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USCA1 Opinion
September 9, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1158
UNITED STATES,
Appellee,
v.
JOHN P. KENNEDY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Torruella and Stahl, Circuit Judges,
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and Hornby,* District Judge.
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Marie T. Roebuck, by Appointment of the Court, for appellant.
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Ira Belkin, Assistant United States Attorney, with whom Lincoln
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C. Almond, United States Attorney, Margaret E. Curran, Assistant
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United States Attorney, and Anthony C. DiGioia, Assistant United
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States Attorney, were on brief for appellee.
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* Of the District of Maine, sitting by designation.
HORNBY, District Judge. This case raises Guideline
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sentencing issues, only one of which deserves extended comment.
We hold that a defendant's perjury at his sentencing, even though
limited to a count where he maintains his innocence, justifies an
obstruction of justice enhancement under U.S.S.G. 3C1.1 and a
denial of acceptance of responsibility under U.S.S.G. 3E1.1.
The defendant entered a plea of Not Guilty to Count VI
of the Indictment, which charged him with impersonating an IRS
employee. A plea agreement provided that this count would be
dismissed at sentencing on the other counts, to which he did
plead Guilty. The prosecutor stated on the record at the Rule 11
hearing, however, that the Government would seek a two-level
enhancement for the conduct underlying the impersonation count
because that was conduct relevant to the admitted offenses.
If the defendant subsequently had simply declined to
say anything about the alleged impersonation, his silence would
not have denied him a two-level adjustment for acceptance of
responsibility under U.S.S.G. 3E1.1. This Circuit holds it
inappropriate to deny the reduction for refusing to admit conduct
involved in a charge to which a defendant has pleaded Not Guilty.
United States v. Perez-Franco, 873 F.2d 455, 463-64 (1st Cir.
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1989). Accord United States v. Rogers, 921 F.2d 975, 982 (10th
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Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 113, 112 L. Ed. 2d
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83 (1990); United States v. Piper, 918 F.2d 839, 840-41 (9th Cir.
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1990); United States v. Oliveras, 905 F.2d 623, 628-32 (2nd Cir.
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1990). But see United States v. Mourning, 914 F.2d 699, 705-07
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(5th Cir. 1990); United States v. Ignacio Munio, 909 F.2d 436,
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439 n.11 (11th Cir. 1990), cert. denied, ___ U.S. ___, 111 S. Ct.
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1393, 113 L. Ed. 2d 449 (1991); United States v. Gordon, 895 F.2d
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932, 936-37 (4th Cir.), cert. denied, ___ U.S. ___, 111 S. Ct.
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131, 112 L. Ed. 2d 98 (1990). But this defendant elected to take
the stand at his sentencing hearing. He then, under oath,
provided testimony (concerning the alleged impersonation) that
the District Court supportably found to be materially false.
Perjury at a sentencing hearing clearly justifies the two-level
enhancement for obstruction of justice under U.S.S.G. 3C1.1.
See U.S.S.G. 3C1.1, comment. (n.3(b)) (specifically listing
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perjury as one of the kinds of conduct justifying the
enhancement). As for acceptance of responsibility, his perjury
behavior took the defendant out of the "safe harbor" that this
Circuit has otherwise provided for simply maintaining a Not
Guilty plea. Moreover, Application note 4 to U.S.S.G. 3E1.1
recognizes that, although there may be "extraordinary cases,"
conduct justifying an enhancement for obstructing justice
"ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct." U.S.S.G. 3E1.1,
comment. (n.4). This is not an extraordinary case. The
sentencing judge was fully entitled to conclude that the
defendant's perjury at the sentencing hearing showed a failure to
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accept responsibility. Perjury as to relevant conduct is not at
all like maintaining a Not Guilty plea.1
We dispose of the other issues summarily. The District
Court proceeded to find that the defendant had falsely
represented himself to be an Internal Revenue Service employee.
The court accordingly applied an appropriate two-level
enhancement to the Base Offense Level because there was a clear
nexus between this conduct and the fraud offenses to which the
defendant pleaded Guilty. See U.S.S.G. 2F1.1(b)(3). The
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District Court's factual determination, reached after an
evidentiary hearing, was not clearly erroneous, United States v.
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Connell, 960 F.2d 191, 193 (1st Cir. 1992). The District Court
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was entitled to rely upon hearsay testimony,2 see United States
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v. Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990), cert. denied,
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1 We do not rely upon it, but observe that a proposed
revision to Guideline 3E1.1 commentary would make this explicit:
A defendant may remain silent in respect to
relevant conduct beyond the offense of
conviction without affecting his ability to
obtain a reduction under this subsection.
However, a defendant who falsely denies, or
frivolously contests, relevant conduct that
the Court determines to be true has acted in
a manner inconsistent with acceptance of
responsibility.
Proposed Amendment to Sentencing Guidelines of the United States
Courts, 57 Fed. Reg. 20,148, 20,156 (1992) (proposed May 11,
1992).
2 Here, the defendant did not raise any confrontation issue
at the hearing.
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___ U.S. ___, 111 S. Ct. 2039, 114 L. Ed. 2d 123 (1991), as well
as its disbelief of the defendant's testimony.
Contrary to the defendant's argument, the Guidelines
provide that this enhancement under U.S.S.G. 2F1.1(b)(3) for
impersonation can be added to that under U.S.S.G. 2F1.1(b)(2)
for more than minimal planning. Only the adjustments in U.S.S.G.
2F1.1(b)(3) itself are mutually exclusive.3 Accord United
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States v. Villarino, 930 F.2d 1527, 1529 (11th Cir. 1991).
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Applying both enhancements does not result in double counting
because the enhancement for more than minimal planning is based
on a different factual premise than that for impersonation.
Moreover, nothing in the Guideline caps these enhancements at an
offense level of ten. Indeed, if the impersonation enhancement
applies, ten is the minimum offense level. U.S.S.G.
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2F1.1(b)(3).
Finally, because the difference between the minimum and
maximum terms in the Guideline range here was only six months,
the District Court was not required to state its reasons for the
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3 Prior to November 1, 1989, the enhancement in U.S.S.G.
2F1.1(b)(3) had been included in U.S.S.G. 2F1.1(b)(2). Under
that earlier version of the Guidelines, the enhancements for
impersonation and more than minimal planning were mutually
exclusive. Effective November 1, 1989, however, the Guidelines
were amended by splitting the enhancements contained in the old
version of U.S.S.G. 2F1.1(b)(2) into two separate categories.
The impersonation enhancement (along with an enhancement for
violation of judicial orders) became U.S.S.G. 2F1.1(b)(3).
Only the adjustments within U.S.S.G. 2F1.1(b)(3) are described
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as mutually exclusive. See U.S.S.G. 2F1.1, comment. (n.1).
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Nothing prevents application of one enhancement from each of
U.S.S.G. 2F1.1(b)(3) and 2F1.1(b)(2).
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specific point within the Guideline range at which it sentenced
the defendant. See 18 U.S.C. 3553(c).
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The judgment of the district court is AFFIRMED.
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Document Info
Docket Number： 92-1158
Filed Date： 9/9/1992
Precedential Status： Precedential
Modified Date： 9/21/2015