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USCA1 Opinion
November 25, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1421
MAURICE ISABEL,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
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[Hon. Shane Devine, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Maurice Isabel on brief pro se.
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Jeffrey R. Howard, United States Attorney, and Peter E. Papps,
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First Assistant United States Attorney, on Motion for Summary
Disposition, for appellee.
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BOUDIN, Circuit Judge. Appellant Maurice Isabel was convicted
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on April 30, 1990 of conspiring to file false tax documents and
conspiring to launder drug trafficking proceeds, in violation of
18 U.S.C. 371, 1956(a)(1)(B)(i). On July 23, 1990, he was
sentenced to fifty-seven months' imprisonment. On appeal, his
conviction was affirmed. United States v. Isabel, 945 F.2d 1193
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(1st Cir. 1991). Isabel then filed a motion under 28 U.S.C.
2255 seeking to have his sentence vacated, set aside or
corrected. The district court denied relief, and Isabel filed
the present appeal.
On this appeal, Isabel argues that the district court erred at
sentencing by enhancing his sentence for obstruction of justice
and by failing to reduce his base offense level to reflect
acceptance of responsibility. He also says that he received
ineffective assistance of counsel at sentencing and that findings
required by Fed. R. Crim. P. 32(c)(3)(D) were not made.* We
affirm in part and remand in part.
I. THE OBSTRUCTION ENHANCEMENT
I. THE OBSTRUCTION ENHANCEMENT
Isabel's primary claim on the appeal is a challenge to an
obstruction of justice enhancement that the district court made
in originally sentencing him. The court enhanced his base
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*In his reply brief, Isabel makes several arguments that were not
presented to the district court and which we, therefore, do not
consider. See United States v. Valencia-Copete, 792 F.2d 4, 5 (1st
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Cir. 1986); Porcaro v. United States, 784 F.2d 38, 39 (1st Cir.),
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cert. denied, 479 U.S. 916 (1986). In particular, Isabel alleges in
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his reply brief that his counsel failed to represent him effectively
in his direct appeal, but his section 2255 motion alleged only that
his counsel had been ineffective at sentencing.
offense level under section 3C1.1 of the Sentencing Guidelines
because Isabel made false statements to investigators after his
arrest. The guideline in effect at the time of sentencing reads
as follows: "If the defendant willfully impeded or obstructed,
or attempted to impede or obstruct, the administration of justice
during the investigation or prosecution of the instant offense,
increase the offense level by 2 levels." U.S.S.G. 3C1.1
(1989). It was Isabel's position at sentencing, as now, that any
false or misleading statements he made at the time of his arrest
did not in fact hamper the investigation.
In his section 2255 motion, Isabel argued to the district
court that an amendment to the commentary to section 3C1.1, which
occurred after his sentencing, made clear that the court should
not have applied the enhancement in his case.** The version of
the commentary in effect when he was sentenced did not explicitly
address the question whether false or misleading statements that
fail to mislead still merit the enhancement. It did, however,
contain general language stating that the section 3C1.1
enhancement applied to "a defendant who engages in conduct
calculated to mislead or deceive authorities . . . in respect to
the instant offense." U.S.S.G. 3C1.1, intro. comment. (1989).
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**Isabel was sentenced in July, 1990, and the new commentary amendment
became effective on November 1, 1990. We reject the government's
claim, mysteriously presented under a heading relating to
"relitigat[ion] [of] an issue already decided," that Isabel waived
this argument by not raising it in his direct appeal. Since the
amendment did not become effective until after Isabel had been
sentenced and after his direct appeal had been docketed and briefed,
he could not readily have raised that issue on appeal.
3
Based on the guideline's language, the pre-sentence report
recommended an enhancement for obstruction which, after a
sentencing hearing, the district court found to be justified.
Several months after Isabel was sentenced, the commentary to
section 3C1.1 was amended. It now states that materially false
statements to law enforcement officers "that significantly
obstructed or impeded the official investigation or prosecution
of the instant offense" warrant an enhancement, but other "false
statements, not under oath," to law enforcement officers do not.
U.S.S.G. 3C1.1, application notes 3(g) and 4(b) (1992). We
have interpreted that provision to mean precisely what it says:
that an enhancement may be made for unsworn, false statements to
law enforcement officers only if the government shows that the
statements significantly obstructed or impeded the official
investigation or prosecution of the offense. See United States
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v. Manning, 955 F.2d 770, 774-75 & n.5 (1st Cir. 1992). Isabel
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argues that his statements did not obstruct the government's
investigation or prosecution, and that thus the district court
erred in enhancing the base offense level used in calculating his
sentence.
In rejecting the section 2255 motion, the district court
found that Isabel's argument had no "legal merit" because the
sentencing court was required to apply the law in effect at the
time of sentencing. The court also stated that its findings at
the time of sentencing meant that it would necessarily have
enhanced Isabel's sentence even under the amended commentary. We
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think that the district judge's original decision to enhance was
entirely understandable in light of the general language of the
1989 guideline and commentary. But we conclude for the reasons
stated below that the new and explicit commentary language
favoring Isabel, contained in the subsequent amendment, is
properly treated as a clarification rather than a substantive
change. The pertinent language, as we noted at the outset, makes
the guideline inapplicable to an unsworn lie to law enforcement
officials that does not in fact hinder an investigation. Giving
Isabel the benefit of that clarification, we do not believe that
the district court's findings to date, either at sentencing or in
the section 2255 proceeding, show that the enhancement was
warranted.
It is true that a sentencing court applies the law in effect
at the date of sentencing. Nevertheless, in interpreting an
applicable guideline virtually all circuits have found or stated
that it is appropriate to consider post-sentencing amendments
that clarify but do not substantively change the guideline.
Among numerous cases to this effect are United States v. Perdomo,
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927 F.2d 111, 116-17 (2d Cir. 1991), United States v. Howard, 923
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F.2d 1500, 1504 & n.4 (11th Cir. 1991), and United States v.
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Caballero, 936 F.2d 1292, 1299 n.8 (D.C. Cir. 1991), cert.
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denied, 112 S. Ct. 943 (1992), but many more could be cited. We
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readily follow this uniform approach and turn to the guideline
and amendment at issue in this case.
5
It is a close question whether the commentary amendment here
in issue should be treated as a "clarification" or instead as a
substantive "revision" of the guideline. These are not clear-cut
categories. Where the line is to be drawn may well reflect not
only language and intent but also implicit judgments as to the
Sentencing Commission's function and the role of guideline
commentary. In this case, the language of the guideline itself,
unqualified by any contrary commentary prior to the 1990
amendment, provides an enhancement for a defendant who "attempted
to impede or obstruct" an investigation. This language surely
permits--even encourages--one to think that a deliberate material
lie, although unsuccessful, might qualify as attempted
obstruction. Indeed, a number of circuits so held prior to the
1990 amendment. See e.g., United States v. Blackman, 904 F.2d
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1250, 1259 (8th Cir. 1990); United States v. Irabor, 894 F.2d
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554, 556 (2d. Cir. 1990).
Nevertheless, the Sentencing Commission regards its amended
commentary on the obstruction issue as a clarification, for the
Commission stated that "[t]his amendment clarifies the operation
of 3C1.1 . . . ." U.S.S.G. App. C at 166 (1992). The amended
commentary does not in any sense read the term "attempted" out of
the guideline, nor prevent all attempted but unsuccessful
obstructions from triggering an enhancement. Rather, it
modulates the guideline by excluding some actions that could
literally be described as attempts (and indeed some actions that
could literally be described as obstructions), presumably on the
6
ground that they are not significant enough to warrant
enhancement.*** We give due weight to the Commission's view
not merely as the drafter of the guideline and the amendment but
as the expert entity with on-going responsibility for clarifying
and amending the guidelines.****
One sister circuit has already held that the 1990 amendment
to the section 3C1.1 commentary, insofar as it dealt with an
attempt to obstruct, was a clarifying amendment and should be
applied to a defendant who was sentenced before the amendment.
United States v. Fiala, 929 F.2d 285, 290 (7th Cir. 1991). This
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court, without directly ruling on the present issue (a post-
amendment sentence was involved), has described that language as
"clarify[ing]" the guideline. United States v. Moreno, 947 F.2d
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7, 10 (1st Cir. 1991). Finally, although sentencing policy is a
matter primarily for Congress and the Commission, the amendment
offers a realistic and lenient solution for the defendant who
blurts out false answers at the time of arrest but does not in
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***For example, a threat to a witness qualifies for an enhancement
even if unsuccessful whereas "fleeing from arrest" does not even if
the flight is (temporarily) successful. See application notes 3(a),
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4(d). Excluded conduct, such as an unsworn unsuccessful lie or
successful flight, can still affect the choice of sentence "within the
otherwise applicable guideline range." Application note 4.
****The Sentencing Commission has authority to recommend that a
reduction in the guideline range be made retroactive (see 28 U.S.C.
994(o), (u); 18 U.S.C. 3582(c)(2)), but we do not rely on that point
here. The Sentencing Commission did not invoke that authority
(compare U.S.S.G. 1B1.10 listing specific amendments to be applied
retroactively) and, in any case, its authority extends only to
permitting, not compelling, the district court to give retroactive
effect to an admitted substantive change. 18 U.S.C. 3582(c)(2).
7
fact hinder the inquiry. Thus, we follow Fiala and hold that the
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amendment applies in this case.
In its section 2255 decision, the district court concluded
that Isabel's conduct would constitute an obstruction of justice
even under the amended commentary, but the court's explanation
seems to us to be flawed. The district court's memorandum on
this point briefly referred to the government's statement at
sentencing, citing to specific pages of the transcript. These
pages, however, show that the prosecutor at sentencing took the
view that "the success or lack of success of Mr. Isabel's lies"
should not be the test, an understandable position in light of
then existing guideline language and commentary. Nor does
anything in the evidence described in the prosecutor's statement
show an actual obstructive effect. The facts available to us,
admittedly not complete, suggest that Isabel's lies may well not
have hindered the investigation.
Under these circumstances, we think the issue of enhancement
for obstruction of justice needs to be remanded to the district
court for a new determination under the clarified guideline. If
the government can show that Isabel's statements significantly
obstructed the inquiry, the enhancement will stand; otherwise,
resentencing will be required based on a reduced offense level.
On remand, assuming the government believes that it can make the
obstruction showing that Manning requires, the procedural course
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to follow is a matter for the district court to decide in the
first instance.
8
II. ACCEPTANCE OF RESPONSIBILITY
II. ACCEPTANCE OF RESPONSIBILITY
In his second claim of error, Isabel argues that the
district court should have reduced his base offense level by two
points for acceptance of responsibility under section 3E1.1 of
the guidelines. As already noted, at his original sentencing
Isabel was found to have obstructed justice. He claims that
under guideline commentary in effect then and now, the
determination of obstruction precluded the court from granting
him any reduction for acceptance of responsibility. See U.S.S.G.
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3E1.1, application note 4 (1989) (obstruction finding precludes
acceptance finding except in "extraordinary" case); id. (1992)
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(same). Because the district court reaffirmed the obstruction
finding in deciding the present section 2255 motion, the court
had no occasion to revisit the question whether, absent the
obstruction finding, a reduction might be warranted for
acceptance of responsibility.
The government claims that Isabel waived this acceptance of
responsibility claim by not raising it on direct appeal and that,
in order to raise the issue now, he must show cause and prejudice
under the Frady standard. United States v. Frady, 456 U.S. 152,
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168 (1982). In the draft pre-sentence report, the probation
officer apparently recommended against an adjustment for
acceptance of responsibility. Isabel's counsel sought an
adjustment of the wording in the report on the acceptance issue,
but he did not challenge the denial outright. The probation
officer then revised the report language but continued to
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recommend a denial of any adjustment on the ground that Isabel
had admitted to tax evasion but denied involvement in money
laundering, thereby failing to accept full responsibility for
"his criminal conduct" under U.S.S.G. 3E1.1(a) (1989). At
sentencing, Isabel's counsel did not pursue the matter.
This sequence suggests that defense counsel had concluded
that the acceptance of responsibility claim could not succeed "on
the merits," independent of any bar presented by an obstruction
finding. As we explain below, the failure to raise the issue was
certainly not ineffective assistance of counsel. Assuming that
counsel had deliberately abandoned the claim because he thought
it hopeless on the merits, this would ordinarily constitute a
waiver, and prevent its resurrection in a section 2255
proceeding. Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987).
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What gives us pause is the district court's suggestion, in
ruling on the section 2255 motion, that Isabel's counsel may not
have pursued the acceptance issue precisely because counsel
believed--in the district court's words--that "having lost the
battle over the issue of obstruction of justice, he [counsel]
could not possibly win the war with respect to acceptance of
responsibility." If counsel did not pursue the acceptance issue
because the obstruction finding made him believe that pursuit to
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be hopeless, then we think that sufficient "cause" would exist
for not raising the issue at sentencing. Cf. United States v. Di
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Bernardo, 880 F.2d 1216, 1227 (11th Cir. 1989). There is
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arguably prejudice as well since, if he succeeded on both the
10
obstruction and enhancement issues, Isabel's sentencing range
would be reduced.
Under these circumstances, we believe that the just and
proper course is a contingent remand on the acceptance of
responsibility issue. If the district court finds that
obstruction is established even under the clarified guideline,
that will dispose of any ground for reexamining the acceptance of
responsibility issue. Should the court instead find that
obstruction is not proved, then we believe the district court
should determine whether the acceptance of responsibility claim
was waived and, if it was not, then it should determine that
claim on the merits. The probation officer may have been
entirely correct in urging, without reference to the obstruction
issue, a denial of any adjustment for acceptance of
responsibility.***** But we prefer this evaluation to be
made by a court familiar with the trial record and the defendant,
especially given the "great deference" accorded to the trial
judge in appraising acceptance of responsibility. U.S.S.G.
3E1.1, application note 5 (1989 and 1992).
III. THE INEFFECTIVE ASSISTANCE CLAIM
III. THE INEFFECTIVE ASSISTANCE CLAIM
Isabel's third argument on appeal is a challenge to the
district court's determination that he had received effective
assistance of counsel at sentencing. Such a determination by the
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*****It goes almost without saying that, if the court agrees with the
probation officer on the merits, then the waiver issue need not be
resolved.
11
fact-finder may be overturned only for clear error. McCarthy v.
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United States, 764 F.2d 28, 30 (1st Cir. 1985). The burden is on
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Isabel to show that counsel failed to render effective
assistance. See Panzardi-Alvarez v. United States, 879 F.2d 975,
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983 (1st Cir. 1989) (citing Strickland v. Washington, 466 U.S.
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668, 689 (1984)), cert. denied, 493 U.S. 1082 (1990). We have
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reviewed the record carefully, and have not found any clear error
in the district court's determination.
Counsel's arguments on the obstruction of justice issue at
sentencing were vigorous, as his defense of the entire case
appears to have been. He obtained the dismissal of three counts
of the indictment after opening statements were made, and the
jury acquitted Isabel of other counts. Counsel also filed
several motions challenging the jury's verdict. Although the
court ultimately denied those motions, it noted that "[t]he
instant cases were well tried and hard fought." Furthermore,
after hearing counsel's argument on the obstruction of justice
issue at sentencing, the court enhanced Isabel's offense level
for obstruction of justice but acknowledged that it had been a
"close question." In a post-sentence memorandum, the court said
that Isabel's counsel had argued "ably and earnestly" for a
downward departure.
In this court, Isabel points to his counsel's failure to
object at sentencing to a "possible erroneous enhancement" of
three points under section 2S1.1(b)(2) of the guidelines or argue
for a "possible reduction" of two to four points under section
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3B1.2. The evidence submitted at trial showed that Isabel knew
that the funds he laundered came from unlawful dealing in
narcotics. United States v. Isabel, 945 F.2d at 1196, 1202.
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Consequently, we do not see how counsel could reasonably have
argued that Isabel should not have received a three-point
increase under section 2S1.1(b)(1) (the subsection to which
Isabel apparently means to refer), which requires the increase
where the defendant knows the laundered funds were the proceeds
of narcotics trafficking. U.S.S.G. 2S 1.1(b)(1) (1989 and
1992).
Likewise, it would have made no sense for counsel to argue
that Isabel was a minor or minimal participant in the conspiracy
to launder drug money and file false tax returns, meriting a base
offense level reduction under section 3B1.2. Isabel was a direct
and essential party to that conspiracy. The recitation of
evidence in our prior decision amply bears out that point, 945
F.2d at 1195-96, and we need not repeat the facts. It is beside
the point that Isabel played no role in the narcotics
trafficking. The "offense" for which he was sentenced concerned
only the laundering and tax reporting scheme, and in that scheme
his "role" was that of a central player. U.S.S.G. 3B1.2 (1989
and 1992). See United States v. Richardson, 925 F.2d 112, 115
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(5th Cir.), cert. denied, 111 S. Ct. 2868 (1991).
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Finally, although counsel did not argue for an acceptance of
responsibility reduction, any such argument had little chance of
succeeding. As the district court noted, Isabel was found to
13
have obstructed justice. For that reason, a reduction for
acceptance of responsibility was highly unlikely. See U.S.S.G.
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3E1.1, application note 4 ("[c]onduct resulting in an enhancement
under 3C1.1 . . . ordinarily indicates that the defendant has
not accepted responsibility for his criminal conduct" and
adjustments under both sections should be made only in
"extraordinary cases"); United States v. Aymelek, 926 F.2d 64, 69
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(1st Cir. 1991) (the defendant who obstructs justice "will
thereby effectively forfeit a credit for acceptance of
responsibility" under the guidelines); United States v. Mata-
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Grullon, 887 F.2d 23, 24 (1st Cir. 1989) (defendant's falsehoods
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"militate against" a reduction for acceptance of responsibility).
Isabel suggests that an adjustment in his case was
nevertheless warranted under U.S.S.G. 3E1.1, application note 2
(1992). That note says that a defendant who goes to trial
instead of pleading guilty is ordinarily not accepting
responsibility but, as a supposedly "rare" exception, the note
cites the case of a defendant who goes to trial to challenge the
legal applicability of a statute to his conduct. Isabel asserts
that he did admit to his actual conduct and denied only that it
constituted money laundering under the relevant statute. If so,
this circumstance might avoid the effect of the not-guilty plea
as a bar to the reduction, but it does nothing to remove the bar
interposed by the obstruction finding. Isabel's counsel could
reasonably have concluded that so long as the obstruction finding
14
stood, the court would refuse any reduction for acceptance of
responsibility.
As the district court said, with such little likelihood of
success in challenging the computations, counsel reasonably could
have decided that it made more sense to seek a downward
departure, as he did. Isabel concedes that counsel argued
"eloquently" for the downward departure. We affirm the district
court's finding that Isabel received effective assistance of
counsel at sentencing. See Barrett v. United States, 965 F.2d
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1184, 1193 & n.18 (1st Cir. 1992) ("[W]e may not find a deficient
professional performance in the constitutional sense unless the
challenged decisions were not ``plausible options.'") (citation
omitted). Nor did the court err in failing to hold an
evidentiary hearing on this issue, for Isabel has pointed to no
material fact that has remained unresolved by the record. See
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Ouellette v. United States, 862 F.2d 371, 377-78 (1st Cir. 1988).
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IV. RULE 32(3)(D)
IV. RULE 32(3)(D)
Finally, Isabel contends that the district court violated
Fed. R. Crim. P. 32(c)(3)(D) by omitting to make findings on
unresolved controverted issues posed by the pre-sentence report.
We will assume arguendo that this issue may be considered. See
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United States v. Gattas, 862 F.2d 1432, 1433, 1434 & n.4 (10th
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Cir. 1988) (Section 2255 relief is available for Rule 32(c)(3)(D)
violations where the failure to comply with the rule was not
discovered until after the time for direct appeal and for a Rule
35 motion had expired). However, at the sentencing hearing the
15
district court did resolve the only open factual issue presented
to it, relating to the obstruction of justice issue. The court
also recorded its finding on this issue in a memorandum issued
after the sentencing hearing.
Rule 32(c)(3)(D) provides that the district court's
resolution of disputed issues at sentencing shall be appended to
the pre-sentence report made available to the Bureau. In his
reply filed in this court, responding to the government's motion
for summary affirmance, Isabel says (possibly for the first time)
that the Bureau of Prisons has advised him that this memorandum
of sentencing hearing is not in its records. The district
court's disposition of the obstruction issue on remand will
presumably supersede its earlier finding, whether the court
reaches its original conclusion or the opposite one. We assume
that in due course the district court will transmit the record of
its disposition to the Bureau of Prisons.
The district court's order denying Isabel's section 2255
motion is affirmed in part and remanded in part for further
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proceedings in accordance with this opinion.
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Document Info
Docket Number： 92-1421
Filed Date： 11/25/1992
Precedential Status： Precedential
Modified Date： 9/21/2015