United States of America v. Donald Lynn Baggett

*The Honorable Edmund A. Sargus, Jr., United States District Judge
for the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0311P (6th Cir.)
File Name: 03a0311p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD LYNN BAGGETT,
Defendant-Appellant.
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No. 01-6379
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 99-20120—Bernice B. Donald, District Judge.
Argued: February 7, 2003
Decided and Filed: August 28, 2003
Before: DAUGHTREY and COLE, Circuit Judges;
SARGUS, District Judge.*
_________________
COUNSEL
ARGUED: Needum L. Germany, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
2 United States v. Baggett No. 01-6379
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Tracy L. Berry, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Stephen B. Shankman, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Tracy L. Berry, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
_________________
OPINION
_________________
SARGUS, District Judge. Defendant-Appellant Donald
Baggett was convicted by a jury on charges of interstate
domestic violence, in violation of 18 U.S.C. § 2261(a)(2). On
appeal, Baggett asserts that the district court erred in
computing his sentence by improperly applying a six-level
enhancement based on a finding that the victim suffered
permanent or life-threatening bodily injury as defined in
United States Sentencing Guidelines (“U.S.S.G.”)
§ 2A2.2(b)(3) and a two-level enhancement for obstruction
of justice under U.S.S.G. § 3C1.1. Although the first issue
involving the degree of injury to the victim presents a
straight-forward question of fact that requires little analysis,
the more important issue in this case is whether conduct that
starts before the commencement of prosecution, but continues
while the prosecution is in progress, can be used to support an
enhancement for obstruction of justice under U.S.S.G.
§ 3C1.1. While we reluctantly hold that pre-investigation
threats to a victim cannot satisfy the temporal element of the
guideline as it is presently structured, we nonetheless affirm
the imposition of the two-level enhancement for obstruction
of justice.

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No. 01-6379 United States v. Baggett 3
I.
In May of 1999, Baggett, a professional truck driver, took
his wife, Catherine Baggett, on a round trip from Tennessee
to California. On May 14, 1999, Mrs. Baggett overheard her
husband speaking to another truck driver about the physical
characteristics of an attractive female in a pickup truck
traveling on the same road. An argument between the
Baggetts then ensued and escalated into a violent
confrontation during which Appellant grabbed his wife by the
hair, “bounced her head off the steering wheel,” tore her shirt,
and choked her. Baggett then pulled the truck to the side of
the road, took his wife into the sleeper portion of the truck,
and continued slapping, punching, kicking and choking her.
Later in the day, Baggett again assaulted his wife while she
remained in the sleeper.
At some point during the trip, Mrs. Baggett testified,
Appellant told her that if she “ever tried to get him for
domestic violence or assault that he would kill [her] and he
would kill [her] baby, too.” Early the next morning,
Appellant drove the truck to the final destination in Memphis,
Tennessee. According to Mrs. Baggett, at the conclusion of
the trip, her head was “full of lumps,” she could not see or
hear, had “bruises everywhere,” a split lip, a broken finger
and cracked teeth. Patricia Cantrell, the receiving clerk at the
Kroger Distribution Center where the trip concluded, testified
that Mrs. Baggett was “bruised from head to toe, . . . her
knuckles were all bruised up, blue, black. She was – her nose
was full of blood, her hair was just all over her head. She was
red all over her face. She had red marks around her throat.”
Mrs. Baggett was subsequently taken to the hospital and
received treatment for her injuries, including kidney damage.
As noted in the presentence report, while awaiting trial,
Appellant wrote at least 20 letters to his wife. Although the
letters contained apologies and affectionate remarks, the
missives also expressed concern to Mrs. Baggett that she not
have to relive the “nightmare” in court. Baggett also assured
4 United States v. Baggett No. 01-6379
1After both verdicts were returned, the district judge entered a
judgment of acquittal on both co unts. On app eal, this Court reversed the
judgment of acquittal and remanded the case to the district court for
reinstatement of the jury’s verdict of guilty as to the interstate domestic
violence charge. United States v. Ba gge tt, 251 F.3d 10 87, 1096 (6th Cir.
2001).
his wife that “he would understand it if she failed to appear in
court.” The letters included a number of references to Mrs.
Baggett’s daughter, Erica, the same child Appellant
threatened to kill if Mrs. Baggett pursued domestic violence
charges against him. Appellant also wrote at least one letter
to Erica during his pretrial incarceration. The clear
implication, according to the presentence report, is that the
letters were sent to Mrs. Baggett in an attempt to discourage
her from appearing in court.
II.
Baggett was originally charged in a two-count indictment,
the first count alleging interstate domestic violence, in
violation of 18 U.S.C. § 2261(a)(2), and the second
kidnapping, in violation of 18 U.S.C. § 1201. The jury
returned a verdict of guilty as to the interstate domestic
violence count, while acquitting Baggett on the charge of
kidnapping.1
At sentencing, the district court determined that under
U.S.S.G. § 2A6.2, entitled “Stalking or Domestic Violence,”
a cross-reference was appropriate as directed under subpart
(c)(1). The court then applied the guideline for aggravated
assault under U.S.S.G. § 2A2.2. The district court also found
that Appellant should receive a six-point enhancement
because the assault involved permanent or life-threatening
bodily injury under U.S.S.G. § 2A2.2(b)(3)(C).
In addition, the district court also found that Baggett
engaged in obstruction of justice as recommended by the

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No. 01-6379 United States v. Baggett 5
presentence report. The district court thereupon sentenced
Appellant to a term of imprisonment of 51 months.
III.
Baggett first contends that the district court erred in
applying a six-level enhancement based upon a determination
that the victim suffered permanent or life-threatening bodily
injury. We review findings of fact made by the district court
for clear error, while the trial court’s interpretation of a
sentencing guideline is reviewed de novo. United States v.
Carter, 283 F.3d 755, 757 (6th Cir. 2002).
The Sentencing Guideline analysis begins with U.S.S.G.
§ 2A6.2, which specifically references the crime of conviction
in this case, interstate domestic violence, 18 U.S.C. § 2261.
This guideline also provides that “[i]f the offense involved the
commission of another criminal offense, apply the offense
guideline from Chapter Two, Part A (Offenses Against the
Person) most applicable to that other criminal offense, if the
resulting offense level is greater than that determined above.”
U.S.S.G. § 2A6.2(c)(1).
The district court determined that Appellant’s conduct
involved an aggravated assault and that the cross-reference
therefore applied. While this determination is not challenged
by Baggett, he does contend that under U.S.S.G. § 2A2.2, the
district court incorrectly applied a six-level enhancement for
the infliction of permanent or life-threatening bodily injury.
Under U.S.S.G. § 2A2.2(b)(3), “[i]f the victim sustained
bodily injury, increase the offense level according to the
seriousness of the injury:
Degree of Bo dily Injury Increase in Level
(C) Permanent or Life-Threatening Bodily Injury add 6
6 United States v. Baggett No. 01-6379
The Sentencing Guidelines further provide a definition of
permanent or life-threatening bodily injury in Application
Note 1(g), U.S.S.G. § 1B1.1 to include:
injury involving a substantial risk of death; loss or
substantial impairment of the function of a bodily
member, organ, or mental faculty that is likely to be
permanent; or an obvious disfigurement that is likely to
be permanent. In the case of a kidnapping, for example,
maltreatment to a life-threatening degree (e.g., by denial
of food or medical care) would constitute life-threatening
bodily injury.
The district court reviewed the extensive injuries sustained
by Mrs. Baggett and emphasized the fractured finger, the
cracked tooth and substantial contusions and bruises as
depicted in various photographs. The court also recounted the
testimony from the witness at trial that Mrs. Baggett literally
crawled into the Kroger Distribution Plant with very visible
injuries together with spatial disorientation. Further, while
the district court was not persuaded that Mrs. Baggett’s
kidney problems were caused by the assault, the court
concluded that the combination of the various conditions
together with severe bleeding, bruising and broken bones
could reasonably be viewed as amounting to a life-threatening
bodily injury.
As we have held, “‘where there are two permissible views
of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.’” Pledger v. United States, 236 F.3d
315, 320-21 (6th Cir. 2000) (quoting Anderson v. City of
Bessemer City, 470 U.S. 564, 567 (1985)). The analysis here
is highly fact specific. As noted in United States v. Hamm, 13
F.3d 1126, 1128 (7th Cir. 1994), “the district court is by far
best-suited to assess that myriad of factors observable in
hearing the evidence presented.”

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No. 01-6379 United States v. Baggett 7
We conclude that the finding by the district court that
Baggett inflicted permanent or life-threatening bodily injury
to the victim was not clearly erroneous.
IV.
Baggett also contends that the district court erred in
assessing a two-point enhancement for obstruction of justice
under U.S.S.G. § 3C1.1. As we have recently explained, a
district court’s imposition of an enhancement for obstruction
of justice is reviewed under a trifurcated standard. United
States v. Camejo, 333 F.3d 669, 674-75 (6th Cir. 2003). First,
we review the factual determinations made by the district
court for clear error. Id. at 675 (citing United States v.
McDonald, 165 F.3d 1032, 1033-34 (6th Cir. 1999)). Second,
the determination that certain conduct constitutes obstruction
of justice, which is a mixed question of law and fact, is
reviewed de novo. Id. Third, because the application of the
obstruction enhancement is non-discretionary, the actual
imposition of the enhancement is reviewed de novo. Id.
At the sentencing hearing, the prosecution argued that there
were two separate bases for applying the obstruction of justice
enhancement. First, the prosecution contended that the letters
written by Baggett to his wife and stepdaughter were intended
to encourage her not to appear at the trial. In addition, the
Government also argued that Baggett’s threat to kill Mrs.
Baggett and her child if she attempted to charge him with
domestic violence amounted to tampering with the witness.
The district court rejected the Government’s argument that
the letters written by Baggett amounted to obstruction of
justice. However, the court found that the threats
communicated to Mrs. Baggett, before Appellant was under
investigation for interstate domestic violence, constituted
obstruction of justice.
A common sense approach to the issue would dictate that
a defendant’s threat to kill a victim if she reported him to law
8 United States v. Baggett No. 01-6379
enforcement authorities constitutes obstruction of justice.
The guideline at issue is not so straightforward. Section
3C1.1 provides as follows:
If (A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice during the course of the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i)
the defendant’s offense of conviction and any relevant
conduct; or (ii) a closely related offense, increase the
offense level by 2 levels.
U.S.S.G. § 3C1.1 (emphasis added).
The literal language of Section 3C1.1 requires that a
defendant engage in obstruction of justice “during the course
of the investigation, prosecution, or sentencing of the instant
offense of conviction.” Consequently, a defendant who
engages in obstructive conduct prior to the investigation,
prosecution, or sentencing of the instant offense is not subject
to the enhancement.
This result is not unintended. In 1998, in Amendment 581,
the United States Sentencing Commission modified the
language found in Section 3C1.1 to clarify that the term
“instant offense” refers either to the defendant’s offense of
conviction or to a closely-related case. The amendment
further clarified what the Commission termed “the temporal
element of the obstruction guideline (i.e., that the obstructive
conduct must occur during the investigation, prosecution, or
sentencing of the defendant’s offense of conviction).” The
Commission also added Application Note 1 which states as
follows:
This adjustment applies if the defendant’s obstructive
conduct (A) occurred during the course of the
investigation, prosecution, or sentencing of the
defendant’s instant offense of conviction, and (B) related

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No. 01-6379 United States v. Baggett 9
to (i) the defendant’s offense of conviction and any
relevant conduct; or (ii) an otherwise closely related case,
such as that of a co-defendant.
Following the Amendment, this Circuit has adhered to the
requirement that the enhancement for obstruction of justice
may only be imposed if the defendant engaged in obstructive
conduct “with knowledge that he or she is the subject of an
investigation or with the ‘correct belief’ that an investigation
is ‘probably underway.’” United States v. Brown, 237 F.3d
625, 628 (6th Cir. 2001) (citations omitted). Similarly, in
United States v. Boyd, 312 F.3d 213, 217 (6th Cir. 2002), we
reaffirmed the requirement that a defendant have knowledge
of an investigation before the obstruction of justice
enhancement may be imposed. It is axiomatic that we must
now follow the circuit precedent. Sixth Cir. Internal
Operating P. [Admin. R.] 206(c); United States v.
Washington, 127 F.3d 510, 517 (6th Cir. 1997).
Applying this strictly temporal analysis, we are forced to
conclude that the obstruction enhancement cannot be
sustained on the basis articulated by the district court because
Baggett did not threaten to kill his wife and her daughter
“during the course of the investigation, prosecution, or
sentencing of the defendant’s instant offense of conviction
. . . or . . . [in] an otherwise closely related case, such as that
of a co-defendant.” We reach this conclusion reluctantly,
however, because it seems counter-intuitive to say that threats
made by a defendant to prevent a victim from reporting
conduct that later results in a conviction do not constitute
obstruction of justice. In this case, Appellant clearly acted to
prevent the actual investigation and prosecution of the offense
of conviction. It is difficult to imagine a more compelling set
of circumstances upon which the enhancement for obstruction
of justice should apply.
Nevertheless, we also recognize that the Sentencing
Commission was correctly concerned that an expansive
interpretation of U.S.S.G. § 3C1.1 could result in an
10 United States v. Baggett No. 01-6379
2Prior to the 1998 Amendments, the Co urt of Appe als for the Seventh
Circuit in United States v. Lallemand, 989 F.2d 93 6, 938 (7th Cir. 1993),
noted that obstructive behavior can begin prior to an investigation. As an
example, the court noted the following scenerio: “Suppose the defendant
had told [a third party] that in the event the victim went to the authorities
[the third party] was to kill the victim and any other witnesses.” Id.
obstruction enhancement for conduct not directly related to
the offense of conviction. The temporal requirement serves
to require, at least in an indirect sense, a nexus between the
acts of obstruction and the crime of conviction. With no
causal link to the crime of conviction, obstructive conduct
could conceivably include acts wholly unrelated to the crime
of conviction or conduct that should have been the subject of
separate criminal charges. As this case demonstrates,
however, in at least some cases, a defendant may clearly
obstruct justice with regard to the offense of conviction
through conduct occurring before the commencement of an
investigation or prosecution. Here, a causal link between the
crime of conviction and the obstructive conduct is clearly
present. A compelling argument can be made that the
enhancement should apply as to acts designed to actually
prevent investigation or prosecution as to the crime of
conviction.2
Although we must hold that the threats made by Baggett to
his wife while she remained in his tractor-trailer cannot
support the obstruction enhancement, we further conclude
that the record contains more than sufficient facts to establish
obstructive conduct occurring after the investigation and
prosecution began. While in custody and awaiting trial,
Baggett sent no fewer than 20 letters to his wife and one to
his stepdaughter. We agree with the conclusion in the
presentence report that these letters, which contained
numerous references to Baggett’s stepdaughter, the same
child he threatened to kill if Mrs. Baggett went to the
authorities, were attempts to discourage Mrs. Baggett from
appearing in court. Further, these letters, which followed
upon the original threat to kill Mrs. Baggett if she went to the

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No. 01-6379 United States v. Baggett 11
police, represent a continuum of conduct designed to obstruct
justice. The letter-writing continued long after Baggett’s
arrest on charges leading to the offense of conviction.
We therefore sustain the imposition of the enhancement for
obstruction of justice on grounds other than those adopted by
the district court, as permitted by United States v. Bonds, 12
F.3d 540, 557 (6th Cir. 1994), based upon a continuum of
obstructive conduct, beginning with the Appellant’s threat to
kill his wife if she reported his crimes to authorities and
concluding with the subsequent letters written to her and her
stepdaughter while he was awaiting trial on these charges.
V.
Based upon the foregoing, the sentence imposed by the
district court is AFFIRMED.

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