United States v. Bowers ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4665
SETH ABLE BOWERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-02-4)
Submitted: February 27, 2003
Decided: March 18, 2003
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert E. Barrat, Martinsburg, West Virginia, for Appellant. Thomas
E. Johnston, United States Attorney, Robert H. McWilliams, Jr.,
Assistant United States Attorney, Randolph J. Bernard, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BOWERS
OPINION
PER CURIAM:
Seth Able Bowers pled guilty to possession of a firearm by an
unlawful drug user, 18 U.S.C. § 922(g)(3) (2000), and was sentenced
to a term of fifty-four months imprisonment. Bowers contests his sen-
tence, arguing that the district court abused its discretion by penaliz-
ing him three times for the same conduct by making an adjustment
for obstruction of justice, U.S. Sentencing Guidelines Manual § 3C1.1
(2001), denying him an adjustment for acceptance of responsibility,
USSG § 3E1.1, and imposing a sentence above the low point of the
guideline range. We affirm.
Bowers was released on bond after his indictment but, shortly
before his guilty plea, he was arrested after he was stopped for speed-
ing, gave a false name, and was found to be driving with a revoked
license. A few days later, he overdosed on heroin and was hospital-
ized. In his interview with the probation officer following his guilty
plea, Bowers failed to disclose his recent arrest or overdose. He sub-
sequently failed to report to the probation officer as directed and dis-
appeared. He was located and arrested a month later and his bond was
revoked.
We first note that conduct may be considered under more than one
guideline provision unless such double counting is expressly forbid-
den by the guidelines. United States v. Crawford, 18 F.3d 1173, 1179-
80 (4th Cir. 1994). In Bowers’ case, the district court was permitted
to consider his conduct under each guideline that it applied.
We review the district court’s factual determination that a defen-
dant obstructed justice for clear error. United States v. Hudson, 272
F.3d 260, 263 (4th Cir. 2001). The adjustment applies when a defen-
dant has provided "materially false information to a probation officer
in respect to a presentence report," and when the defendant has
escaped or attempted "to escape from custody before trial or sentenc-
ing." USSG § 3C1.1, comment. (n.4(h), (e)). Lying to a probation
officer about drug use while on pre-trial release does not constitute
conduct warranting this adjustment. Id. at comment. (n.5(e)).
UNITED STATES v. BOWERS 3
Under Application Note 5, Bowers’ false assertion that he had not
used drugs and failure to disclose his heroin overdose cannot be
treated as obstruction of justice within the meaning of § 3C1.1. How-
ever, providing false information concerning prior criminal conduct
may be treated as obstruction of justice, United States v. Magana-
Guerrero, 80 F.3d 398, 400-01 (9th Cir. 1996); United States v.
Thomas, 11 F.3d 1392, 1399-1401 (7th Cir. 1993), and the district
court may infer that a defendant’s failure to disclose relevant informa-
tion is a conscious misrepresentation if circumstances so indicate.
Magana-Guerrero, 80 F.3d at 400 (defendant failed to disclose prior
use of aliases and convictions for illegal entry).
Moreover, Bowers’ failure to report to the probation officer and his
disappearance required that time and effort be expended to find and
arrest him and to revoke his bond at a hearing before the district court
judge. On these facts, we conclude that the district court did not
clearly err in finding that he had obstructed justice. See United States
v. Witherell, 186 F.3d 1343, 1345 (11th Cir. 1999) (defendant
obstructed justice by failing to comply with conditions of bond, thus
necessitating her arrest, a revocation hearing, and a detention hear-
ing).
Pursuant to the commentary in Application Note 4 to § 3E1.1, a
defendant who engages in conduct resulting in an adjustment for
obstruction of justice is not entitled to an adjustment for acceptance
of responsibility unless his is an "extraordinary case." Bowers failed
to demonstrate any extraordinary circumstances in the district court
and has not done so on appeal. Having found that Bowers obstructed
justice, the district court did not clearly err in refusing to reduce his
sentence for acceptance of responsibility. United States v. Ruhe, 191
F.3d 376, 388 (4th Cir. 1999) (setting out standard of review).
The district court’s exercise of its discretion as to where it will
impose sentence within a properly calculated guideline range is not
generally reviewable on appeal. United States v. Speed, 53 F.3d 643,
647 (4th Cir. 1995). Bowers claims that the district court departed
upward when it imposed a sentence of fifty-four months instead of
imposing sentence at the bottom of the guideline range because the
government had agreed to, and did, recommend a sentence at the bot-
tom of the range. However, under the terms of the plea agreement, the
4 UNITED STATES v. BOWERS
government’s recommendation was not binding on the court. The
court did not depart from the guideline range. Rather, it imposed a
sentence within the range in a proper exercise of its discretion.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED