Obstruction of justice enhancement was unwarranted; other claims rejected

US v. Wells, No. 20-1228, 38 F.4th 1246 (10th Cir. July 6, 2022) The defense wins a remand for purposes of reconsidering the upward adjustment at sentencing for obstruction of justice, but loses all challenges to the conviction itself and his other sentencing claims. The defendant was charged with, and convicted after a jury trial of, aggravated sexual abuse, assault with intent to commit aggravated sexual abuse, assault resulting in serious bodily injury, and assault with a dangerous weapon following a horrific series of events in which defendant assaulted, raped and seriously injured his wife. The district court concluded that the defendant’s advisory guideline range was life in prison, but varied downward to 360 months imprisonment after analyzing the sentencing factors. Defendant first challenged two jury instructions. The Tenth Circuit concluded that the defendant had invited both errors by stipulating to the instructions. The Court rejected the defendant’s claim that the district court should have set aside his conviction under 18 U.S.C. sec. 113(a)(1) because (1) it was multiplicitous with his sec. 2241(a)(1) conviction and (2) sec. 113(a)(1) was so incomprehensible that a conviction under it violated due process. The Court found that the defendant failed to demonstrate plain error with regard to either argument. With regards to the first argument, an assault under sec. 113(a)(1) will not necessarily satisfy the force requirement of sec. 2241(a)(1), and 113(a)(1) is not plainly a lesser included offense of 2241(a)(1). The Court rejected the vagueness challenge on the grounds that the defendant’s assault against his wife was prolonged, involved, and brutal, and was clearly done with the specific intent to commit aggravated sexual abuse. The defendant challenged the admission of the testimony of the trauma doctor regarding the victim’s injuries and risk of death. The Tenth Circuit found no error in allowing the doctor’s testimony because the testimony met the requirement that it had “any tendency” to demonstrate that the victim suffered serious bodily injury within the meaning of sec. 1365(h)(3). The abduction enhancement was upheld because the defendant three times grabbed the victim by the hair as she was at the door to leave the house, and dragged her through the kitchen to a back bedroom. The enhancement for inflicting permanent or life-threatening bodily harm was upheld based on the trauma surgeon’s testimony. The Court emphasized that the applicability of the enhancement is “risk” based, as measured at the time of the assault, and thus the fact that the injury is ultimately cured is not relevant to assessing the enhancement. However, the Court agreed with the defense that the mere fact that the defendant violated a no-contact order by sending a letter to the victim did not trigger application of the obstruction of justice enhancement. Additionally, the district court erred by concluding that the letter was an attempt by the defendant to influence the victim’s testimony at the sentencing hearing or her right to obtain restitution; any such conclusion was speculation and not supported by the record.