United States v. Helene Donna Alpert, United States of America v. Carl Henry Alpert , 989 F.2d 454 ( 1993 )

JOHNSON, Senior Circuit Judge:

Helene Donna Alpert and Carl Henry Alpert appeal the district court’s application of the United States Sentencing Guidelines (the “Sentencing Guidelines”) in computing their sentences. The district court enhanced the Alperts’ sentences for obstruction of justice because they moved to California while engaged in plea negotiations with the United States Attorney. In addition, the district court departed upward in sentencing Carl Alpert to ensure that his sentence would be twice as long as the sentence given co-defendant Helene Alpert, and because the district court believed that the Sentencing Guidelines did not adequately consider the extent of Carl’s fraudulent activity. We hold that the district court erred in enhancing the Alperts’ sentences and in departing upward in sentencing Carl.

I. STATEMENT OF FACTS

On September 12, 1990, a grand jury returned a 42 count indictment against Carl and Helene Alpert, alleging that between February 1984 and the September 1990 the Alperts had engaged in a scheme to defraud various financial services companies through the use of fraudulently obtained credit cards and false loan applications.

Several months before being indicted, the Alperts had engaged in plea negotiations with the office of the United States Attorney in Atlanta. Before reaching a plea agreement, the Alperts left the Atlanta area without leaving a change of address with the postal service, their landlord or any other creditor. However, while away from Atlanta, the Alperts did maintain communication with Carl’s attorney. Although Carl’s attorney was in contact with the Assistant United States Attorney (the “AUSA”) handling the case, the AUSA never notified Carl’s attorney that a grand jury had returned an indictment against the Alperts or that a warrant had been issued for their arrest.

Shortly after the grand jury returned the indictment, Helene was stopped by police officers in Santa Clara, California. The police officers had reason to believe that the automobile she was driving had been fraudulently leased by Carl. Helene provided the police with true and correct identification. However, because those officers did not discover the existence of the outstanding warrants against her, Helene was not arrested. Upon learning of the warrant, Helene voluntarily returned to Atlanta where she appeared twice for fingerprinting and handwriting exemplars. The police officers, however, did arrest Carl for fraudulently leasing the automobile Helene had been driving. When arrested, Carl gave police a false name. In addition, the police discovered other false identification materials when they arrested Carl.

Both Carl and Helene entered guilty pleas. In the presentence investigation report, the probation officer recommended that Carl and Helene both receive a two level enhancement for obstruction of justice. The probation officer based the recommendation on the fact that Carl and Helene had left for California during ongoing plea negotiations and used false identification while in California. The district court adopted the probation officer’s recommendation over the objections of Carl and Helene, enhancing each of their sentences by two levels. In addition, the district court made a three level upward departure from the Sentencing Guidelines in computing Carl’s sentence: two levels for the extent of Carl’s fraudulent activity and one additional level departure because the district court thought Carl’s sentence should be twice as long as Helene’s sentence.

II. DISCUSSION

A. Enhancement for obstruction of justice

The Sentencing Guidelines mandate a two level enhancement “if the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense.” United States Sentencing Commission, Guidelines Manual § 3C1.1 (1990) (hereinafter “U.S.S.G.”).¹ The district court enhanced the sentences of both Carl and Helene by two levels after concluding that “the defendants’ leaving town in the middle of plea negotiations without notifying the government and their use of phony names in California once they got there constitutes an obstruction of justice.”

Whether the district court properly applied the obstruction of justice enhancement is a mixed question of law and fact. United States v. Burton, 933 F.2d 916, 917 (11th Cir.1991) (per curiam). “Although the district court’s findings of fact are reviewed under a clearly erroneous standard, the court’s ‘application of law to those facts is subject to de novo review.’ ” Id. (quoting United States v. Huppert, 917 F.2d 507, 510 (11th Cir.1990)). Additionally, because the question on appeal, whether the Alperts’ conduct constitutes willful obstruction, turns primarily on the legal interpretation of a Sentencing Guideline term, this Court’s review is de novo. See Burton, supra, 933 F.2d at 917 (question of whether “mere flight” constitutes willful obstruction reviewed de novo).

The district court’s finding that Carl and Helene left Atlanta for California while engaged in plea negotiations is amply supported by the record, as is the district court’s finding that Carl used a “phony name” while in California. Indeed, the evidence is undisputed that Carl used false identification to lease an automobile while in California and that Carl provided police officers with false identification when arrested. However, the district court’s finding that Helene used a “phony name” while in California is clearly erroneous. There is no evidence in the record that Helene used anything other than her true and correct name while she was away from the Atlanta area. Thus, this Court must determine whether Helene’s exodus alone, or Carl’s exodus in conjunction with the use of false identification, constitutes willful obstruction.

The commentary to section 3C1.1 makes clear that Carl’s use of false identification does not constitute willful obstruction. Note 4(a) provides that “providing 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” does not constitute willful obstruction. The district court did not find, nor is there any evidence to support a finding, that Carl’s use of a false name actually hindered the investigation. Accordingly, the district court erred in relying on this ground to enhance Carl’s sentence.

Whether Carl and Helene’s departure from the Atlanta area during plea negotiations constitutes willful obstruction of justice presents a novel issue that has not been considered by this Court and is not addressed by the commentary to the Sentencing Guidelines. However, our analysis of section 3C1.1 set forth in Burton, supra, 933 F.2d at 917-18, provides some guidance. In Burton, we held that mere flight does not constitute willful obstruction, reasoning that the “mens rea requirement of willfully obstructing or attempting to obstruct the administration of justice ... ‘requires that the defendant act with the purpose of obstructing justice.’ ” Id. (quoting United States v. Stroud, 893 F.2d 504, 507 (2d Cir.1990)) (emphasis in original). See also U.S.S.G. § 3C1.1, comment, (n. 4(d)) (“avoiding or fleeing from arrest” does not warrant obstruction of justice enhancement).

There is no evidence in the record that the Alperts acted with the purpose of obstructing justice. After leaving the Atlanta area, the Alperts were in continual contact with Carl’s lawyer. Carl’s lawyer was never informed that an arrest warrant had been issued for the Alperts’ arrest. Once Helene learned of the warrant, she voluntarily returned to Atlanta and submitted fingerprints and handwriting exemplars to the grand jury. Carl was unable to return voluntarily because he had already been arrested by the California authorities when he learned of the arrest warrant. Given these facts, we conclude that the Alperts’ actions were not undertaken with the purpose of obstructing justice. Cf. United States v. Sanchez, 928 F.2d 1450, 1458-59 (6th Cir.1991) (abandonment of apartment after arrest of codefendant does not constitute obstruction of justice); United States v. Madera-Gallegos, 945 F.2d 264, 267-68 (9th Cir.1991) (nine month absence from jurisdiction does not constitute obstruction of justice).

The government asks us to focus on the time lag between contact with authorities and flight. Under the government’s proposed interpretation of section 3C1.1, only suspects who flee during the immediate aftermath of a crime would not be subject to an obstruction of justice enhancement. All other flight would warrant an obstruction enhancement. In support of its view, the government cites United States v. Mondello, 927 F.2d 1463, 1466-67 (9th Cir.1991), where the Ninth Circuit held that a suspect who “played a cat and mouse game of avoiding authorities” for two weeks willfully obstructed justice. While the time lag between the commission of a crime and flight may be some indication of a defendant’s purpose in fleeing, it is not dispositive. Indeed, the facts at issue in Mondello support the conclusion that the defendant in Mondello acted with the purpose of obstructing justice. The defendant there knew that a warrant had been issued for his arrest, and had agreed to voluntarily surrender to the authorities. However, after agreeing to surrender, the defendant evaded the authorities for two weeks, and when the defendant was finally located he fled from his car. Id. at 1466. In contrast, at no time after the Alperts left Atlanta did they know that an arrest warrant had been issued. Carl was not aware of the warrant until his arrest by the California authorities, and as soon as Helene was aware of the warrant, she voluntarily surrendered. In addition, throughout the period of their absence, they were in contact with Carl’s lawyer, who was never informed that an arrest warrant had been issued.²

B. Upward departure

A district court may not depart from the sentencing range mandated by the Sentencing Guidelines, “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.” 18 U.S.C.A. § 3553(b) (West Supp.1992). In determining whether a factor was adequately taken into consideration, the sentencing court may consider only the Guidelines, policy statements, and official commentary. Id.

We perform a three-step analysis in reviewing upward departure cases. First, we consider de novo whether the Sentencing Guidelines consider the particular factor relied upon by the district court. If we determine that the factor is not considered by the Guidelines, we must then decide whether consideration of the factor is consistent with the Guidelines. Second, we review the district court’s factual determination that the aggravating factor exists under the clearly erroneous standard. Finally, if the factor was properly taken into account by the district court, we determine whether the extent of the departure was reasonable, giving due deference to the district court. United States v. Valle, 929 F.2d 629, 631 (11th Cir.) (per curiam), cert. denied, — U.S. -, 112 S.Ct. 401, 116 L.Ed.2d 350 (1991).

1. Upward departure to correct sentencing disparity

The district court departed upward one level to ensure that Carl’s sentence would be twice as long as Helene’s. In United States v. Chotas, 968 F.2d 1193 (11th Cir.1992) (per curiam), we reviewed a similar departure based on the district court’s belief that the Sentencing Guidelines failed to account for the fact that one co-defendant was more culpable than the other co-defendant. There we held that “insufficient disparity” in the sentences of co-defendants represents an improper ground for departure. Id. at 1198. In reaching that holding, we noted that the Sentencing Guidelines were structured to account for relative culpability, and that this structure demonstrated that “the Sentencing Commission fully anticipated sentencing disparity between defendants involved in the same offense.” Id. at 1197. Accordingly, under our holding in Chotas, the district court’s upward departure to account for Carl’s higher level of culpability was error.

2. Upward departure for extent of Carl’s fraudulent conduct

In addition to the one level reconciliation departure, the district court made a two level departure because of the extent of Carl’s fraudulent conduct. The district court based its two level upward departure on two factors: the number of acts of fraudulent conduct and the length of time of the fraudulent conduct. Because both of these factors are considered by the Guidelines, the district court’s upward departure was improper.

As part of his sentence, Carl received a two level enhancement for “more than minimal planning.” U.S.S.G. § 2F1.1(b)(2). The Sentencing Guidelines define “more than minimal planning” as “more planning than is typical for commission of the offense in simple form,” and point out that “ ‘more than minimal planning’ is deemed present in any case involving repeated acts over a period of time.” U.S.S.G. § 1B1.1, comment (n. 1(f)). Because the “more than minimal planning” enhancement encompasses repeated acts over a period of time, the district court erred in departing upwards.

III. CONCLUSION

For the foregoing reasons, we VACATE the sentences of Carl and Helene Alpert, and REMAND the cases for resentencing.

1 . The 1990 edition of the U.S.S.G. contained the sentencing guidelines in effect at the time of the Alperts’ sentencing. See United States v. Stinson, 943 F.2d 1268, 1270 n. 1 (11th Cir.1991) ("sentencing courts are to apply the guidelines and policy statements that are in effect on the date the defendant is sentenced”).

2 . The government argues that even if the district court erred in applying an obstruction of justice enhancement to Helene’s sentence, it need not be set aside because the sentence she received is within the range prescribed for her offense without the two-level enhancement. We must vacate any sentence imposed as a result of an incorrect guideline application. See 18 U.S.C.A. § 3742(f) (West Supp.1992). Because Helene’s sentence was based on an incorrect enhancement for obstruction of justice, this Court must vacate Helene's sentence. See United States v. Giltner, 889 F.2d 1004, 1009 (11th Cir.1989) (remanding case for resentencing even though length of incorrect sentence fell within range of correct sentence).