Split Eighth Circuit opinion explains when plotting to kill an informant does not allow obstruction enhancement

Federal sentencing practitioners get accustomed to defendants being subject to an obstruction of justice enhancement under the federal guidelines for all sorts of seemingly tame behavior.  Given that reality, today's ruling by a split Eighth Circuit panel in US v. Galaviz, No. 11-2396 (8th Cir. Aug. 6, 2012) (available here) caught my eye because it reverses such an enhancement despite the defendant's not-so-tame behavior.   Here is the heart of the majority's ruling in Galaviz:

The district court found on a sufficient record that while in prison, after pleading guilty, Mr. Galaviz engaged in a conspiracy to murder Ubeldo Lopez-Gonzalez, who was a confidential informant in the case.  The district court also found, again on a sufficient record, that Mr. Galaviz's motive for entering the conspiracy was to retaliate against Mr. Lopez for his cooperation with the government.  But because Mr. Galaviz had already pleaded guilty, he could not have intended to obstruct justice "with respect to the instant offense" by plotting to kill Mr. Lopez unless he thought that Mr. Lopez was going to testify against him at sentencing, and that indeed was the government's theory in the first brief that it filed in this court.  The infirmity of this position is that the record will not support a finding that Mr. Galaviz had reason to think that Mr. Lopez would be a witness against him at sentencing.

Taking a different view, the dissenting opinion by Judge Smith in Galaviz gets started this way:

The majority holds that the district court erred in finding that Galaviz obstructed justice by participating in a conspiracy to kill the government's confidential informant and principal witness in the prosecutorial process used to convict Galaviz and who provided testimony at Galaviz's subsequent sentencing hearing. The court thus interprets U.S.S.G § 3C1.1 in such manner that it cannot be used to enhance a defendant's sentence for obstruction of justice for conspiring to murder the government's principal witness because Galaviz's motive was simply retaliation for the witness being a snitch and 1 not an effort to prevent the witness's availability for his pending sentencing hearing. Because I believe that the district court did not err in finding that Galaviz's attempt to kill the government's confidential informant amounted to an obstruction of justice, I respectfully dissent.