United States v. Bailey: Court Holds Guidelines Cross-Reference Provision Covers Attempts to Obstruct

After a jury convicted her then-boyfriend, Michael Clayton, of sexually exploiting a minor, Davi Bailey used Facebook Messenger to send threatening messages to one of the testifying witnesses and her sister.  Bailey subsequently pleaded guilty to one count of witness retaliation in violation of 18 U.S.C. § 1513(b)(1), (c) and 18 U.S.C. § 1591(a)(1), (b)(2) for threatening the witness's sister after the trial.  She subsequently appealed the 78-month sentence imposed by the District Court.

On appeal, Bailey challenged both the procedural and substantive reasonableness of her sentence.  In particular, she argued that the District Court erred in applying the cross-reference pursuant to USSG § 2J1.2(c)(1) because it does not apply to attempted obstruction and Clayton was ultimately convicted.

The Court disagreed.  Citing language from the obstruction of justice provision, USSG § 2J1.2, dicta in its prior decision in United States v. Roche, and case law from other circuits, the Court held that cross-reference provision covers attempted obstruction.  It also did not matter, the Court concluded, that Bailey made her threats after Clayton had been convicted since the prosecution did not end until he had been sentenced.

You can find the Court's opinion here.