U.S. v. Surasky ( 1992 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 91-8553
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID GREGORY SURASKY,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
______________________________________________
(October 19, 1992)
Before BROWN, GARWOOD, and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
David Gregory Surasky (Surasky) pleaded guilty to charges of
attempting to escape from custody and conspiring to do so. He now
appeals his thirty-month sentence on the ground that the district
court erred in applying the United States Sentencing Guidelines
(U.S.S.G. or Guidelines). Specifically, Surasky objects to the
district court's decision, on the one hand, to enhance his base
offense level for obstruction of justice and, on the other hand,
not to reduce it for acceptance of responsibility. We vacate and
remand.
Facts and Proceedings Below
Surasky, along with two other inmates, made an aborted effort
to escape from the Hays County Jail in San Marcos, Texas, where he
was being held in custody pending resolution of charges extraneous
to this appeal. Using a metal tool which had been fashioned from
an orthopedic brace and three hacksaw blades which had been
smuggled into the jail, the would-be escapees had managed to remove
two panes of plexiglass from a security window in the rear door of
their cell block. The men had also manufactured a crude ladder
using several hundred yards of dental floss, cardboard cylinders
from salt and pepper shakers, and strips of cloth torn from a
mattress cover. The plot was uncovered after jail officials
received an anonymous tip that an escape attempt was being planned
in the cell block in which Surasky was being held.
When the damaged window was discovered in the early morning
hours of April 29, 1991, jail officials questioned each inmate in
the cell individually. Suspicion fell on Surasky because he and
one of his co-conspirators in the escape attempt, Arthur Harris
Stier, occupied the two bunks nearest to the damaged window.
However, when questioned, Surasky stated that he had nothing to do
with the escape attempt. Nevertheless, blisters and cuts were
found on Surasky's hands and other inmates told jail officials that
they had witnessed Surasky's attempts to remove the window. Thus,
on June 18, 1991, Surasky pleaded guilty to attempting to escape
from custody in violation of 18 U.S.C. §§ 751 and 752, and
conspiring to do so in violation of 18 U.S.C. § 371. When
interviewed that same day by the probation officer preparing his
2
Presentence Report (PSR), Surasky admitted his guilt and expressed
remorse at his behavior.
In the PSR, the probation officer assigned Surasky a base
offense level of thirteen under U.S.S.G. § 2P1.1(a)(1) and
recommended that Surasky receive a two level decrease for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The PSR
did not recommend an upward adjustment for obstruction of justice
under U.S.S.G. § 3C1.1. After objections by the United States,
however, the PSR's acceptance of responsibility recommendation was
retracted in an addendum. The amended PSR still contained no
obstruction of justice recommendation. At the sentencing hearing,
the district court sustained the government's objection and denied
Surasky an adjustment for acceptance of responsibility. The court
also enhanced Surasky's base offense level by two levels for
obstruction of justice on the ground that Surasky had lied about
his involvement in the escape attempt when first questioned by jail
officials.
So enhanced, Surasky's total offense level was fifteen which,
when combined with a criminal history category of IV, produced a
sentencing range of thirty to thirty-seven months. The district
court sentenced Surasky to a term of thirty months imprisonment
followed by three years of supervised release, a fine of $5,000,
and a special assessment of $100. Surasky objected to the district
court's sentencing decisions and now brings this timely appeal.
3
Discussion
We first consider whether the district court properly enhanced
Surasky's base offense level for obstruction of justice. The
district court's decision must be upheld unless it is contrary to
law or clearly erroneous. See, e.g., United States v. Edwards, 911
F.2d 1031, 1033 (5th Cir. 1990); 18 U.S.C. § 3742(e). The
Guidelines provide that a defendant's offense level is to be
enhanced if he "willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the
investigation, prosecution, or sentencing of the instant offense."
U.S.S.G. § 3C1.1. During his initial interview with jail
officials, Surasky stated that he had nothing to do with the escape
attempt. The government argues that this was a false statement,
punishable as obstruction of justice. We disagree.
The proper scope of the Guideline's obstruction of justice
provision is discussed in the Commentary to section 3C1.1:
"This provision is not intended to punish a defendant for
the exercise of a constitutional right. A defendant's
denial of guilt (other than a denial of guilt under oath
that constitutes perjury), . . . is not a basis for
application of this provision. In applying this
provision in respect to alleged false testimony or
statements by the defendant, such testimony or statements
should be evaluated in a light most favorable to the
defendant." U.S.S.G § 3C1.1 application note 1.
The record does not reveal the exact language that Surasky
used to exculpate his complicity in the escape attempt. The PSR
states that when Surasky was first questioned "he stated that he
had nothing to do with the escape attempt." PSR ¶ 14, at 5. The
government, in a letter objecting to the PSR signed by the
Assistant United States Attorney, asserts, without any indication
4
as to the source or precision of the information, that Surasky
"stated when questioned that he knew nothing about the escape
attempt, nor had he seen or heard anything." This same letter,
however, continues by characterizing what Surasky then said as "a
1
materially false statement denying his role in the offense." The
district court made no findings as to just what Surasky said. In
its brief in this Court, the government argues that "Surasky's
denial of guilt was an attempt to obstruct justice."
Given this state of the record, Surasky's statement, when
viewed, as it must be, in the light most favorable to him, is
fairly described as a mere "denial of guilt" within the meaning of
U.S.S.G. § 3C1.1. Accordingly, Surasky's statement cannot provide
the basis for an obstruction of justice enhancement.2 See United
States v. Fiala, 929 F.2d 285, 289-90 (7th Cir. 1991) (reversing an
obstruction of justice enhancement imposed upon a motorist who,
when asked by a state trooper if he had anything illegal the car,
replied that he did not, even though there was marijuana in the
vehicle); see also United States v. Contreras, 937 F.2d 1191, 1194
(7th Cir. 1991) (noting that "a simple denial of guiltSQas in
pleading not guilty, or saying to an arresting officer, 'I didn't
1
The government's letter does not expressly take issue with
the PSR's description of what Surasky then said; nor does the PSR
addendum make any further findings in this respect.
2
We note that not every attempt at self-exoneration by a
defendant is privileged from enhancement by U.S.S.G. § 3C1.1.
For example, if someone in Surasky's shoes were to say "John
Smith did it, not me," when in fact John Smith was not involved,
such a statement, we think, would be more than a simple denial of
guilt and could be treated as obstruction of justice, assuming
that the statement proved to be a significant obstruction or
impediment to the investigation. See infra.
5
do anything'SQcannot be the basis for an obstruction enhancement
under § 3C1.1.").3
Even were we to determine that Surasky's statement was
properly found to constitute more than a mere denial of guilt, we
would still conclude that an obstruction of justice enhancement was
improper. The application notes to U.S.S.G. § 3C1.1 provide a non-
exhaustive list of examples of conduct warranting an enhancement
for obstruction of justice. The example most directly on point is
that of "providing a materially false statement to a law
enforcement officer that significantly obstructed or impeded the
official investigation or prosecution of the instant offense."
U.S.S.G. § 3C1.1 application note 3(g).4 However, the Guidelines
3
The denial of guilt exception to U.S.S.G. 3C1.1 finds a
rough analog in the so-called "exculpatory no" doctrine
established in Paternostro v. United States, 311 F.2d 298 (5th
Cir. 1962). In Paternostro, we stated that an individual does
not violate 18 U.S.C. § 1001 (which prohibits the making of false
statements to government agencies) by providing "mere negative
responses" to inculpatory questions put to him by government
investigators. Id. at 305. Rather, we held that one must
"aggressively and deliberately initiate [a] positive or
affirmative statement calculated to pervert the legitimate
functions of Government." Id. For example, in United States v.
Hajecate, 683 F.2d 894, 899-900 (5th Cir. 1982), cert. denied,
103 S.Ct. 2086 (1983), we held that taxpayers who concealed an
off-shore bank account by answering "no" on their income tax
returns to a question about foreign assets were not guilty of
making a false statement. We have said that the "exculpatory no"
doctrine derives "at least in part from latent distaste for an
application of the statute that is uncomfortably close to the
Fifth Amendment." United States v. Lambert, 501 F.2d 943, 946
n.4 (5th Cir. 1974) (en banc). A similar conviction apparently
feeds the provision of application note 1 under section 3C1.1
that a defendant does not obstruct justice under the Guidelines
merely by responding to an accusation of criminal conduct on his
part in the negative. See United States v. Urbanek, 930 F.2d
1512, 1515 (10th Cir. 1991) (analogizing U.S.S.G. § 3C1.1's
denial of guilt exception to an exculpatory no).
4
A "materially" false statement is further defined as one
6
also provide as an example of what does not constitute obstruction
of justice the following: "making false statements, not under oath,
to law enforcement officers, unless Application Note 3(g) above
applies." U.S.S.G. § 3C1.1 application note 4(b). It should be
obvious that, when juxtaposed, the important5 difference between
these two provisions is the language in note 3(g) referring to a
"significant[] obstruct[ion] or imped[iment]." Thus, by applying
the rule of U.S.S.G. § 3C1.1, and its application notes 3(g) and
4(b), we hold that a false statement made by a defendant to law
enforcement officers cannot constitute obstruction of justice
unless the statement obstructs or impedes the investigation at
issue significantly.
This holding is consistent with our precedents. In United
States v. Rodriguez, 942 F.2d 899 (5th Cir. 1991) (per curiam),
cert. denied, 112 S.Ct. 990 (1992), we upheld the application of an
obstruction of justice enhancement to a defendant who provided the
court with a fraudulent birth certificate. In so doing, we relied
upon section 3C1.1's application note 3(c), which advises that a
defendant obstructs justice by "producing or attempting to produce
that "if believed, would tend to influence or affect the issue
under determination." U.S.S.G. § 3C1.1 application note 5.
Surasky's denial of guilt was plainly "material" in this sense.
5
Of course, the "materiality" requirement of application note
3(g), see supra note 5, is also a difference, though one that we
think will be relevant in few cases. It is hard to imagine that
an immaterial statementSQi.e., one that, in the language of the
Guidelines, would not "tend to influence or affect the issue
under determination,"SQcould more than rarely, if ever, be
thought to obstruct justice. Conversely, any statement that
significantly obstructs or impedes an investigation is likely to
always, or almost always, be material.
7
a false, altered, or counterfeit document or record during an
official investigation or judicial proceeding." However, prior to
reaching this conclusion, the Rodriguez Court decided that it was
unable to uphold the obstruction enhancement on the ground that the
defendant had used an alias. As we said, "The fact that [the
defendant used an alias] at his arrest and during the police
investigation does not support the adjustment because the alias did
not significantly hinder the investigation." Id. at 902 (emphasis
added). We based our conclusion on application note 4(a), which
states that it is not obstruction of justice for a defendant to
"provid[e] a false name or identification document at arrest,
except where such conduct actually resulted in a significant
hindrance to the investigation or prosecution of the instant
offense." (emphasis added).
We followed Rodriguez in United States v. McDonald, 964 F.2d
390 (5th Cir. 1992) (per curiam), where we again concluded that a
defendant's use of an alias when he was arrested by police officers
did not warrant an obstruction enhancement. As we said in that
case, "If McDonald had used his alias only at the time of arrest,
enhancement for obstruction of justice might not have been
warranted, absent a showing of significant hindrance." Id. at 392(emphasis added). To uphold the defendant's obstruction
enhancement in McDonald, we relied upon the fact that the defendant
had used an alias while under oath before a magistrate and in
filing an affidavit. We observed that, unlike application note
4(a), application note 3(f), which provides that it is obstruction
of justice to provide false information to a judge or magistrate,
8
does not have a significant hindrance requirement. See id. at 392-
93.
Even though the "significant hindrance" requirement of
Rodriguez and McDonald was derived from application note 4(a) in
the context of the use of aliases, we believe that application note
3(g) imposes a roughly similar requirement of significant
obstruction or impediment upon cases, such as this one, in which a
defendant makes a false statement to law enforcement officials.
This should come as no surprise since the use of an alias, after
all, is a type of false statement.
The government relies on United States v. Rogers, 917 F.2d
165, 168-69 (5th Cir. 1990), cert. denied, 111 S.Ct. 1318 (1991),
which held that U.S.S.G. § 3C1.1 applies to attempted obstructions
of justice as well as actual obstructions. Rogers, however, was
decided before the Sentencing Commission clarified the intended
scope of section 3C1.1 with amendments which became effective on
November 1, 1990. These amendments included application note 4(a)
with its significant hindrance language, as well as application
note 3(g) with its significant obstruction or impediment language.
See UNITED STATES SENTENCING COMMISSION, GUIDELINES MANUAL, appendix C, §
347, at 163-66 (Nov.1991). In light of these amendments, the
Rodriguez Court determined that Rogers was no longer controlling.
See Rodriguez, 942 F.2d at 901-02.
In this case, the district court accepted, and it is conceded
by one and all, that Surasky's denial of guilt did not
significantly obstruct or impede the investigation of the escape
attempt. Surasky's co-conspirator Stier confessed almost
9
immediately upon the discovery by jail officials of the damaged
window (although Stier's initial mea culpa did not implicate
Surasky). Moreover, jail officials discovered incriminating
blisters on Surasky's hands. Finally, some of Surasky's fellow
inmates told jail officials that they had witnessed Surasky's
escape preparations.
Accordingly, the obstruction of justice enhancement based on
Surasky's initial denial of guilt to the investigating jail
officials was improper.
The government urges that, even if Surasky did not obstruct
justice, the error was harmless because the district court would
have imposed the same sentence without the enhancement, thus making
remand unnecessary. In Williams v. United States, 112 S.Ct. 1112(1992), the Supreme Court stated that, when an appellate court
finds that the Guidelines have been incorrectly applied, "a remand
is appropriate unless the reviewing court concludes, on the record
as a whole, that the error was harmless, i.e., that the error did
not affect the district court's selection of the sentence imposed."
Id. at 1120-21. We have exercised this option in the past. See,
e.g., United States v. Johnson, 961 F.2d 1188, 1189 (5th Cir.
1992). It is true that the district court could have imposed the
same sentence without the obstruction of justice enhancement. With
the enhancement, Surasky's offense level was fifteen which, when
combined with a criminal history category of IV, produced a
sentencing range of thirty to thirty-seven months. Without the
enhancement, Surasky's offense level becomes thirteen, thus
yielding a permissible sentencing range of twenty-four to thirty
10
months. Moreover, one can find in the record some arguable support
for the government's suggestion that it was the district court's
intent to give all three defendants the same sentence. When
sentencing Surasky, the district court asked to be reminded what
sentence it gave Stier. It is also true all three men received
thirty month sentences. Nevertheless, we are not sufficiently
convinced in this case that the obstruction of justice enhancement
was harmless error. From the record before us, it is not
unreasonable to conclude that, upon remand, the district court
might well choose to give Surasky a lesser sentence.
In part, we base our decision upon the fact that under the
Guidelines it is unusual for a defendant whose sentence has been
enhanced for obstruction of justice to receive a reduction for
acceptance of responsibility. The current version of the
Guidelines advises that a defendant who receives an obstruction of
justice enhancement is entitled to an acceptance of responsibility
adjustment only in "extraordinary cases." U.S.S.G. § 3E1.1
application note 4.6 Thus, the errant decision to enhance
Surasky's offense level for obstruction of justice well might have
prevented the district court from seriously considering whether to
give Surasky an acceptance of responsibility adjustment. We note
that there is evidence in the record that could logically persuade
a sentencing judge to award Surasky such an adjustment.7 Indeed,
6
Previous versions of the Guidelines had described the two
adjustments as mutually exclusive.
7
Despite his initial denial of guilt, Surasky later confessed
his crime and expressed regret at what he had done. PSR ¶ 16, at
5-6. Of course, a guilty plea does not entitle a defendant to an
11
the initial recommendation of the PSR was that Surasky receive such
an adjustment.
Furthermore, the record before us does not clearly support the
government's contention that the sentencing judge wanted to ensure
that Surasky receive the same sentence as his co-conspirators. To
be sure, the district court did inquire about the sentence it had
given Surasky and all three defendants did receive the same
sentence. But at no point during Surasky's sentencing hearing did
the sentencing judge actually say that he wanted Surasky's and
Stier's sentences to be the same. Moreover, in sentencing Surasky
to thirty months imprisonment, the district court gave him the most
lenient sentence in the permissible range. Without the obstruction
of justice enhancement, a thirty month sentence becomes the most
severe sentence in the permissible guideline range.
Conclusion
We hold that the district court erred by enhancing Surasky's
offense level for obstruction of justice, and we accordingly vacate
Surasky's sentence and remand for resentencing, including
consideration of whether Surasky should receive an acceptance of
responsibility adjustment.8
acceptance of responsibility adjustment as a matter of right.
U.S.S.G § 3E1.1(c). Instead, for a defendant to merit such an
adjustment the sentencing judge must be convinced of the
sincerity of the defendant's remorse. See, e.g., United States
v. Sanchez, 893 F.2d 679, 681 (5th Cir. 1990).
8
We emphasize that we express no opinion about whether
Surasky is entitled to such an adjustment. Nor do we reach
Surasky's claim raised in this appeal that the district court
erred in failing to give him an acceptance of responsibility
adjustment in the first instance. We merely hold that upon
remand the district court should consider the matter de novo.
12
SENTENCE VACATED and CAUSE REMANDED
13