“Endeavoring” to Obstruct On-Going Investigation Same as Obstructing Investigation for Guidelines Purposes

United States v. Giovanelli, Docket No. 04-5763-cr (2d Cir. Sep. 27, 2006) (Calabresi, Pooler, Parker) (per curiam): This opinion principally holds that when a defendant is constructed of “endeavoring” to obstruct an on-going criminal investigation (here, by passing secret grand jury information to a target of the investigation) under 18 U.S.C. § 1503’s “omnibus” clause, Section 2J1.2(c) of the Guidelines — the general obstruction Guideline that requires, via cross-reference, the use of Section 2X3.1 (accessory after the fact) whenever the “offense involved obstructing the investigation or prosecution of a criminal offense” — governs. Giovanelli argued that because he was convicted only of endeavoring to obstruct rather than actually obstructing, § 2J1.2(c) (and a fortiori § 2X3.1) was not implicated. Cf. United States v. Aguilar, 515 U.S. 593, 601-02 (1995) (explaining that “endeavoring” prong of § 1503 “makes conduct punishable where the defendant acts with an intent to obstruct justice, and in a manner that is likely to obstruct justice, but is foiled in some way.”). This was important because while § 2J1.2 sets a base offense level of 14, § 2X3.1 sets a significantly higher base offense level (here, 30) because the criminal investigation Giovanelli endeavored to obstruct concerned, among other things, murder. The Court disagreed, joining the other four Circuits that have ruled on this issue. Op. 12.