UNITED STATES of America, Appellee, v. Michael L. OLSEN, Defendant-Appellant, 503 F. App'x 76

SUMMARY ORDER Defendant-Appellant Michael Olsen appeals from a judgment of conviction entered on March 11, 2011 by the United States District Court for the District of Vermont (Sessions, /.). On September 28, 2010, Olsen pled guilty to multiple counts of distributing cocaine, money laundering, and obtaining confidential phone records without authorization. On March 4, 2011, the district court sentenced Olsen principally to 235 months of imprisonment. Olsen appeals from this sentence, arguing that the district court applied a two-level obstruction of justice enhancement based on unreliable evidence.

We assume the parties’ familiarity with the relevant facts, the procedural history, and the issues presented for review. “[I]n determining the appropriate standard of review for a district court’s application of the Guidelines to the specific facts of a case, [this Court] ... follow[s] an either/or approach, adopting a de novo standard of review when the district court’s application determination was primarily legal in nature, and adopting a clear error approach when the determination was primarily factual.” United States v. Gotti, 459 F.3d 296, 349 (2d Cir.2006) (internal quotation marks omitted).

Because Olsen argues that the evidence did not support the district court’s factual determinations, we review only for clear error. “Clear error exists when we are left with the definite and firm conviction that a mistake has been committed.” United States v. Archer, 671 F.3d 149, 161 (2d Cir.2011) (internal quotation marks and alterations omitted). “Factual findings based on the testimony and observation of witnesses are entitled to particular deference, since assessing the credibility of witnesses is distinctly the province of the district court.” United States v.

Cuevas, 496 F.3d 256, 267 (2d Cir.2007) (internal quotation marks and citation omitted). An obstruction of justice enhancement is warranted “[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. Examples of such conduct include “threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so.” U.S.S.G. § 3C1.1 cmt. n. 4(A).

Here, the evidence amply showed that Olsen threatened, intimidated, and otherwise attempted to influence multiple witnesses. Considering one of the three examples the district court found significant, the evidence showed that Olsen (1) accessed the phone records of a DEA agent without permission, (2) used those records to identify a cooperating witness, (3) convened a meeting with his co-conspirators, and (4) instructed one co-conspirator to ensure that the cooperating witness did not show up in court.

While Olsen disparages the credibility of the Government’s witnesses, the minor inconsistencies in testimony on which Olsen relies do not support a finding of clear error, particularly given the substantial deference we afford the district court regarding questions of credibility. The district court also found that Olsen had instructed a co-conspirator not to provide information to law enforcement and told a co-defendant to “keep his mouth shut” while that codefendant was in prison.

Each of these actions, as well as Olsen’s decision to order a coconspirator to prevent a cooperating witness from testifying, would alone warrant the application of the obstruction of justice enhancement. See United States v. Agudelo, 414 F.3d 845, 351-52 (2d Cir.2005) (upholding application of the obstruction of justice enhancement where defendant threatened to frame a co-conspirator for kidnapping if he testified); see also United States v.

Gaskin, 364 F.3d 438, 465-66 (2d Cir.2004) (sustaining application of the obstruction of justice enhancement where defendant told a potential witness that he planned to kill another potential witness, and the district court determined that this statement was intended to ensure the listener’s silence). Combined, Olsen’s actions clearly provide a solid foundation on which such an enhancement may rest. Neither do Olsen’s other arguments indicate that the district court erred.

While Olsen contends that identifying a cooperating witness’s phone number from confidential records does not constitute a “substantial step” toward obstruction, see United States v. Shoulberg, 895 F.2d 882, 885 (2d Cir.1990), he ignores the evidence that indicates that he further ordered a cocon-spirator to intimidate the cooperating witness.

Similarly, although Olsen claims that the fact that he instructed his ex-girlfriend to cooperate with authorities rebuts any inference that he intended to intimidate other witnesses, the district court was not compelled to believe, despite the evidence to the contrary, that Olsen adopted the same approach toward all cooperating witnesses, including the one with whom he had an intimate relationship. Thus, Olsen has not shown that the district court clearly erred when it found that he had attempted to unlawfully influence a witness, and we uphold the application of the two-level obstruction of justice enhancement.

We have considered Olsen’s remaining arguments and find them to be without merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.