In U.S. v. Newman, No. 09-14557 (Aug. 17, 2010), the Court affirmed the imposition of a sentence enhancement under USSG § 2J1.2(b)(2) for “substantial interference with the administration of justice.” Newman was convicted of removing his child outside the United States with the intent to obstruct the other parent’s lawful exercise of parental rights. The enhancement was based on Newman’s “self-help” reaction in response to a state court custody order. The Court rejected the argument that this basis created a “per se rule” that the enhancement would apply in all custody cases where an order has issued. It is the nexus between Newman’s dissatisfaction with the custody determination and his intent to frustrate it, not the order itself, that renders the enhancement applicable.
The Court reversed a § 2J1.2(b)(3) enhancement that had been based on a finding that because Newman took the child to Yemen, the offense was “otherwise extensive in scope, planning, or preparation.” The Court noted that nothing in the record supported a finding that Newman took his son to Yemen because it would be difficult to find him there. Rather, the evidence indicated that Newman went to Yemen for “religious and cultural reasons.”
The Court also rejected the argument that the duration of the removal counted as “extensive.” The Court held that “duration” is a separate aspect of an offense from “scope.”
