond Greer himself. All told, Greer cannot
overcome the presumption that the sentence is reasonable.
C.
Finally, Greer argues that he was entitled to a downward departure for “aberrant
behavior” (§ 5K2.20) or “victim misconduct” (§ 5K2.10). He claims the court improperly
considered “aberrant behavior” in light of all police officers, when it should have considered
only him. He does not elaborate on his “victim misconduct” claim beyond mere assertion.
But “[t]he law in this circuit is clear that we have no jurisdiction to review a decision of a
district court not to depart downward[,] unless the record shows that the district court was
6Regardless, these facts were set out in the PSR and Greer did not object to them there, so the district court
would have been entitled to rely on them on that basis. Fed R. Crim. P. 32(i)(3)(A).
No. 16-5701 United States v. Greer Page 12
unaware of, or did not understand, its discretion to make such a departure.” United States v.
Bazazpour, 690 F.3d 796, 804 (6th Cir. 2012) (quotation marks omitted). There is no indication
in the record here that the district court felt constrained in the exercise of its discretion.

Outcome: For the foregoing reasons, we AFFIRM the judgment of the district court.

Plaintiff's Experts:

Defendant's Experts:

Comments: