United States v. Kay: Defining “Likely to Thwart” Under U.S.S.G. § 3C1.1 Note 1

Introduction

The Tenth Circuit’s published decision in United States v. Kay, No. 24-4018 (10th Cir. July 21, 2025), squarely addresses the scope of the obstruction-of-justice enhancement in the United States Sentencing Guidelines (“U.S.S.G.”) § 3C1.1 when the alleged obstructive conduct occurs before any law-enforcement investigation has begun. Defendant-appellant Michael Troy Kay—a previously convicted felon—pled guilty to possessing a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing the district court increased his offense level by two under § 3C1.1 because Kay, immediately after brandishing the firearm in a road-rage incident, hid it beneath a cover and behind a spare tire in his trunk. Kay argued that, under Application Note 1 to § 3C1.1, his conduct could not warrant the enhancement because it was not “likely to thwart” the ensuing investigation. The Tenth Circuit affirmed, holding that (1) the “likely to thwart” determination is a factual finding reviewed for clear error, and (2) hiding the firearm as Kay did was plausibly “likely” to obstruct discovery, even though the gun was ultimately found. The decision articulates a workable standard for evaluating pre-investigative obstruction across the Circuit.

Summary of the Judgment

The panel (Judges Hartz, Kelly, and Rossman; opinion by Judge Rossman) affirmed Kay’s 27-month sentence.
Under § 3C1.1 and Application Note 1, a court may consider pre-investigative conduct if that conduct was “purposefully calculated, and likely, to thwart” the investigation.
The district court found Kay’s conduct met both prongs; the Tenth Circuit found no clear error.
The court clarified that “likely” does not mean “actually successful.” Probable capacity to hinder discovery suffices.
Because Application Note 1 is binding commentary, prior cases that omitted Note 1 analysis (e.g., Mills, Anderson) cannot displace it.
The judgment reinforces a deferential appellate posture—the factual “likelihood” determination will stand if “plausible or permissible” on the record.

Analysis

A. Precedents Cited and Their Influence

United States v. Mills, 194 F.3d 1108 (10th Cir. 1999)
– Pre-2006 case suggesting awareness of an impending investigation could justify § 3C1.1. – Court explained that Mills pre-dated the 2006 amendment adding Note 1; Mills therefore yields to the commentary’s text.
Unpublished Tenth Circuit authority (United States v. Anderson, 674 F. App’x 799 (10th Cir. 2017))
– District court had relied on Anderson; the panel distinguished it, noting Anderson did not analyze Note 1 and involved a firearm tossed into an alley—still in plain view—unlike Kay’s deeper concealment.
Supreme Court & Guideline Canon: Stinson v. United States, 508 U.S. 36 (1993)
– Reinforces that guideline commentary is authoritative unless it violates statute or Constitution. Under Stinson, Application Note 1 controls.
Ninth Circuit’s United States v. Fleming (unpub. 2023) and Eighth/Fifth Circuit decisions (Montanari, Waguespack)
– Cited to show sister-circuit consistency: success not required; likelihood judged at the moment of the obstructive act.
Standard-of-Review Cases: Smith, Cook, Robertson, Nkome – furnish the two-tier review approach (de novo for law, clear error for fact) and the abuse-of-discretion umbrella.

B. The Court’s Legal Reasoning

Binding Nature of Application Note 1
The 2006 Guideline amendment resolved a former circuit split by expressly permitting pre-investigative obstruction only when it is “purposefully calculated, and likely” to thwart. Under Stinson, this commentary governs.
What “Likely to Thwart” Means
Plain-language analysis: “likely” = possessing a probability or capability, not certainty, of impeding. The court compared Guideline note 4(D), which expressly requires “material hindrance,” illustrating that the Sentencing Commission knows how to demand actual interference when it wishes.
Fact-Finding and Clear-Error Review
The panel treated “likelihood” as a factual question: Could reasonable officers have missed the concealed weapon? Evidence supporting likelihood:
- Three-level concealment (trunk, under cover, behind spare tire).
- Civilians only saw the trunk open; they could not see the concealment.
- Police searched the trunk only after Kay’s five-year-old son directed them there; thus discovery was not inevitable.
Given those facts, the district court’s determination was “plausible,” defeating clear-error challenge.
Rejection of Contrary Arguments
– Kay’s “actual success” theory would nullify the enhancement whenever police ultimately uncover the evidence—contradicting Note 1.
– Comparison with Anderson failed because that case lacked Note 1 analysis and involved less effective concealment.
– Sister-circuit cases with more elaborate obstruction do not set a floor; they merely show other factual permutations satisfying the test.

C. Potential Impact of the Judgment

Clarifies Standard Across the Tenth Circuit – District courts now have an authoritative roadmap: (1) determine purposefulness; (2) ask whether, at the time of the act, detection was probable or not. Actual discovery later is immaterial.
Influences Plea & Sentencing Strategy – Defendants will have diminished traction for arguing that eventual discovery negates obstruction; counsel must focus on concealment’s objective capacity.
Uniformity with Other Circuits – Harmonizes Tenth Circuit law with the Fifth, Eighth, Ninth, and Eleventh Circuits, shrinking forum-shopping incentives.
Guideline Consistency – Reinforces the primacy of commentary and encourages sentencing courts to parse Guideline notes carefully.
Broader Law-Enforcement Ramifications – Officers’ discovery methods (consent searches, reliance on witness tips) may become more central at sentencing because they bear on whether concealment was objectively “likely” to thwart.

Complex Concepts Simplified

U.S.S.G. § 3C1.1: A provision adding two offense-level points when a defendant willfully hinders investigation, prosecution, or sentencing of the same case.
Application Note 1: Commentary explaining the enhancement can reach conduct that predates any investigation, but only if it was both intentional and likely to obstruct.
Clear-Error Standard: An appellate court will overturn a factual finding only if it is “definitely and firmly” mistaken—i.e., implausible in light of the whole record.
Guideline Commentary Authority: Under Stinson, officially promulgated commentary interprets Guidelines and is binding unless inconsistent with law.
Distinction Between “Likely” and “Actually”: “Likely to thwart” assesses probability at the moment of the defendant’s act; “actual hindrance” would require success. Kay confirms the former is sufficient.

Conclusion

The Tenth Circuit’s decision in United States v. Kay cements an important principle: pre-investigative concealment can trigger the § 3C1.1 obstruction enhancement when it objectively could have hindered discovery, even if the investigation ultimately succeeds. By treating “likely to thwart” as a factual matter subject to deferential review, the court equips district judges with discretion yet insists on a reasoned, evidence-based appraisal. The ruling realigns earlier Tenth Circuit dicta with the 2006 commentary amendment and brings the Circuit in step with sister circuits. Ultimately, Kay underscores that justice can be obstructed in the attempt; success is not required.