United States v. Ortega

In United States v. Ortega, —- F.4th —-, No. 23-50100 (5th Cir. Feb. 15, 2024), the Fifth Circuit vacated the defendant’s sentence and remanded his case for resentencing. The court found that the district court had erred by adding a two-level Sentencing Guideline enhancement for obstruction of justice.

After Ortega had pled guilty, his wife visited him in jail, and the couple discussed what she would say in support of Ortega at his sentencing. Ortega’s wife said she did not know how to start the letter, and Ortega said to tell the judge this was out of character for Ortega and that his real issue was with drug addiction. That conversation was recorded, and based on the recording, the PSR recommended a two-level enhancement because Ortega had obstructed justice by telling his wife what to tell the judge. At sentencing, the judge agreed and imposed the obstruction enhancement.

On appeal, the Fifth Circuit began by describing what qualifies as obstructive conduct under USSG § 3C1.1. It quoted its earlier precedent as a summary: all the obstructive conduct examples in the Guidelines are “egregiously wrongful behavior whose execution requires a significant amount of planning and presents an inherently high risk that justice will in fact be obstructed.” United States v. Greer, 158 F.3d 228, 233 (5th Cir. 1998). The examples include “threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so.” USSG § 3C1.1, cmt. n.4.

The Government offered two arguments in support of the obstruction enhancement: (1) Ortega directed his wife to blame his drug addiction even though she lacked personal knowledge about his drug use, and (2) Ortega “tried to influence [her] testimony to align with his.” As for the first argument, the Government had forfeited that by never arguing it in the district court, but regardless, the PSR was clear that Ortega had “extensive drug use” during his marriage so his wife likely knew.

As for the second argument, Ortega had only told his wife to say true things, each of which found support in the record. He had simply, “tried to create a unified, arguably truthful narrative between the two of them.” Ultimately, an “endeavor to influence a witness to tell the truth” is not obstruction. Under USSG § 3C1.1, a defendant has not obstructed justice simply by trying to influence a witness to say true things — that is not, the court explained, “egregiously wrong behavior.”

Because the obstruction enhancement should not have applied, the case was remanded for Ortega to be resentenced under a lower Guideline range.