United States v. York ( 1999 )

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 98-1941
UNITED STATES,
Appellee,
v.
LEONARD YORK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Stahl, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Dorothy F. Silver on brief for appellant.
Paul M. Gagnon, United States Attorney, and Jean B. Weld, Assistant U.S. Attorney, on Motion for Summary Disposition.
February 5, 1999
Per Curiam. Upon careful review of the record, appellant's
brief, the government's motions, and appellant's oppositions
thereto, we conclude that this appeal clearly presents no
substantial question and that oral argument would not assist us.
The district court properly enhanced appellant's sentence
under U.S.S.G. 3C1.1 for his obstructive conduct in soliciting an
assault on a key witness. "Culpability under the Guideline is also
applicable where a defendant causes, or attempts to cause, the
obstruction of justice by a third party." United States v.
Voccola, 99 F.3d 37, 45 (1st Cir. 1996). In this case, the
evidence of appellant's criminal intent amply supported the
enhancement, even though his plot was not destined for success and
was not implemented. See United States v. Lagasse, 87 F.3d 18, 24
(1st Cir. 1996), citing United States v. Cotts, 14 F.3d 300, 307
(7th Cir. 1994).
The district court properly denied a credit under U.S.S.G.
3E1.1 for acceptance of responsibility, there being no
"extraordinary" circumstances to counteract the rejection of
responsibility demonstrated by appellant's obstructive conduct.
See Lagasse, 87 F.3d at 25. The district court did not commit
plain error when it did not explore sua sponte such non-existent
circumstances.
Appellant's argument that the government breached its plea
agreement is raised for the first time on appeal, and our review of
the relevant facts and law disclosed no plain error and no grounds
for resentencing.
The government's motions for summary disposition and to
dispense with oral argument are granted.
The judgment is affirmed. See 1st Cir. Loc. R. 27.1.