United States v. Nygren ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1548
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN NYGREN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Torruella, Selya, and Kayatta,
Circuit Judges.
Heather Clark, with whom Clark Law Office was on brief, for
appellant.
Benjamin M. Block, Assistant United States Attorney, with
whom Halsey B. Frank, United States Attorney, was on brief, for
appellee.
August 6, 2019
SELYA, Circuit Judge. This sentencing appeal poses a
question of first impression in this circuit: may feigned
incompetency comprise the basis for an obstruction-of-justice
enhancement and, thus, support an upward offense-level adjustment
under USSG §3C1.1? We answer this question in the affirmative,
reject the defendant's other assignments of error, and affirm his
sentence.
I. BACKGROUND
We start by rehearsing the relevant facts and travel of
the case. During the summer of 2014, defendant-appellant Steven
Nygren was hired as the chief financial officer of Brooklin Boat
Yard (the Boatyard), a closely held corporation located in
Brooklin, Maine. Almost immediately, he began fleecing his new
employer: in little more than a year, he forged at least 63
checks, totaling over $732,000, and deposited the proceeds into an
account that he controlled. During the same time span, he also
racked up more than $83,000 in unauthorized purchases on the
Boatyard's credit cards. Some of the money was spent on personal
expenses and the rest was invested in a store owned by the
defendant.
Discovering that the Boatyard's coffers had been
depleted, the Boatyard's owner notified authorities of his
suspicion that the defendant had been forging checks. In a
surreptitiously recorded conversation with the owner on September
- 2 -
13, 2015, the defendant admitted to stealing money. The defendant
then went on the offensive, circulating a letter at his store,
which stated that "there are at least 2 sides to every story" and
that "nothing is ever as it seems." The letter also accused the
Boatyard's management of misspending and of paying "hush up money"
to women.
Three days after the surreptitiously recorded
conversation, law enforcement officers executed both arrest and
search warrants at the defendant's home. In due course, a federal
grand jury sitting in the District of Maine charged the defendant
with 63 counts of bank fraud, see 18 U.S.C. § 1344(2), one count
of use of an unauthorized device, see id. § 1029(a)(2), and one
count of tax evasion, see 26 U.S.C. § 7201. The tax evasion count
was based upon the defendant's history of filing false or
incomplete tax returns (or sometimes, no tax return at all).
On August 25, 2016, the defendant — who had suffered a
stroke four months earlier — appeared before a magistrate judge
for initial presentment. Noting that the defendant's medical
condition and motion to obtain a competency evaluation combined to
raise a question of competency, the magistrate judge deferred the
matter for 60 days. At his postponed arraignment on October 24,
2016, the defendant pleaded not guilty to all counts and indicated
that he planned to file a motion for a competency hearing. See 18
U.S.C. § 4241(a)-(c). That motion was filed two weeks later,
- 3 -
accompanied by a letter from the defendant's treating neurologist
and a forensic competency report prepared by a retained expert.
The neurologist's letter noted that the defendant's stroke had
caused "profound deficits" affecting his cognition and memory that
could last "several months, but will slowly improve over time."
The retained expert who prepared the competency report had reviewed
the defendant's medical records, examined the defendant, and
interviewed the defendant and his wife. He concluded that — at
the time — the defendant was not legally competent to stand trial.
The government objected to the motion for a competency
hearing. It pointed out, among other things, that the defendant
had performed poorly on two tests administered by the defendant's
expert to detect malingering: the test of memory malingering
(TOMM) and the validity indicator profile (VIP), the latter being
"designed to identify valid and invalid responding." Based on his
extremely low scores on these tests, the expert's report warned
that the defendant might have been exaggerating his memory
difficulties. The district court nonetheless overruled the
government's objection and granted the defendant's motion for a
competency hearing. The court ordered, though, that the defendant
continue his rehabilitation and undergo a second competency
evaluation at a government facility.
The second competency evaluation was conducted at a
federal Bureau of Prisons (BOP) facility in February and March of
- 4 -
2017. The BOP evaluator concluded that the defendant was legally
competent to stand trial — a conclusion based in part on her
assessment that the defendant had applied insufficient effort
during the examination process, resulting in feigned or
exaggerated cognitive limitations consistent with malingering.
The evaluator began by administering the Minnesota Multiphasic
Personality Inventory - Second Edition, a test which includes
"validity scales designed to detect random responding as well as
attempts by an examinee to distort results in a positive or
negative direction." The defendant's results on these validity
scales, she concluded, were consistent with the exaggeration of
brain injury, cognitive dysfunction, and disability. Then — after
the defendant had once again failed the same two malingering tests
earlier administered by his own retained expert — the BOP evaluator
terminated her examination, stating that the defendant's results
on those three tests "would serve to invalidate any measures of
cognitive functioning." With respect to the TOMM, the evaluator
specifically found that the defendant's "scores were significantly
below those that would be expected even of individuals presenting
with the most severe effects of traumatic brain injury." She also
specifically found that the defendant's self-described memory
deficits surrounding the circumstances of his alleged crimes were
"inconsistent with any known memory functions." The defendant was
- 5 -
then re-examined by his own expert, who concurred with the
conclusion that the defendant was legally competent.
In the wake of these reports, the defendant sought to
withdraw his request for a competency hearing and to change his
plea. The district court, unwilling to accept the defendant's
stipulation to his competency, said that it would conduct a
colloquy and make findings on the defendant's competency before
considering the defendant's proposed change of plea. At a combined
competency and change-of-plea hearing, see Fed. R. Crim. P. 11,
the court found the defendant legally competent and accepted his
guilty plea to all counts.
But that was not the end of the brouhaha over competency.
In the initial presentence investigation report (PSI Report), the
probation officer recommended a two-level enhancement for
obstruction of justice, see USSG §3C1.1, premised on the
defendant's "systematic, sustained, and intentional under
performance on objective testing as part of his evaluations in an
effort to present as incompetent to avoid legal culpability."
Employing similar reasoning, the probation officer recommended
against an offense-level reduction for acceptance of
responsibility. See USSG §3E1.1. Even though the defendant
objected to these recommendations, both were maintained in the
final version of the PSI Report.
- 6 -
At a presentence conference, the defendant reiterated
his objections to the PSI Report and apprised the district court
of his desire to offer expert testimony at the disposition hearing.
The government responded that it would present its own expert
testimony and chronicled additional conduct of the defendant that
it viewed as relevant to the disputed recommendations (including
circulating the letter at the store). Following the conference,
the government filed a sentencing memorandum and the defendant
filed a rejoinder.
The district court convened the disposition hearing on
May 25, 2018.1 After hearing the proffered expert testimony and
reviewing the relevant materials, the court found that the
government had shown by preponderant evidence that the defendant
had attempted to obstruct justice through his efforts "to
manipulate consciously and deliberately the psychological
evaluations in order to skew the justice system in his favor."
Accordingly, the court concluded that an obstruction-of-justice
enhancement was appropriate. Then, citing the strong inverse
relationship between obstruction of justice and acceptance of
responsibility, the court found that the defendant had not carried
1Without regard for its earlier commitment to allow the
presentation of expert testimony at the disposition hearing, the
district court issued a written sentencing order on April 10, 2018.
After the defendant objected, the court vacated the written
sentencing order. Because that order is a nullity, we do not
discuss it further.
- 7 -
his burden of showing that he qualified for an acceptance-of-
responsibility credit. It added that, in any event, the
defendant's distribution of the letter (which denied
responsibility for the charged crimes and tried to shift the blame
to the Boatyard's owner) was inconsistent with acceptance of
responsibility.
The applicable guideline sentencing range (GSR),
calculated with an enhancement for obstruction of justice and
without a credit for acceptance of responsibility, was 87-108
months. The district court proceeded to sentence the defendant to
95-month incarcerative terms on each of the 63 bank-fraud counts
and 60-month incarcerative terms on the two remaining counts, with
all sentences to run concurrently. The court also ordered the
defendant to pay restitution in the amount of $815,496.27. This
timely appeal followed.
II. ANALYSIS
In this venue, the defendant asserts that his sentence
was procedurally flawed due to two errors in the calculation of
his GSR. "Federal criminal sentences imposed under the advisory
guidelines regime are reviewed for abuse of discretion." United
States v. Santiago-Rivera, 744 F.3d 229, 232 (1st Cir. 2014).
Within this rubric, we consider claims of procedural error by
"assay[ing] the district court's factfinding for clear error and
afford[ing] de novo consideration to its interpretation and
- 8 -
application of the sentencing guidelines." United States v.
Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
A. Obstruction of Justice.
The defendant's principal plaint concerns the district
court's determination that an offense-level enhancement for
obstruction of justice was warranted. This determination was
premised upon the court's finding that the defendant feigned
incompetency. The defendant challenges that finding both as a
matter of fact and as a matter of law.
"[T]he obstruction-of-justice enhancement rests on the
rationale that 'a defendant who commits a crime and then . . .
[makes] an unlawful attempt to avoid responsibility is more
threatening to society and less deserving of leniency than a
defendant who does not so defy' the criminal justice process."
United States v. Emery, 991 F.2d 907, 912 (1st Cir. 1993)
(alteration in original) (quoting United States v. Dunnigan, 507
U.S. 87, 97 (1993)). The applicable guideline provision instructs:
If (1) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede,
the administration of justice with respect to
the investigation, prosecution, or sentencing
of the instant offense of conviction, and (2)
the obstructive conduct related to (A) the
defendant's offense of conviction and any
relevant conduct; or (B) a closely related
offense, [the sentencing court should]
increase the offense level by 2 levels.
- 9 -
USSG §3C1.1. The government must prove the applicability of this
enhancement by a preponderance of the evidence. See United States
v. Quirion, 714 F.3d 77, 79 (1st Cir. 2013).
It is a common-sense proposition that "a defendant who
feigns incompetency misrepresents his psychiatric condition to his
examiners, intending that they will believe him and convey their
inaccurate impressions to the court." United States v. Greer, 158
F.3d 228, 237 (5th Cir. 1998). We review a factual finding of
feigned incompetency only for clear error, and we will disturb
such a finding "only if a review of the record leaves us 'with the
definite and firm conviction that a mistake has been committed.'"
Quirion, 714 F.3d at 79-80 (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).
Here, the district court specifically found that the
defendant had feigned incompetency, engaging in a pattern of
malingering "in order to skew the justice system in his favor."
In making this finding, the district court acknowledged that the
defendant suffered a significant medical episode that temporarily
diminished his competency. But even though the defendant exerted
effort in his rehabilitation process, initial examination by the
defendant's own expert raised a substantial question of
malingering, documented by the results of the TOMM and VIP tests.
Noting this question, the district court wisely ordered further
testing, which yielded similar — but more definitive — results.
- 10 -
The court then heard testimony at the disposition hearing from
both experts, who elaborated upon their earlier conclusions: the
defendant's expert conceded that malingering was at least a
possible explanation for the defendant's test scores, and the BOP
expert cogently explained her conclusion that the defendant had
malingered during both of his competency evaluations.
The district court implicitly found these experts
credible. The defendant has pointed to nothing that would permit
us to second-guess either this credibility determination or the
feigned incompetency finding that flowed from it. See id. at 81
("Credibility determinations made at sentencing are peculiarly
within the province of the district court and will rarely be
disturbed on appeal."); United States v. Ruiz, 905 F.2d 499, 505
(1st Cir. 1990) ("The witness'[s] credibility [i]s for the talesman
— not for an appellate court."). Nor did the defendant challenge
the validity of the malingering tests administered by the
competency experts either through a request for a Daubert hearing,
see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93
(1993) (holding that Fed. R. Evid. 702 authorizes a "preliminary
assessment of whether the reasoning or methodology underlying the
testimony [of an expert] is scientifically valid and of whether
that reasoning or methodology properly can be applied to the facts
in issue"), or through arguments to the court.
- 11 -
We note, moreover, that the district court specifically
rejected the defendant's argument that malingering was
inconsistent with the defendant's concerted rehabilitation
efforts. The court found it not at all implausible that a
defendant would attempt to improve his condition through
rehabilitation while simultaneously underperforming on tests
relevant to his capacity to stand trial. So, too, the court was
unswayed by the defendant's suggestion that his selective memory
loss was not indicative of malingering but, rather, was indicative
of a concern that information shared would be used against him
(which the defendant now imaginatively recharacterizes as an
unannounced invocation of this Fifth Amendment privilege against
self-incrimination). These supportable findings come well within
the district court's proper province.
To sum up, we discern no clear error in the district
court's actual finding of feigned incompetency. See United States
v. Batista, 483 F.3d 193, 195 (3d Cir. 2007) (concluding that
district court did not clearly err in finding feigned incompetency
where defendant underwent five examinations, the first of which
found him incompetent); United States v. Aldawsari, 740 F.3d 1015,
1021 (5th Cir. 2014) (finding no clear error when district court
relied on expert report concluding defendant had feigned
incompetency, despite contrary expert testimony). "[I]f there are
two plausible views of the record, the sentencing court's choice
- 12 -
between them cannot be clearly erroneous." United States v.
Santos, 357 F.3d 136, 141 (1st Cir. 2004); accord Ruiz, 905 F.2d
at 508.
Even though we uphold the district court's factual
finding of feigned incompetency, we still have some unfinished
business. The court's use of that finding as the foundation of an
obstruction-of-justice enhancement raises an important question,
as yet unresolved in this circuit: may feigned incompetency
comprise the basis for an obstruction-of-justice enhancement and,
thus, support an upward offense-level adjustment under USSG
§3C1.1? This is a question of law, engendering de novo review.
See United States v. Moreno, 947 F.2d 7, 10 (1st Cir. 1991).
Although this is a question of first impression, we do
not approach it without some guidance. The commentary to the
sentencing guidelines, "which we generally treat as authoritative
unless it conflicts with federal law," United States v. Cates, 897
F.3d 349, 354 (1st Cir. 2018), is instructive. That commentary is
circumspect as to the scope of what it means to obstruct the
administration of justice, stating generally that "the conduct to
which th[e] adjustment applies is not subject to precise
definition" and adding that "[o]bstructive conduct can vary widely
in nature, degree of planning, and seriousness." USSG §3C1.1 cmt.
n.3.
- 13 -
The commentary does, however, describe some limitations
to the enhancement's application. For instance, a defendant's
choice to exercise a constitutional right does not constitute
obstruction of justice. See id. cmt. n.2. Nor do inaccurate
testimony or statements that "result from confusion, mistake, or
faulty memory." Id.
The application notes (part of the commentary) do supply
a non-exhaustive list of examples of obstructive conduct. See id.
cmt. n.4. That conduct includes, inter alia, "threatening,
intimidating, or otherwise unlawfully influencing a co-defendant,
witness, or juror, directly or indirectly, or attempting to do
so"; "producing or attempting to produce a false, altered, or
counterfeit document or record during an official investigation or
judicial proceeding"; "providing materially false information to
a judge or magistrate judge"; "providing a materially false
statement to a law enforcement officer that significantly
obstructed or impeded the official investigation or prosecution of
the instant offense"; and "providing materially false information
to a probation officer in respect to a presentence or other
investigation for the court." Id. This list can be compared with
its inverse — a list entitled "Examples of Conduct Ordinarily not
Covered." Id. cmt. n.5. Pertinently, this list includes "making
false statements, not under oath, to law enforcement officers,"
unless such statements significantly obstructed or impeded the
- 14 -
official investigation or prosecution of the instant offense, and
"providing incomplete or misleading information, not amounting to
a material falsehood, in respect to a presentence investigation."
Id. Feigning incompetency does not appear on either list.
We think the application notes make pellucid that
obstruction of justice is capacious enough to encompass a broad
swathe of conduct. See United States v. Voccola, 99 F.3d 37, 46
(1st Cir. 1996) (stating that the "Application Notes are plain
that a wide range of conduct will suffice to properly enhance a
sentence for obstruction of justice"); see also United States v.
Maccado, 225 F.3d 766, 771 (D.C. Cir. 2000) (noting that "egregious
as well as non-egregious conduct" alike appear within the covered
conduct list). And in keeping with the tenor of those application
notes, our determination must be tethered to considerations such
as the nature and gravity of the defendant's conduct and the
likelihood that such conduct will interfere with the
administration of justice. See United States v. Wahlstrom, 588
F.3d 538, 544 (8th Cir. 2009) (citing USSG §3C1.1 cmt. n.3); Greer,
158 F.3d at 235.
Against this backdrop, we turn to the case at hand. At
the outset, we note that the type of conduct involved in feigning
incompetency closely resembles several of the listed examples of
obstructive conduct (including attempting to produce a false
record and providing materially false information to a judge or
- 15 -
probation officer). And since a defendant "is accountable for
[his] own conduct and for conduct that [he] . . . counseled,
commanded, induced, procured, or willfully caused," USSG §3C1.1
cmt. n.9, it seems logical that he should be held responsible for
erroneous conclusions that he has caused another to reach. See
United States v. Owolabi, 69 F.3d 156, 164 (7th Cir. 1995)
(upholding district court's imposition of enhancement when
defendant, inter alia, "most assuredly facilitated the conveying
of false information to the court through his counsel"). Seen in
this light, feigned incompetency fits neatly within the listed
examples of obstructing conduct. See United States v. Cline, 332
F. App'x 905, 910-11 (4th Cir. 2009); Greer, 158 F.3d at 235.
In all events, the guideline commentary strongly
suggests that the obstruction-of-justice enhancement should be
construed to encompass feigned incompetency. Such conduct is
"serious[]," USSG §3C1.1 cmt. n.3, as criminal proceedings are
stalled while a defendant is deemed incompetent to stand trial,
see 18 U.S.C. § 4241(d). In addition, feigning incompetency in
order to secure protections put in place for those who are actually
unfit to stand trial threatens to undermine those protections.
Thus, such opprobrious conduct has the potential not only to evade
justice in the individual case but also to disrupt the
administration of justice more broadly.
- 16 -
There is more. Regardless of whether a defendant's
pretense of incompetency is successful, a serious risk exists that
his efforts will significantly impede or at least delay the
progress of his case. After all, a court confronted with a
question of legal competency must tread carefully and determine
whether the defendant has "sufficient present ability to consult
with his lawyer . . . [and] a rational as well as factual
understanding of the proceedings against him." Rosenthal v.
O'Brien, 713 F.3d 676, 684 (1st Cir. 2013) (quoting Dusky v. United
States, 362 U.S. 402, 402 (1960) (per curiam)); see 18 U.S.C.
§ 4241(a). This is often a painstaking, drawn-out process.
Consequently, even if the court ultimately finds the defendant
competent, substantial time and resources will likely have gone
down the drain due to the defendant's malingering.
This reasoning applies with equal force when a defendant
has not spun a fictitious illness from whole cloth but, rather,
has willfully exaggerated the symptoms of a genuine illness in a
manner intended to influence a competency assessment. See Batista,
483 F.3d at 195-96 (affirming district court's feigned
incompetency finding when defendant intentionally did not take
medication "to increase his chances of being found incompetent");
United States v. Patti, 337 F.3d 1317, 1320, 1325 (11th Cir. 2003)
(affirming application of enhancement based on feigned
incompetency when defendant exaggerated symptoms after car
- 17 -
accident). After all, "even if there is sufficient evidence to
justify a competency hearing absent the defendant's machinations,
feigning incompetency during a psychiatric evaluation would always
seem to increase the risk that the defendant will erroneously be
found incompetent." Greer, 158 F.3d at 238.
Of course, a criminal defendant should not have to fear
that raising a genuine question of competency will adversely affect
his case. But we are confident that imposing an obstruction-of-
justice enhancement on a defendant who deliberately feigns
incompetency in order either to avoid or delay his trial (and,
thus, his punishment) will not subject his right to request a
competency hearing to an unconstitutional chilling effect. Accord
United States v. Bonnett, 872 F.3d 1045, 1046-47 (9th Cir. 2017)
(per curiam); Batista, 483 F.3d at 197-98; Patti, 337 F.3d at 1325;
Greer, 158 F.3d at 237. "While a criminal defendant possesses a
constitutional right to a competency hearing if a bona fide doubt
exists as to his competency, he surely does not have the right to
create a doubt as to his competency or to increase the chances
that he will be found incompetent by feigning mental illness."
Greer, 158 F.3d at 237. We add, moreover, that interpreting the
obstruction-of-justice enhancement to encompass feigned
incompetency serves to bolster the constitutional rights of those
who are legally incompetent by discouraging imposters. After all,
without this means of deterrence, judges no doubt would feel
- 18 -
obligated to approach any invocation of those rights with greater
skepticism. We hold, therefore, that feigned incompetency may
comprise the basis for an obstruction-of-justice enhancement.
This holding aligns our court with all of our sister circuits that
have spoken to the issue. See Bonnett, 872 F.3d at 1047; United
States v. Wilbourn, 778 F.3d 682, 684-85 (7th Cir. 2015); Cline,
332 F. App'x at 909; Batista, 483 F.3d at 197; United States v.
Binion, 132 F. App'x 89, 93 (8th Cir. 2005) (per curiam); Patti,
337 F.3d at 1325; Greer, 158 F.3d at 235.
The defendant struggles to deflect this holding. He
argues that his efforts to feign incompetency were not material,
that they were not related to any relevant conduct, and that, in
any event, his malingering did not significantly obstruct or impede
the investigation or prosecution of the charged crimes. These
arguments lack force.
The first component of the defendant's asservational
array rests on a problematic premise. He posits that his false
statements to competency evaluators must cross a materiality
threshold before triggering the enhancement. This argument sweeps
too broadly: although materiality is mentioned in the application
notes and is defined as "evidence, fact, statement, or information
that, if believed, would tend to influence or affect the issue
under determination," USSG §3C1.1 cmt. n.6, the application notes
do not uniformly demand a finding of materiality. Only a handful
- 19 -
of the examples (those related to providing materially false
information or statements) contain such a requirement. See id.
cmt. n.4.
Here, however, we need not decide whether the
materiality requirement applies beyond those delineated examples.
Ordinarily, "materiality is a case-by-case issue," United States
v. Biyaga, 9 F.3d 204, 205 (1st Cir. 1993), and we review a district
court's finding of materiality for clear error, see United States
v. Feldman, 83 F.3d 9, 13 (1st Cir. 1996). Having discerned no
clear error in the district court's finding that the defendant
engaged in a pattern of malingering that amounted to feigned
incompetency, we can safely say that if a materiality requirement
pertains here, it would be satisfied. As the Fifth Circuit has
observed, "a criminal defendant's sanity is always material: If
he succeeds at convincing the court of his incompetency, he does
not only increase his chances at acquittal, as he would if he
committed perjury or falsified a record; he makes it impossible to
even try him." Greer, 158 F.3d at 235. It follows, we think,
that a finding of feigned incompetency will usually jump any hurdle
posed by a materiality requirement.
Next, the defendant argues that his obstructive conduct
was not related to any relevant conduct. This argument draws its
essence from the requirement that obstructive conduct must be
"related to . . . the defendant's offense of conviction and any
- 20 -
relevant conduct." USSG §3C1.1. In turn, the guidelines define
"relevant conduct" as "all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or willfully
caused by the defendant . . . that occurred during the commission
of the offense of conviction, in preparation for that offense, or
in the course of attempting to avoid detention or responsibility
for that offense." Id. §1B1.3(a)(1).
The defendant submits that his actions did not comprise
an attempt to avoid responsibility for his crimes because he did
not possess the requisite intent. See United States v. White, 335
F.3d 1314, 1319 (11th Cir. 2003) (holding that inquiry into
relevant conduct "requires the sentencing judge to assess the
defendant's intent for committing the additional crime").
Effectively, then, the defendant invites us to retrace his steps
to determine whether he participated in good faith in the serial
competency evaluations. We decline his invitation: we already
have determined that the district court did not commit clear error
in finding that the defendant feigned incompetency "in order to
skew the justice system in his favor," and this finding implicitly
incorporates a subsidiary finding that the defendant acted with
the intent to avoid responsibility for his crimes. His conduct
was, therefore, undeniably "relevant."
The defendant's final sally fares no better. He contends
that feigned incompetency may comprise obstruction of justice only
- 21 -
when it "significantly obstructed or impeded the official
investigation or prosecution of the instant offense." This
language is derived from one (and only one) of the examples of
covered conduct in the application notes: "providing a materially
false statement to a law enforcement officer." USSG §3C1.1 cmt.
n.4(G). But that cherry-picked example can be contrasted with two
other examples, which specify, respectively, that an obstruction-
of-justice enhancement may lie when a defendant provides
"materially false information to a judge or magistrate judge" or
"to a probation officer in respect to a presentence or other
investigation for the court." Id. cmt. n.4(F), (H). These latter
examples carry no requirement that the conduct must have
"significantly obstructed or impeded" the case. And since
attempted conduct may ground the enhancement, see USSG §3C1.1; see
also Wilbourn, 778 F.3d at 684 ("[S]uccess is not a requirement
for imposing an enhancement for obstruction of justice — an attempt
will do as well."), it is plain that the offending conduct need
not have had any effect on the case.
In an effort to turn the tide, the defendant counters
that the statements at issue here were provided "to someone other
than a court officer" and, thus, his conduct bears a closer
resemblance to providing false information to a law enforcement
officer. So, he says, his conduct could not comprise obstruction
of justice within the purview of the enhancement unless it impeded
- 22 -
the progress of the case. This construction elevates hope over
reason.
Stripped to its essence, the defendant's conduct is more
similar to providing materially false information to a probation
officer than to a law enforcement officer. Like the role of a
probation officer, the role of a competency evaluator is to furnish
relevant information to the court. Necessarily, then, statements
to a competency evaluator are made with the defendant's full
knowledge that they are likely to impact his court case. In
contrast, communications to law enforcement officers face a higher
bar because such communications are often "made on the spur of the
moment and [may] reflect panic, confusion, or mistake." Greer,
158 F.3d at 235. We deem it implausible that the extra precautions
surrounding obstructive conduct occurring in interactions with law
enforcement officers were intended to extend to a context in which
no similar concerns arise. Thus, we reject the defendant's
argument and conclude that in order to impose the enhancement, a
sentencing court is not required to find that an incompetency-
feigning defendant has, in the process, significantly obstructed
or impeded the official investigation or prosecution of the crimes
charged.2
2 Of course, a sentencing court may take any such impediment
(or the absence thereof) into account when determining whether to
impose the obstruction-of-justice enhancement. See Batista, 483
F.3d at 197; Patti, 337 F.3d at 1325. Although we cannot know
- 23 -
That ends this aspect of the matter. We discern no error
in the district court's application of the obstruction-of-justice
enhancement on the basis of the defendant's feigned incompetency.
B. Acceptance of Responsibility.
The defendant has another string to his bow: he takes
aim at the district court's refusal to grant him an offense-level
reduction for acceptance of responsibility. See USSG §3E1.1. The
defendant's arrow misses his target.
A reduction for acceptance of responsibility is
available "[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense." Id. A "defendant has the burden
of proving his entitlement to an acceptance-of-responsibility
credit, and the sentencing court's determination to withhold the
reduction will be overturned only if it is clearly erroneous."
United States v. Franky-Ortiz, 230 F.3d 405, 408 (1st Cir. 2000)
(quoting United States v. Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir.
1993)).
Our determination that the sentencing court did not err
in imposing an obstruction-of-justice enhancement goes a long way
toward defeating the defendant's quest for an acceptance-of-
precisely how the defendant's case would have unfolded absent his
malingering, in part due to the legitimate question of competency
raised by his stroke, it is crystal clear that his conduct delayed
proceedings by at least several months. So viewed, the district
court had ample reason to find that this delay supported
application of the enhancement.
- 24 -
responsibility credit. Barring some extraordinary circumstance or
set of circumstances, a defendant who has received an obstruction-
of-justice enhancement normally is ineligible for an acceptance-
of-responsibility credit. See USSG §3E1.1 cmt. n.4. The instances
in which the two may go hand in hand are "hen's-teeth rare."
United States v. Maguire, 752 F.3d 1, 6 (1st Cir. 2014).
There are no hen's teeth to be found here. The district
court explicitly found that "the case [wa]s not extraordinary,"
remarking that the defendant's pretended incompetency went "to the
very heart of the judicial process." The defendant identifies no
error in this finding, instead reiterating his arguments against
the court's application of the obstruction-of-justice enhancement
in the first place. In any event, this finding easily passes
muster under clear-error review3 and, therefore, the court's
refusal to shrink the defendant's offense level for acceptance of
responsibility is unimpugnable.
3 This supportable finding makes it unnecessary for us to
address the defendant's attack on the district court's alternative
finding that the defendant's circulation of the blame-shifting
letter at his store indicated that he had not accepted
responsibility for his crimes. For the sake of completeness,
though, we note that the defendant's argument — that conduct
preceding the filing of federal charges cannot be considered when
assessing acceptance of responsibility — was not aired below.
Since "legal theories not raised squarely in the lower court cannot
be broached for the first time on appeal," Teamsters Union, Local
No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992),
the argument is waived.
- 25 -
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
- 26 -