DocketNumber： 92-1220
Filed Date： 8/27/1992
Status： Precedential
Modified Date： 9/21/2015
August 27, 1992 [NOT FOR PUBLICATION]
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No. 92-1220
UNITED STATES,
Appellee,
v.
ISAO ISADORUS IMA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Torruella, Cyr, and Stahl,
Circuit Judges.
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Stephen H. Mackenzie on brief for appellant.
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Richard S. Cohen, United States Attorney, Richard W. Murphy,
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Assistant United States Attorney and Margaret D. McGaughey,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. The appellant, Isao Isadorus Ima, pled
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guilty to one count of violating 8 U.S.C. 1326, entering
the United States after having been deported. His appeal is
addressed solely to the district court's sentencing decision,
specifically to the court's adding a 2 level enhancement for
obstruction of justice and declining to subtract 2 levels for
acceptance of responsibility.
The base offense level for a violation of 8 U.S.C.
1326 is 8. U.S.S.G. 2L1.2(a).1 The district court found
that Ima had obstructed justice by providing materially false
information to the probation officer, in an attempt to affect
the sentence ultimately imposed, during the course of that
officer's preparation of the presentence report. The court,
therefore, pursuant to U.S.S.G. 3C1.1,2 increased the
offense level by 2 to a total offense level of 10. The court
also concluded that Ima was not entitled to a 2 level
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1. This reference, as well as all subsequent references, are
to the guidelines in effect as of November 1991.
2. "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, increase the offense level by 2
levels." U.S.S.G. 3C1.1.
Among the examples of the types of conduct to which this
enhancement applies, the guideline commentary lists
"providing materially false information to a probation
officer in respect to a presentence or other investigation
for the court." U.S.S.G. 3C1.1, comment. (n.3(h)).
Material information, as used in 3C1.1, means
information "that, if believed, would tend to influence or
affect the issue under determination." U.S.S.G. 3C1.1,
comment. (n.5).
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downward adjustment for acceptance of responsibility. The
resulting applicable guideline range for someone, like Ima,
in criminal history category I, is 6-12 months. Ima was
sentenced to an 8 month term of imprisonment.
As an initial matter, the government contends that this
appeal is moot because Ima's term of incarceration was
expected to terminate on or about May 27, 1992 and he was
subject to immediate deportation upon his release. Although
that date has now passed, counsel for Ima has not told us
whether, in fact, Ima has been released and deported, but
neither does he contest either of these assumptions, so we
will accept them as accurate.
Counsel contends, nonetheless, that this appeal is not
moot because of potential collateral consequences. His
reasoning runs as follows: The collateral consequences
pertain to a potentially increased sentence if Ima should, in
the future, once again, enter the United States and, once
again, face federal criminal sentencing. Because the
sentence, presently at issue, was a sentence of imprisonment
of at least 60 days, this sentence would be counted in any
future sentence, by adding 2 points to Ima's criminal history
category. See U.S.S.G. 4A1.1(b). If, however, we accept
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Ima's arguments on the merits, i.e., there was error in
increasing the offense level by 2 (from offense level 8 to
level 10) for obstruction of justice as well as in failing to
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decrease the offense level by 2 (from offense level 8 to
level 6) for acceptance of responsibility, the applicable
sentencing guideline range for the instant offense would be
0-6 months. If upon remand in this appeal, the district
court were to resentence Ima to a term (within this
guideline) of less than 60 days, this corrected sentence
could not be counted in determining his criminal history
category in any future sentence.
We pass an initial question whether the likelihood of
these multiple contingencies occurring make the claimed
collateral consequences too speculative and attenuated to
negate mootness. Because there could be a benefit to Ima in
having his sentence corrected even though he already has
served that sentence, we decline to find the appeal moot and
we proceed to the merits. United States v. Dickey, 924 F.2d
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836, 838 (9th Cir.) (appeal is not moot because appellant was
sentenced to a term of imprisonment in excess of 60 days and
any possible future sentencing under the guidelines would
result in an increase of criminal history score by 2 points
instead of single point he would have received had he been
sentenced to probation), cert. denied, 112 S. Ct. 383 (1991);
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United States v. Mares-Molina, 913 F.2d 770, 773 n.3 (9th
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Cir. 1990) (similar); United States v. Montenegro-Rojo, 908
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F.2d 425, 431 n.8 (9th Cir. 1990) (similar).
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We flesh out the context in which Ima's arguments are
made. In the course of the presentence investigation, Ima
told the probation officer that he entered the United States
on September 1, 1991 to consult with his lawyers and others
on business and immigration matters. He said that his
corporation, U.S. Japan Hitech Hitouch Research Institute,
was legally registered in the United States and was set up to
invest up to $500 million of Japanese funds in the United
States in cooperation with Bowdoin College and other
institutions. He said that "the people concerned" strongly
encouraged him to come to the United States as soon as
possible.
He also claimed that he was "informed by the American
Embassy in Tokyo" that every entrepreneur, who, on and after
October 1, 1991, brings $1 million or more to the United
States and thereby creates at least ten jobs, would be given
United States citizenship. He wanted to consult with his
lawyers about his entire family immigrating here using a $5
million start-up fund.
By this exposition, Ima sought to explain that he
entered the United States in haste and to avoid the delay
which would occur in following the procedure required for
lawful entry. Ima then explained that, on September 13th, he
went to Nomura International Securities in Manhattan, New
York and picked up three checks, totally $5 million. On his
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return trip to Portland, Maine, however, he was in a car
accident in Connecticut, and the checks blew away.
In investigating these claims, the probation office was
advised by Peter Chepucavage, the general counsel at Nomura
International Securities, that, although Ima was there
briefly on September 13th, there is "no record of significant
activity during Mr. Ima's visit or any indication that checks
were issued." Further, the police officer investigating
Ima's car accident reported that there were no papers or
documents strewn about at the accident scene or any
indication that documents were lost. The car was damaged,
but intact and towed from the scene. Ima and his wife had
access to their vehicle after the accident and removed their
many belongings from the car.
In finding an obstruction of justice, the court
concluded that the story provided by Ima to the probation
officer concerning his intended investment undertakings and
the securing and subsequent loss of $5 million worth of
checks was materially false. The court also concluded that
this obstruction of justice negated Ima's claim of acceptance
of responsibility. See U.S.S.G. 3E1.1, comment. (n.4)
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("Conduct resulting in an enhancement under 3C1.1
(Obstructing or Impeding the Administration of Justice)
ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct").
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On appeal, Ima contends that the district court erred
(1) in assessing the 2 level upward adjustment because the
information provided was not material3 and (2) in not
assessing a 2 level downward adjustment because the
obstruction of justice finding was erroneous and he
demonstrated sincere contrition and remorse. We need only
consider the first contention.
The standard of review of a finding of materiality to
materiality
support an enhancement pursuant to 3C1.1 for providing
materially false information is the subject of disparate
views. Compare United States v. Hicks, 948 F.2d 877, 886
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(4th Cir. 1991) (the question of materiality is a factual
determination subject to the clearly erroneous standard) with
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United States v. Rodriguez, 943 F.2d 215, 218 (2d Cir. 1991)
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(the appropriate interpretation of the definition of the word
"material" is a matter of legal interpretation subject to de
novo review); see also United States v. Cusumano, 943 F.2d
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305, 315 (3d Cir. 1991) (assuming, without deciding, that the
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3. We summarily reject Ima's additional claim that the
burden of showing the falsity of the information was
inappropriately placed on him. The reported statements of
Mr. Chepucavage and of the police officer investigating Ima's
automobile accident belie Ima's contention that the
government failed to put forth evidence of the untruthfulness
of his statements.
Likewise, we summarily reject Ima's contention that the
district court failed to determine that he intended to
obstruct justice by making the statements at issue. The
court expressly rejected Ima's assertion of a language
barrier and concluded that his statements were an obvious
effort to affect his criminal sentence.
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standard of review is plenary), cert. denied, 112 S. Ct. 881
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(1992); cf. United States v. Moreno, 947 F.2d 7, 10 (1st Cir.
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1991) (whether conduct is encompassed within the scope of
3C1.1 is subject to de novo review). We will assume, without
deciding, that our review of a finding of materiality is de
novo, for even pursuant to this standard, more favorable to
Ima, there was no error.
A probation officer conducts a presentence investigation
to aid the court in its determination of an appropriate
sentence. Information that, if believed, would tend to
influence or affect the issue under determination, i.e., the
appropriate sentence, is material. U.S.S.G. 3C1.1,
comment. (n.5); see also United States v. Dedeker, 961 F.2d
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164, 166-67 (11th Cir. 1992) (a past conviction, which would
not affect the criminal history category, is nonetheless
material to the choice of a sentence within a range and thus
failure to disclose this conviction can warrant enhancement
pursuant to 3C1.1). We agree with the district court that
Ima's story of why he entered the country illegally was
designed to place his conduct of illegal entry in the most
favorable light and to gain the court's sympathy in the hope
of a lower sentence within the guideline range. A court
might well impose a shorter sentence on a defendant who,
although entering unlawfully, did so because of a misguided
impression of urgency in pursuit of legitimate business and
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family concerns, as compared to a defendant with no such
misapprehension or benign intentions. There was no error in
district court's finding that Ima provided materially false
information as described by 3C1.1 and imposing a 2 level
enhancement for obstruction of justice.
We note that Ima's claim that his appeal is not moot
depends on our acceptance of both of his arguments on the
merits. We have rejected his contention that the 2 level
increase (from level 8 to level 10) for obstruction of
justice was error. Consequently, even were we to accept his
other contention, that he should have been given a 2 level
reduction for acceptance of responsibility, the offense level
would simply revert back to the original base offense level
of 8. Ima gains no benefit in only having his offense level
reduced to level 8. The guideline range for offense level 8
is 2-8 months. Any sentence imposed within this range would
necessarily be a term of imprisonment of at least 60 days.
The increase in the criminal history category, should Ima in
the future again face criminal sentencing, would occur
irrespective of the acceptance of responsibility
determination. We, therefore, need not address that
argument. We add only 2 comments. First, a finding of
obstruction of justice, which was the basis for the district
court's refusal to award a 2 level reduction for acceptance
of responsibility, is, in the usual case, sufficient support
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for such refusal. United States v. Aymelek, 926 F.2d 64, 69
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(1st Cir. 1991); U.S.S.G. 3E1.1, comment. (n.4). Second,
the district court's finding that Ima's explanation for his
illegal entry was false is not clearly erroneous and,
independent of its materiality for obstruction of justice
purposes, such conduct is inconsistent with acceptance of
responsibility. See United States v. DeFelippis, 950 F.2d
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444, 447 (7th Cir. 1991) (defendant's false characterization
as to his employment status, while not material to the
presentence investigation, evidenced a continuing attempt to
rationalize and minimize his conduct and supported a
rejection of a reduction for acceptance of responsibility).
We summarily affirm. Loc. R. 27.1
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