Opinion
No. 98-1793.
January 15, 1999.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE; [HON. D. BROCK HORNBY, U.S. DISTRICT JUDGE].
Before Selya, Circuit Judge, Campbell, Senior Circuit Judge, and Lynch, Circuit Judge.
James R. Bushell on brief for appellant Herrara-Sarita.
Jane Elizabeth Lee on brief for appellant Garcia-Rodriguez.
Jay P. McCloskey, United States Attorney, Jonathan A. Toof and F. Mark Terison, Assistant United States Attorneys, on brief for the United States.
Appellants Pedro Herrara-Sarita (Herrara) and Rolando Garcia-Rodriguez (Garcia), both illegal immigrants from the Dominican Republic, pled guilty to cocaine-trafficking charges in Maine's federal district court. See 21 U.S.C. §§ 841(a)(1), 846. The court sentenced Herrara to 63 months in prison and Garcia to 70 months. On appeal, both men maintain that the sentencing court erred by withholding credits for acceptance of responsibility under USSG § 3E1.1. Garcia — but not Herrara — also protests the sentencing court's action in increasing his base offense level (BOL) for obstruction of justice. See USSG § 3C1.1. Finding the appellants' arguments unpersuasive, we uphold the sentences.
Obstruction of Justice
When Garcia was arrested and charged on November 5, 1997, he passed himself off as Roberto Santana-Rivera, a United States citizen living in Puerto Rico. Garcia maintained this fictitious identity for the next nine months. During this period, he consistently prevaricated (i) in his contacts with the authorities after his arrest, (ii) throughout the course of various court proceedings (including the plea colloquy), and (iii) during his initial post-plea interviews with the probation department. He finally abandoned the charade on July 6, 1998, when he was confronted by a probation officer armed with irrefutable knowledge of his true identity.
The district court ratcheted Garcia's BOL upward by two levels for obstruction of justice, see USSG § 3C1.1, concluding that his misrepresentations anent his identity were "materially false" and "critical to . . . sentencing." This determination, in concert with the court's refusal to credit Garcia for acceptance of responsibility, see infra, increased Garcia's guideline sentencing range (GSR) from 37-46 months to 63-78 months. The district court then sentenced him near the mid-point of the range. We discern no error.
Pursuant to USSG § 3C1.1, a sentencing court should increase a defendant's offense level by two "[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense." The guidelines supply a non-exhaustive list of examples to illustrate the application of this enhancement. Some of these examples provide guidance here. See, e.g., USSG § 3C1.1, comment. (n. 3(f)) (suggesting enhancement for providing "materially false information to a . . . magistrate"); USSG § 3C1.1, comment. (n. 3(h)) (suggesting enhancement for "providing materially false information to a probation officer in respect to a presentence or other investigative report").
Despite the force of these examples, Garcia argues that posing as someone else did not constitute a material misrepresentation and thus did not warrant an enhancement for obstruction of justice. Emphasizing that neither he nor the real Santana-Rivera had a prior criminal record, he insists that his nomenclatorial misrepresentation could not have affected the court's sentencing calculations. From this baseline, he reasons that the misrepresentation did not impact the issue to be determined and, therefore, was not material. This argument will not wash.
In this context, the materiality hurdle is not high. See United States v. St. Cyr, 977 F.2d 698, 705 (1st Cir. 1992). A materially false statement is defined by the guidelines as a "statement . . . that, if believed, would tend to influence or affect the issue under determination." USSG § 3C1.1, comment. (n. 5). Under this standard, a deliberate misrepresentation need only have the potential to affect a probation officer's recommendations to the court in order to be classified as material. See United States v. Restrepo, 53 F.3d 396, 397 (1st Cir. 1995). As we previously wrote:
[A] defendant has a solemn obligation to be forthcoming with a probation officer to ensure that the court receives complete, accurate information. Providing materially false information to a probation officer in respect to a presentence report is culpable and can constitute obstruction of justice even absent a showing of actual prejudice.
St. Cyr, 977 F.2d at 705.
On this basis, the sentencing court supportably could find — as, indeed, it did — that Garcia's employment of an alias and his stubborn clinging to it over a lengthy period of time constituted obstruction of justice, whether or not the conduct directly influenced the initial calculation of his BOL. Indeed, under our precedents, Garcia's misrepresentation of his true identity easily qualifies as material: even if it did not affect the initial calculation of the BOL, the falsehood had an obvious potential to influence the court's disposition. See Restrepo, 53 F.3d at 397. No more is exigible.
Moreover, had Garcia's masquerade succeeded, he would have been incorrectly sentenced as Santana-Rivera. Hence, the district court reasonably could view the use of an alias as a device to manipulate the court into handing down an inaccurate sentence.
Garcia mounts a second argument. He asseverates that, because he misstated his identity to avoid deportation as an illegal alien rather than to confound the sentencing court, he did notwillfully obstruct justice. Given the reach of section 3C1.1, this asseveration fails.
Assuming, for argument's sake, the truth of Garcia's suggestion that he lied about his identity in an effort to avoid deportation, such a motivation would not insulate his conduct. Quite the opposite: Garcia admits that he dissembled to the probation officer and the district court in an effort to be sentenced as someone else. In itself, this admission proves that Garcia willfully attempted to trick the court into handing down an inaccurate sentence, and thereby obstructed justice. Garcia charted this course purposefully; that he did so to avoid deportation is immaterial to a properly focused willfulness inquiry.
Acceptance of Responsibility
Both Herrara and Garcia claim that the district court erred by refusing to credit them for acceptance of responsibility. See USSG § 3E1.1. Since the facts surrounding these claims are strikingly similar, we will discuss them in the ensemble. We already have set the stage vis-á-vis Garcia. We add only that, after Garcia's use of a pseudonym had been revealed, the sentencing court refused to reduce his BOL for acceptance of responsibility, finding that "a person does not take acceptance of responsibility by saying 'I, as somebody else, committed the offense.'"
Herrara's situation is much the same. The authorities arrested him on November 5, 1997. He gave his name as "Miqueas Rodriguez-Gonzalez," thus impersonating a United States citizen born in Puerto Rico. Six weeks later, he pled guilty under this alias and, like Garcia, continued to play the imposter until July 6, 1998. Over these nine months, Herrara misrepresented his identity to, inter alios, the district court and the probation department. At the disposition hearing (held after Herrara's real identity had emerged), the district court increased Herrara's BOL for obstruction of justice — a determination that Herrara does not contest — and refused to discount his BOL for acceptance of responsibility.
Garcia and Herrara were sentenced together. Thus, the finding quoted supra applied to both defendants.
In arguing for an acceptance of responsibility credit, each appellant posits that no inconsistency exists between furnishing and maintaining a false identity and accepting responsibility. Their situations, they assert, comprise "extraordinary" cases in which adjustments for acceptance of responsibility should vest despite the incidence of obstruction of justice enhancements. We do not agree.
Under USSG § 3E1.1, a defendant qualifies for a two-level decrease in his offense level as long as he "clearly demonstrates acceptance of responsibility for his offense." A further discount is available if the defendant, in addition to accepting responsibility, seasonably furnishes a full account to the government concerning his own involvement in the offense, or, alternatively, notifies the government in a timeous fashion of his intent to plead. See USSG § 3E1.1(b)(1) (2). Still, the defendant bears the burden of proof, and the application notes establish an initial presumption that "[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct," USSG § 3E1.1, comment. (n. 4). Therefore, an adjustment for acceptance of responsibility rarely will be appropriate (i.e., only in an "extraordinary" case) where, as here, a defendant's BOL has been enhanced for obstruction of justice. See USSG § 3E1.1, comment. (n. 4); see also United States v. Lagasse, 87 F.3d 18, 25 (1st Cir. 1996).
Whether the appellants sufficiently accepted responsibility for their offenses to bring their cases within the narrow band of "extraordinary" cases is a fact-dominated inquiry. See Lagasse, 87 F.3d at 25. Consequently, we review the sentencing court's resolution of it deferentially. See id. (explicating clear-error standard of review); United States v. Royer, 895 F.2d 28, 29-30 (1st Cir. 1990) (same).
The appellants point out that they entered guilty pleas (thus sparing the government the expense of trial) and assisted the authorities in apprehending other drug traffickers. This is true as far as it goes — but it does not go far enough. In the circumstances of this case, the district court sufficiently explained its basis for denying the appellants any credit for acceptance of responsibility, see, e.g., United States v.Gonzales, 12 F.3d 298, 300 (1st Cir. 1993) (noting that sentencing findings need not "be precise to the point of pedantry"), and the record supports the quintessentially factual determination that the obstructive conduct here undermined any acceptance of responsibility. See Royer, 895 F.2d at 30 (explaining that "acceptance of responsibility necessitates candor and authentic remorse — not merely a pat recital of the vocabulary of contrition"). In and of itself, the dogged persistence with which the two appellants maintained their false identities for months on end bears ample witness to the soundness of this determination. See, e.g., United States v.Muriel, 111 F.3d 975, 982-83 (1st Cir. 1997) (holding that it is within the sentencing court's discretion to deny a reduction for acceptance of responsibility when "a defendant has resorted to half-truths or evasions from the truth"); United States v.Ocasio-Rivera, 991 F.2d 1, 5 (1st Cir. 1993) (similar).
The appellants' shared contention that they lied about their identities to avoid deportation rather than to avoid responsibility for their crimes is likewise insufficient to shake the district court's record-rooted determination. Dissembling to the court about one's true identity reasonably can be interpreted as evincing an unwillingness fully to accept responsibility. Absent clear error — and clear error is clearly absent here — we will not disturb the lower court's finding that neither appellant succeeded in proving acceptance of responsibility. See, e.g.,Lagasse, 87 F.3d at 25; Royer, 895 F.2d at 29-30.
We need go no further. From aught that appears, both appellants were lawfully sentenced.
Affirmed .