In U.S. v. Harrell, No. 06-15410 (April 17, 2006), on a government appeal, the Court held that the sentencing court erred in declining to impose the Guidelines cross-reference enhancement for obstruction of justice, USSG § 2J1.2, with regard to obstruction that occurred "in respect to" other underlying crimes.
The defendant was convicted of obstruction of justice for attempting to convince a witness to support his version of a conversation he had with another person, which itself also involved witness tampering. At sentencing, the government claimed that the obstruction of justice sentence should be enhanced, in accord with the guideline cross-reference provision, based on the seriousness of the underlying crimes for which Harrell was being prosecuted when he obstructed justice.
The Court agreed that the Guideline enhancement should apply with respect to the underlying crimes for which the prosecution would have been obstructed had the tampering been successful, for example, if a prosecution’s witness’ credibility was successfully undermined. However, the enhancement would not apply to charges that were severed from the trial at which Harrell’s obstruction conduct was at issue. "For the obstruction of justice [enhancement] to be cross-referenced, the obstruction of justice must have had the potential to disrupt the government’s investigation or prosecution of [the] crimes."
