Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding D.C. No. 1:09-cr-00033-EJL-3.
The opinion of the court was delivered by: Berzon, Circuit Judge
Argued and Submitted August 2, 2010 -- Seattle, Washington.
Before: William C. Canby, Jr., John T. Noonan and Marsha S. Berzon, Circuit Judges.
Richard C. Armstrong was convicted by a jury of participating in a racially motivated assault against an African American man. Armstrong now appeals his sentence. He contends that the district court erred in imposing two enhancements: one for selecting a victim on the basis of race and one for obstruction of justice. Additionally, he argues that the sentence as a whole was procedurally flawed and substantively unreasonable. We address whether a defendant may avoid an enhancement for selecting a victim on the basis of race if his co-defendant selected the victim before he did. We decide that he may not. Because we also disagree with Armstrong's other two contentions, we affirm the sentence imposed by the district court.
We begin by reciting the evidence favoring the jury's verdict: Armstrong, Michael Bullard, and James Whitewater went to Wal-Mart around midnight on a Saturday night to buy orange juice. In the juice aisle, they noticed Raylen Smith, an African American man, shopping for milk. Smith did not interact with the three strangers but noticed they were talking and laughing among themselves. He was not aware that they were using racially derogatory remarks like "spook" and "nigger" in reference to him. On the way to the checkout aisle, Bullard told his companions that he would fight Smith, and the group began to discuss the idea. As Smith got in line behind them, he noticed Bullard staring at him. Smith did not stare back or say anything to the group.
After Armstrong, Whitewater, and Bullard purchased the orange juice, they waited outside the store for Smith. When Smith left the store and walked to the parking lot, he was confronted by Bullard, who flicked his cigarette at Smith and asked, "Do you know what country you're in?" Smith, surprised and fearful, attempted to run away. The three men chased after Smith, Armstrong yelling, "Get him, get that fucking nigger." Bullard caught up with Smith first, at the end of the parking lot, and tackled him; both rolled down a hill toward a canal. Armstrong and Whitewater approached the fight moments later and began hitting and kicking Smith while he was on the ground. The three assailants beat Smith until he was unconscious. The assailants then fled the scene, returning to Armstrong's apartment. After bragging about and congratulating each other on the attack, they agreed among themselves that, if anyone asked, there was no racial aspect to the assault and Bullard would take the blame, "saying it was a one-on-one fight, nothing racial was ever said."
Security footage from Wal-Mart enabled the police to locate the attackers about a month after the incident. The footage showed Bullard, Whitewater, and Armstrong chasing Smith into the parking lot but did not capture the beating. Armstrong spoke to the police in a recorded interview and admitted that members of the group, including him, directed racial slurs at Smith.
The United States filed a two-count indictment against Armstrong, Bullard, and Whitewater: the first count charged the defendants with conspiring to injure, oppress, threaten, and intimidate Smith in the free exercise of his right to use a place of public accommodation free from interference based on race, in violation of 18 U.S.C. § 241; and the second with using force to willfully injure, intimidate, and interfere with Smith because of his race and because he was enjoying the goods and services of an establishment that serves the public, in violation of 18 U.S.C. §§ 245(b)(2)(F), 2. Whitewater pled guilty to the first count.
Armstrong and Bullard went to trial. Contradicting his police interview, Armstrong denied that the group directed any racial slurs at Smith; denied that he himself had used any racial slurs that night; and denied that there was any racial motivation for the attack. Armstrong also claimed that he took no part in the assault against Smith and only chased after Bul-lard to pull him off of Smith. Opposing testimony by Whitewater and Smith supported the jury's finding that Armstrong had committed the offense and had done so because of Smith's race. The jury returned verdicts of guilty for Bullard and Armstrong on both counts.
The Presentence Report ("PSR") determined Armstrong's base offense level to be 12 and recommended a "victim related adjustment," because the jury determined beyond a reasonable doubt that the defendant intentionally selected the victim because of the victim's race. Under U.S.S.G. § 3A1.1(a), Armstrong's racial motivation in attacking Smith increased the offense level by 3. Thus, the PSR calculated a total offense level of 15 and a criminal history category of V, suggesting an imprisonment range of 37-46 months.
At sentencing, the court imposed not only the three-level upward adjustment under U.S.S.G. § 3A1.1(a) but also an additional two-level upward adjustment under U.S.S.G. § 3C1.1 for Armstrong's false testimony at trial, as proposed by the government in a letter to the probation officer. The court calculated a total offense level of 17 and an imprisonment ...