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USCA1 Opinion
September 7, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2407
UNITED STATES,
Appellee,
v.
TEODORO SAMUEL MELO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Ernest Barone on brief for appellant.
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Edwin J. Gale, United States Attorney, and Zechariah Chafee,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Teodoro Samuel Melo pled guilty to
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distributing and possessing with intent to distribute
cocaine. He is now challenging the sentence imposed on him
by the district court. We affirm.
After pleading guilty, a probation officer
interviewed Melo for purposes of preparing a presentence
report. Melo's court-appointed counsel was not present at
the interview. During the interview, the probation officer
asked Melo if he had ever been arrested; Melo answered that
he had not. The probation officer discovered that Melo had
been arrested and indicted under a different name for
possessing a firearm and resisting arrest in New York, and
that subsequently a bench warrant for his arrest had been
issued (we assume because he failed to appear after his
release). The probation officer also discovered that Melo
had given false names for his siblings at the interview. At
a follow-up interview attended by Melo's counsel, Melo
admitted that he had intentionally lied about his prior
arrest because he was "scared of the Feds," and that he had
lied about the names of his siblings to prevent the probation
officer from contacting them and learning of his prior
arrest.
The presentence report recommended that the court
increase Melo's base offense level under sentence guideline
3C1.1 for obstruction of justice. See United States
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Sentencing Commission, Guidelines Manual 3C1.1, comment.
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(n.3(h)) (Nov. 1992) (providing for an enhancement if the
defendant gives "materially false information to a probation
officer in respect to a presentence or other investigation
for the court"). It also noted that the court could consider
an upward departure from the sentencing guideline range since
Melo had committed the drug offense while on pretrial release
for the New York offense. See id. 4A1.3 (suggesting that
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departure from the otherwise applicable criminal history
category might be appropriate if the defendant had "committed
the instant offense while on bail or pretrial release for
another serious offense"). Melo's counsel objected to an
obstruction of justice enhancement, arguing that the
misinformation was "harmless" since the probation officer had
discovered the lie during an allegedly routine criminal
records search, that the prior arrest was not "material" as
defined in the Sentencing Guidelines, and that counsel had
not been present to advise Melo at his first interview and
Melo had not been told that he could remain silent.
At sentencing, counsel for Melo again argued
against the obstruction of justice enhancement (and for an
acceptance of responsibility reduction), but did not reassert
his constitutional challenge to Melo's uncounselled
presentence interview. The court enhanced Melo's base
offense level for obstruction of justice, and reduced it for
his acceptance of responsibility, arriving at a base offense
level of 22; he then increased Melo's criminal history
category by one level because he had committed the drug
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offense while "under bail with an arrest warrant
outstanding," thereby arriving at a criminal history category
of II. Using the applicable guidelines range in the
sentencing table, the court imposed the maximum sentence of
57 months in prison.
Melo asserts three grounds for vacating his
sentence. First, he claims that he had a Sixth Amendment
right to counsel at the first presentence interview and
should have been advised of his Fifth Amendment rights before
the interview, arguing that he would not have lied to the
probation officer had counsel been present. Second, he
challenges the increase in his criminal history category,
saying that the original criminal history category did not
"significantly underrepresent" the seriousness of his
criminal history since the firearms offense was not serious.
Third, he denies that his lie concerning his prior arrest was
material. We consider each claim in turn.
1. The Presentence Interview
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Melo's first challenge fails for a very simple
reason. Melo's counsel did not present his Fifth and Sixth
Amendment challenge to the presentence interview to the
district court at sentencing, and thus did not preserve this
issue for appeal. See United States v. Ocasio-Rivera, 991
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F.2d 1, 2-3 & n.3 (1st Cir. 1993) (declining to consider an
allegation that conducting a presentence interview without
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counsel violated the Sixth Amendment where the appellant
failed to make that claim at sentencing, and determining that
the narrow exception for considering issues not presented
below where circumstances were unusually compelling did not
apply).
2. Increase in Criminal History Category
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We also find Melo's second argument unpersuasive.
We have previously sustained a decision to increase a
defendant's criminal history category by one level to account
for the defendant's commission of an offense at a time when a
bench warrant for his arrest was outstanding for failure to
appear on a separate charge. See United States v. Garcia,
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978 F.2d 746, 749 (1st Cir. 1992). Melo's arguments to the
contrary provide no basis for departing from our previous
holding.
Melo says first that increasing his criminal
history category was unreasonable because he would likely
have received a sentence of one year or less which, counsel
says, would have resulted in the addition of only one
criminal history point, leaving him in category I. Our
reading of the sentencing guidelines suggests that Melo's
factual premise is wrong. See Guidelines Manual 4A1.1(b)
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("Add 2 points for each prior sentence of imprisonment of at
least sixty days" which was not already counted under a
different subsection adding points for sentences of greater
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than one year and one month); id. Sentencing Table (equating
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2 or 3 criminal history points with criminal history category
II). Moreover, we rejected the very same argument in United
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States v. Madrid, 946 F.2d 142, 143 (1st Cir. 1991), and we
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therefore do so now.
Melo also argues that increasing his criminal
history category was unreasonable because the New York
offense was not serious. Whatever the actual facts behind
Melo's possession of the gun, there is no question that he
was indicted for a felony and that by definition a felony is
a serious crime. In any event, it was not the nature of the
firearms offense that persuaded the district court to
increase Melo's criminal history category, but the fact that
Melo committed the instant offense while on pretrial release
after a bench warrant for his arrest had issued, presumably
because he had absconded. Accordingly, this argument fails,
too. Cf. United States v. Hernandez, 896 F.2d 642, 644-45
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(1st Cir. 1990) (rejecting defendant's attempt to show
prejudice because he was prevented from arguing at sentencing
that he was innocent of the prior pending charge since it was
the very existence of a serious pending charge at a time when
the defendant committed the offense of conviction, and not
his likely guilt or innocence on the prior charge, which led
the court to increase his criminal history category).
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Finally, Melo suggests that the court erred by not
finding specifically that its departure was warranted because
criminal history category I "significantly underrepresented"
the seriousness of his criminal history. The sentencing
transcript shows that the sentencing proceeding tracked the
issues raised in the presentence report and that the report
and the probation officer's recommendations were referred to
throughout. In the report, the probation officer quoted
sentencing guideline 4A1.3, including its language that a
departure under that guideline was "warranted when the
criminal history category significantly under-represents the
seriousness of the defendant's criminal history or the
likelihood that the defendant will commit further crimes."
The probation officer explained that the guideline indicated
that a departure might be warranted for a defendant like Melo
who commits an offense while on bail or pretrial release for
another serious offense, concluding that the court could
consider a departure upward. Melo's commission of the drug
crime while on bail for the New York offense was the reason
the district court gave for raising Melo's criminal history
category by one level. Consequently, we think that any
required finding under guideline 4A1.3 as to significant
underrepresentation or likelihood of further criminal
activity was implied in the court's stated reason for
departing upward, and so we see no error in its sentencing
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decision. See United States v. Calderon, 935 F.2d 9, 12 (1st
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Cir. 1991) (sustaining the sentencing court's implicit
determination that appellant's criminal history category
would be significantly underrepresented absent a one-level
increase in criminal history category).
3. Enhancement for Obstruction of Justice
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Finally, Melo argues that his false statements to
the probation officer were not "materially false" and so did
not warrant an obstruction of justice enhancement. We
recently sustained an obstruction of justice enhancement
under practically identical circumstances, and so we sustain
the enhancement here. See United States v. Pineda, 981 F.2d
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569, 575 (1st Cir. 1992) (holding that a defendant, who had
been arrested under a different name on a firearms charge in
New York, and who had an outstanding bench warrant for his
arrest for failure to appear on that charge, had made a
materially false statement under section 3C1.1 when he told
the probation officer preparing a presentence report on the
offense of conviction that he had never before been
arrested).
The sentence of the district court is affirmed.
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Document Info
Docket Number： 92-2407
Filed Date： 9/7/1993
Precedential Status： Precedential
Modified Date： 9/21/2015