United States v. Serunjogi

United States Court of Appeals
For the First Circuit
No. 13-2392
UNITED STATES OF AMERICA,
Appellee,
v.
RONALD SERUNJOGI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torreson, U.S. District Judge]
Before
Torruella, Dyk,* and Thompson,
Circuit Judges.
Clifford B. Strike, with whom Strike, Goodwin & O'Brien, was
on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
September 24, 2014
*
Of the Federal Circuit, sitting by designation.
THOMPSON, Circuit Judge. When his friend and countryman
needed a bride to secure his stay in the United States, Ronald
Serunjogi was the best man for the job. But after seeing to this
marriage in haste, Ronald is now repenting at leisure, serving four
months in prison, and one year of supervised release, four months
of which must be spent in home confinement, after a jury found him
guilty of conspiracy to defraud the United States government.
Specifically, Ronald was convicted of conspiring with Samson
Sengoonzi to arrange a sham marriage in order to secure Samson a
change in his immigration status to which he would not otherwise be
entitled.1 On appeal, Ronald argues that the evidence admitted at
trial was insufficient to support his conviction, and that the
district court erred in calculating his sentence. After careful
consideration, we affirm both Ronald's conviction and his sentence.
I.
BACKGROUND
Because Ronald is challenging the sufficiency of the
evidence, we will recite the facts in the light most compatible
with the jury's verdict. See, e.g., United States v. Polanco, 634
F.3d 39, 40 (1st Cir. 2011); United States v. Troy, 618 F.3d 27, 29
(1st Cir. 2010).
1
Rather than risk reader confusion over the similar-sounding
surnames, we will refer to the defendant as Ronald and his co-
conspirator as Samson. No disrespect is intended.
-2-
A. The Wedding Planner
Every wedding needs a planner--someone with experience
who can tend to the details and guide the bride and groom over the
hurdles of their most important day. Ronald is a nurse by
profession, but for his friend Samson, he was a most capable
wedding planner. A native of Uganda, Ronald emigrated to the
United States in 1999 and was issued an Exchange Visitor Visa. In
2002, Ronald settled in California, where he married for the first
time. The marriage ended in divorce in 2003, although the final
decree was not issued until 2006. Ronald then moved to Maine and,
as the ink dried on the decree, married for the second time. That
marriage produced one child before ending in 2011. In 2007, Ronald
had a brief affair with Alice May--a woman who played a bit part in
his romantic history, but would assume a much larger role in this
case. Presently, in what is perhaps a triumph of hope over
experience, Ronald is married to his third wife, Cassandra Linton,
with whom he has a second child.
Ronald met Samson at a party at a friend's house. Like
Ronald, Samson was a native of Uganda; unlike Ronald, Samson's
permission to remain in the United States had expired. As an
"overstay," Samson had a problem; Ronald had the solution--Alice
May.
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B. The Bride Wore Camo
In the summer of 2008, May was, by her own account, not
in a good place. She was "doing a lot of drugs, alcohol, and, at
that time . . . pretty much didn't care" about her life. Although
she testified that her memory of that time was not good, she
recalled having several conversations with Ronald during which he
would "ask if [she] knew anybody that would marry somebody to get
a green card or if [she] would." May initially declined, but
Ronald persisted, raising the topic "[p]retty much every time
[they] talked." According to May, Ronald told her, "Whoever would
marry somebody for a green card would get money."
The would-be bride finally succumbed to Ronald's
importuning. On August 27, 2008, May signed a marriage certificate
at Lewiston City Hall. She testified that she had no recollection
of who was with her at the time, but Samson's signature appears on
the certificate beside that of his bride.2 Five days later, May
received $400 that Samson had wired to her through Western Union.
On October 22, 2008, at Samson's behest, Ronald picked May up at
her home and drove her to the wedding. May testified that she had
been drinking and was dressed "like [she] just was cleaning"; in
fact, she was wearing a camouflage tank top. Ronald drove her to
a private home where a notary public performed the rather spartan
2
The defense stipulated that pursuant to state law, both
parties are required to be present to apply for and receive a valid
marriage license.
-4-
nuptials. The groom wore a suit, but did not provide a ring.
Instead, the couple borrowed a ring from the officiant for Samson
to place on the bride's finger ("something borrowed") and the bride
mimed placing a ring on the groom's finger.
Following the brief ceremony, Ronald drove the bride back
to his house; the groom followed with a friend in a separate car.
While at Ronald's house, May observed Samson as he handed Ronald "a
lot of money." Ronald then gave May $800 or $900 before pocketing
"a good amount" for himself. A short time later, Ronald and Samson
dropped May off at her home. May testified that she did not intend
to actually be married to Samson, nor did she ever live with him.
C. The Newlywed Game
When May became pregnant in September 2009, the father
was not her new husband, but rather, the same man who fathered her
younger child. During her pregnancy, both Samson and Ronald asked
her to sign papers for Samson's green card; initially, she refused.
Finally, on February 24, 2010, after Ronald called her and
explained the relevant paperwork, May signed an I-130 Petition for
Alien Relative. May gave birth in, appropriately enough, May. Six
weeks later, Samson called her and asked her to attend an
appointment in South Portland the following day, in order to secure
his green card. Samson and Ronald picked May up the next morning,
along with her two children. During the ride, Ronald, a veteran of
the process, directed the couple in a rehearsal of what they would
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likely be asked, and what they should say. In particular, they
agreed that if asked what TV show they liked, they would answer
"NCIS." Ronald also pointed out that the presence of May's infant
child of another father "would look bad," and so Ronald remained in
the car with the infant while the couple and May's older child
attended the interview in the immigration office.
Unsurprisingly, the interview did not go well.
Immigration Service Officer Kurt Pelletier questioned the couple
separately. Both May and Samson gave their address as 20 Garfield
Street, Apartment 25--Ronald's address--although both claimed to
live there with May's one child. No mention was made of either the
new baby or Ronald living there. Samson provided a lease to
Pelletier for the Garfield Street apartment, with "Alice Sengoonzi
and Samson Sengoonzi" listed on it. Pelletier asked May and Samson
a series of questions, individually, about their wedding and what
they watched on Saturday night. May forgot her lines and, instead
of NCIS, talked about watching a movie. Samson, on the other hand,
missed his cue; when asked about Saturday night, he said "my
favorite show is NCIS"--a statement that Pelletier felt was not an
answer to the question he had posed. There were other red flags;
according to Pelletier, they gave conflicting answers to several
questions, although they both agreed that they "met through a
friend named Ronald."
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After failing to win over Pelletier in this high-stakes
newlywed game, the couple received not "lovely parting gifts" but
a notice of intent to deny ("NOID"). Having determined that this
was possibly a fraudulent marriage, Pelletier sent the notice to
May at Ronald's Garfield Street address.
D. The Nervous Groom
On July 19, 2010, Samson and Ronald went to the
immigration center to file a rebuttal. Pelletier happened to be
working at the counter that day, and recognized Ronald, whom he had
previously interviewed when Ronald applied for his permanent
residence. According to Pelletier, Ronald "did most of the
talking" and provided Pelletier with several documents: a "proof of
marriage authenticity" purportedly signed by May, a bank statement
from Five County Credit Union in the name of Samson Sengoonzi which
showed a deposit transfer from Ronald for $25,3 and a Liberty
Mutual receipt showing that an insurance agreement was purchased on
behalf of Samson and paid for with Ronald's credit card. Unhappily
for Samson, the documents that were proffered to bolster the
authenticity of his marriage had the opposite effect. After
3
The bank account was opened in Samson's name on June 30,
2010, and May's name was added to the account on July 7, 2010. May
testified that she agreed to add her name to the joint account
because Samson "said that he needed more proof of our marriage."
Notably, Five County Credit Union has a minimum opening deposit
requirement of $25.
-7-
viewing them, Pelletier referred the matter for criminal
investigation.
Pelletier also performed a simple online search and
determined that May had given birth six weeks before the initial
interview, yet she failed to mention anything about that child.
Pelletier sent a second NOID in February 2011. In response to the
second NOID, Pelletier received additional documents, including:
paperwork from Five County Credit Union, insurance coverage, a Time
Warner Cable bill, a W-2 in Samson's name, and a letter dated March
12, 2011, entitled "proof of marriage" that, again, purported to be
signed by Alice G. Sengoonzi. May testified that she did not write
or sign either letter. The immigration office requested another
interview, but Samson cancelled it, claiming that his wife was "out
of state at the moment visiting with the rest of her family in
Alabama." The second interview never occurred.
At some point in 2010 or 2011, Samson gave May a Ford
Explorer. Although she could not recall when she received the
vehicle, May testified that Samson gave it to her because it was
"[p]retty much more money towards . . . the marriage." May further
testified that she received additional money from Samson and Ronald
either through Western Union or personally, but she was unable to
remember the amounts.
After she learned that she was under investigation
regarding the marriage, May cooperated in the investigation and
-8-
signed a plea agreement. In June 2011, after she had begun
cooperating with Agent James Bell of the Department of Homeland
Security, May received a series of text messages that she forwarded
to Bell. The text conversation began on June 10, 2011, when May
missed a phone call on her cell phone. Because the number was
unfamiliar, May texted back "Who this." This exchange followed,
between May's cell phone and a cell phone later determined to
belong to Ronald:
"Its me ronald"
"Who"
"U remember Samson?"
"Ya Im busy"
"Don't need anything but to let u know if
immigra[n]t guys came n ask u if samson gave
you money or car to marry him just say no."
When nearly an hour passed with no response from May, Ronald texted
again:
"U got my text m[e]ss?
"Ya"
"Coz they have been checkin some people if
they were paid. And if u say yes ur put in
jail for 5[]years."
After forwarding these texts to Agent Bell, May agreed to
"wear a wire" to record a conversation between herself and Samson
on June 28, 2011. Although the tape of this conversation was not
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introduced into evidence,4 Bell testified that, during the
recording, May asked Samson, "Why did you have Ronald text me?" and
later, "[S]o you had him text me?"
In February 2012, a superseding indictment was filed
charging Ronald with conspiring "to participate in a sham marriage
for the purpose of defrauding the United States." The indictment
alleged two objects of the conspiracy: (1) "for Samson to acquire
a change of his United States immigration status to which he would
not otherwise have been entitled by falsely representing to
agencies of the United States Government that the marriage into
which Samson entered . . . was bona fide when in fact it was not,"
and (2) "for [May] to profit financially by accepting payments from
co-conspirators, including Samson and Ronald, in exchange for
participating in a sham marriage and helping Samson obtain a change
of immigration status."
A jury trial commenced in April 2013. At the close of
the government's case, and again at the conclusion of the trial,
Ronald moved for judgment of acquittal; both motions were denied.
After a three-day trial, the jury convicted Ronald of conspiracy to
defraud the government. Samson, who had been charged with
conspiracy, document fraud, and making a false statement, pled
guilty to the latter two counts and did not cooperate with the
4
The Assistant U.S. Attorney made a representation that the
tape, which implicated Samson, was not offered into evidence
because it was not relevant to the case against Ronald.
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government, nor testify at Ronald's trial. At his sentencing
hearing, Ronald was given four months in prison and one year of
supervised release, four months of which must be spent in home
confinement. Ronald timely appealed. He raises two main issues
for our consideration.
II.
DISCUSSION
A. Sufficiency of the Evidence
Ronald first argues that the evidence adduced at trial
was insufficient to support his conviction. We review challenges
to the sufficiency of the evidence de novo, "viewing all evidence,
credibility determinations, and reasonable inferences therefrom in
the light most favorable to the verdict, in order to determine
whether the jury rationally could have found that the government
established each element of the charged offense beyond a reasonable
doubt." United States v. Portalla, 496 F.3d 23, 26 (1st Cir. 2007)
(citing United States v. Ossai, 496 F.3d 25, 30 (1st Cir. 2007)).
However, we will not "weigh the evidence or make credibility
judgments; these tasks are solely within the jury's province."
United States v. Hernandez, 218 F.3d 58, 64 (1st Cir. 2000) (citing
United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)).
Ronald was charged under 18 U.S.C. § 371 with conspiracy
"to defraud the United States, or any agency thereof." To prove
that Ronald conspired to defraud the United States, the government
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must establish the existence of an agreement, the unlawful object
of the agreement, and an overt act in furtherance of that
agreement. United States v. Floyd, 740 F.3d 22, 28 (1st Cir.
2014). Here, the unlawful objective of the conspiracy was marriage
fraud. Pursuant to 8 U.S.C. § 1325(c), "Any individual who
knowingly enters into a marriage for the purpose of evading any
provision of the immigration laws shall be imprisoned for not more
than 5 years, or fined not more than $250,000, or both." Finally,
the government must also establish the defendant's knowing
participation in the conspiracy. Floyd, 740 F.3d at 28.
Ronald argues that the government did not offer credible
evidence of the existence of a conspiracy, much less his knowing
and voluntary participation in that conspiracy. Chiefly, he
challenges the credibility of the government's primary witness,
asserting that May's testimony was so rife with inconsistencies
that no rational jury could have credited her account. To support
this argument, Ronald notes that, by May's own admission, her drug
use in 2008 rendered her memory of that time "not good." He
points to her confusion over dates and her inability to remember
whether Samson accompanied her to City Hall as proof that her
testimony is not worthy of belief. While it is clear to us that
May was far from an ideal witness, the very same instances that
Ronald cites demonstrate that a reasonable jury could have found
her to be forthright, even if flawed. As the government's witness,
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rather than testify to events she could not recall, she freely
admitted when she could not remember. Even in an instance where a
fact could readily be established with supporting evidence (i.e.
the visit to City Hall with Samson), and thus she was unlikely to
be challenged on cross-examination, May stuck to her guns and
admitted that she could not remember. Similarly, she did not
recall receiving $400 from Samson in September 2008, and when shown
the Western Union records memorializing that transaction during
cross-examination, the following colloquy took place:
Q: "Did you just happen to forget that
earlier?"
A: "I don't remember having it, no. I don't
remember that."
Q: "You remember it now, though, don't you?"
A: "No, I don't remember fully but it's on
paper so obviously I - - it happened."
A rational jury could perceive that exchange as the testimony of a
person who was being completely honest about what she could and
could not remember, and therefore find her to be credible.
On appeal, Ronald's burden is a heavy one; to prevail, he
must demonstrate that "viewing the evidence and reasonable
inferences in the light most favorable to the prosecution, no
rational jury could have convicted him." Polanco, 634 F.3d at 45.
Because jurors are in the best position to judge a witness's
credibility, sufficiency challenges are a "tough sell." Id. We
will not usurp the jury's role of weighing evidence and making
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credibility judgments; instead, we "must reject only 'those
evidentiary interpretations . . . that are unreasonable,
insupportable, or overly speculative.'" Hernandez, 218 F.3d at 64(quoting United States v. Spinney, 65 F.3d 231, 234 (1st Cir.
1995)). The jury heard from both May and Ronald, and was capable
of weighing their credibility. Indeed, a rational jury could have
credited May's testimony, discounted Ronald's, and determined that
Ronald was a knowing and willing participant in the conspiracy. In
short, we are not sold. We must "uphold any verdict that is
'supported by a plausible rendition of the record.'" Id. at 64
(quoting Ortiz, 966 F.2d at 711)).
Undaunted, Ronald next offers a theory of innocent
explanations for each damaging piece of the government's remaining
evidence. He denies playing any part in arranging and concealing
the sham marriage, and casts a far more benign light on his
actions. According to Ronald, he did all the talking at Samson's
second appearance at the immigration office merely as one friend
helping another. Likewise, the transaction at Five County Credit
Union was a loan from one good friend to another. He implies that
Samson may have stolen his lease at some point when it was left out
on a table. Similarly, although he admits that the incriminating
text messages came from his phone, Ronald proposes that Samson must
have used his phone to send the texts.
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Despite Ronald's innocent explanations for each of these
pieces of evidence, we must focus on the evidence as a whole.
Floyd, 740 F.3d at 30. It is not sufficient to offer "a plausible
theory of innocence . . . because the issue is not whether a jury
rationally could have acquitted but whether it rationally could
have found guilt beyond a reasonable doubt." United States v. Seng
Tan, 674 F.3d 103, 107 (1st Cir. 2012). The jury heard Ronald's
testimony as well as that of May and was entitled to draw its own
inferences and conclusions from all of the evidence presented.
"It suffices if the conclusions that the jury draws from
the evidence, although not inevitable, are reasonable." Floyd, 740
F.3d at 30 (citing United States v. Laboy-Delgado, 84 F.3d 22, 26-
27 (1st Cir. 1996)). Our review of the record persuades us that,
when viewed in the light most favorable to the verdict, the
evidence was sufficient for a rational jury to conclude that Ronald
had knowingly and voluntarily entered into an agreement with Samson
and May to facilitate a sham marriage in order to provide a green
card for Samson and cash for May, and that the trio undertook
several overt acts in furtherance of that agreement. Ronald,
remember, had approached May on more than one occasion asking if
she or anyone she knew "would marry someone to get a green card."
He picked May up, at Samson's request, and drove her to the
wedding. Following the ceremony, he accepted cash from Samson,
gave May her cut, and pocketed the rest. His role didn't end
-15-
there; after the wedding, Ronald coached the couple in how to
deceive the immigration officials. No wedding planner could have
done more. These overt acts are more than sufficient for a jury to
conclude that Ronald conspired to defraud the government.
B. Sentence
Ronald also challenges the sentence imposed by the
district court. Following the verdict, the probation department
prepared a Presentence Investigation Report ("PSI"). The report
noted that Ronald had a difficult start in life: his father was
killed by the Idi Amin regime when he was two years old, and his
mother thereafter worked long hours to support him and his eight
siblings. Several of those siblings have since died of AIDS,
leaving behind a number of children whom Ronald helps to support.
Since emigrating, Ronald earned a nursing degree and worked in
several healthcare settings, most recently as a Licensed Practical
Nurse. He has no criminal history and no history of substance
abuse or mental illness.
A disposition hearing was convened on September 30, 2013,
and continued on October 25, 2013. After reviewing the PSI, the
court calculated the guideline sentencing range ("GSR"). Since
Ronald was convicted of violating 18 U.S.C. § 371, a base level of
11 applied. See U.S.S.G. §§ 2X1.1, 2L2.1(a). Because the court
found that Ronald was "an organizer or facilitator of the offense"
pursuant to U.S.S.G. § 3B1.1(c), two points were added, bringing
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the adjusted offense level to 13. The government's recommendation
of a further enhancement for obstruction of justice was rejected.
Ronald's request for downward adjustments because the offense was
not committed for profit and because the conspiracy was not
completed were similarly rejected.
These calculations yielded a GSR of 12 to 18 months.
After noting that Ronald was "a very hard worker," "a good
provider," and a "good and generous friend," the court recognized
that Ronald was "too good of a friend, and that in order to help
[his] fellow countryman, [Ronald] broke the laws of this country."
The court imposed a sentence of four months in prison and one year
of supervised release, four months of which would be served in home
confinement.
Before us, Ronald contends that the district court erred
by not applying U.S.S.G. § 2L2.1(b)(1), which allows for a three-
level deduction "[i]f the offense was committed other than for
profit." Had this guideline been properly applied, he argues, his
base offense level would have been 8 rather than 11. Ronald also
says that he was entitled to an additional three-level deduction
under U.S.S.G. § 2X1.1(b)(2) because he and Samson "failed to
complete all the acts necessary for the successful completion of
the substantive offense," reducing his base offense level to 5.
Before we address Ronald's arguments, we must first determine
whether there is a live case or controversy sufficient to invoke
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the jurisdiction of this Court. See United States v. Duclos, 382
F.3d 62, 65 (1st Cir. 2004).
1. Mootness
The government contends that Ronald's appeal of his
sentencing is moot, because he was released from custody in May
2014. However, Ronald may still be serving four months of home
confinement and assuredly faces a year of supervised release. For
us to have subject-matter jurisdiction, Ronald "must have
'suffered, or be threatened with, an actual injury traceable to
[the government] and likely to be redressed by a favorable judicial
decision.'" United States v. Rene E., 583 F.3d 8, 19 (1st Cir.
2000)(quoting Duclos, 382 F.3d at 65). Ronald's one year of
supervised release, as a restriction of his personal freedom, is an
injury that would be redressed were he to prevail in this appeal.
See, e.g., United States v. Weikert, 504 F.3d 1, 12 (1st Cir. 2007)
(holding that an individual on supervised release has "a
substantially diminished expectation of privacy"). Accordingly,
the sentencing issue is not moot.
2. Reasonableness
"We review criminal sentences for reasonableness, using
an abuse of discretion standard." United States v. Leahy, 668 F.3d
18, 21 (1st Cir. 2012) (citing Gall v. United States, 552 U.S. 38,
46 (2007)). This review is bifurcated; "we first determine whether
the sentence imposed is procedurally reasonable and then determine
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whether it is substantively reasonable." Id. (quoting United
States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011)). Ronald
challenges the calculation of his GSR, which appears to be a
procedural argument. Accordingly, we will review Ronald's sentence
for procedural reasonableness.
For a sentence to be procedurally reasonable, the
district court must have properly calculated the GSR. See United
States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)(explaining that
procedural errors include: "failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence-including an explanation for any
deviation from the Guidelines range"). When assessing procedural
reasonableness, our abuse of discretion standard is multifaceted.
Leahy, 668 F.3d at 21. "[W]e review factual findings for clear
error, arguments that the sentencing court erred in interpreting or
applying the guidelines de novo, and judgment calls for abuse of
discretion simpliciter." Id. (citations omitted).
Sentencing judges are urged to "follow a specifically
delineated roadmap when sentencing under the now-advisory federal
sentencing guidelines." United States v. Madera-Ortiz, 637 F.3d
26, 29 (1st Cir. 2011) (quoting United States v. Dávila-González,
595 F.3d 42, 46 (1st Cir. 2010)). The first step on this road is
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to establish the GSR, before moving on to consider the
appropriateness of departures and weighing the sentencing factors
enumerated in 18 U.S.C. § 3553(a) along with any other relevant
considerations. Id. at 29-30 (citing United States v. Pelletier,
469 F.3d 194, 203 (1st Cir. 2006)). "The purpose of this exercise
is to ensure that the sentence imposed will be the product of the
district court's individualized and fact-intensive decision
making." Id. at 30 (citing Martin, 520 F.3d at 92).
The defendant bears the burden of proving by a
preponderance of the evidence that he is entitled to a downward
adjustment of the base offense level. United States v. Sachdev,
279 F.3d 25, 27 (1st Cir. 2002) (citing United States v. Rizzo, 121
F.3d 794, 801 (1st Cir. 1997)). The district court held that
Ronald failed to meet his burden of proving that the offense was
not committed for profit. Our review of the transcripts of the
disposition hearings reveals that, in arriving at the GSR, the
court took great pains to consider and address Ronald's arguments.
Although the parties agree that the base offense level was
correctly set at 11, Ronald contends that he was entitled to two
separate deductions from that level because the offense was not
committed for profit, and was not substantially completed.
After hearing arguments, the sentencing judge made
specific findings of fact. She reviewed May's testimony that
Samson handed Ronald a large amount of cash, and that Ronald gave
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her a portion of the money and pocketed the rest. Although
evidence did not establish the precise amount of money, and Ronald
argued that the amount he took was merely used to defray expenses,
the court was unconvinced. Further, the court found that May
profited by the offense and because Ronald aided and abetted the
conduct, he was also responsible for the profit.
The court also found that the substantive offense,
defrauding the government, was substantially completed because the
marriage took place, the immigration interview was completed, and
Ronald and Samson had sent in all of the paperwork they were using
to try to establish the validity of the marriage. In short, there
was nothing left to do but wait and hope that the immigration
authorities would be duped. Again, the court determined that
Ronald had failed to meet his burden, holding that he was not
entitled to a decrease under U.S.S.G. 2X1.1.
With due deference to the district court's "unique coign
of vantage and the deferential standard of review," we find no
clear error in the court's findings. Leahy, 668 F.3d at 23(quoting United States v. Gobbi, 471 F.3d 302, 315 (1st Cir.
2006)). Neither can we quibble with the court's interpretation or
application of the guidelines. There was ample evidence that both
Ronald and May received cash following the sham marriage; it is
immaterial precisely how much money Ronald received.
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The question of whether the offense was substantially
completed is a judgment call, there being no suggestion that there
was any further act to perform to successfully defraud the
government. The phony nuptials had taken place, and fake documents
had been submitted to a government agency by Ronald and Samson.
They were thwarted only when the immigration authorities were
unpersuaded by the proffered documents and launched the
investigation that led to Ronald's conviction. "It is the nearness
of the crime to achievement--not the precise nature of the
involuntary interruption--that defeats the reduction available for
conspiracies and attempts that have not progressed very far."
United States v. Chapdelaine, 989 F.2d 28, 36 (1st Cir. 1993)
(holding that a defendant who had equipped himself for a robbery
and arrived at the designated location, only to be thwarted by the
untimely departure of the targeted armored truck, was not entitled
to a reduction under U.S.S.G. 2X1.1(b)). We have little doubt
that, had the immigration authorities accepted the story that the
happy couple lived together and shared a joint account, the fraud
would be complete. As previously stated, we review judgment calls
for abuse of discretion, and we discern none here; the sentence was
procedurally reasonable.
To the extent that Ronald may question the substantive
reasonableness of his sentence, we note that the sentencing judge
recognized her duty to "impose a sentence that is sufficient but
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not greater than necessary to reflect the seriousness of the
offense, to promote respect for the law, to provide just punishment
for the crime, to afford adequate deterrence, and to protect the
public." She weighed Ronald's background and work ethic before
setting a sentence that was well within the 12 to 18 month range of
the GSR. The district court having taken all relevant factors into
account, we will not second-guess the sentence imposed.
CONCLUSION
For the reasons set out at length above, we are
unconvinced by each of Ronald's arguments. Ronald's conviction and
sentence are AFFIRMED.
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