United States v. Biyaga

• Court: Court of Appeals for the First Circuit
• Decided: November 17, 1993
• Docket: 93-1386
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-1386

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                     JACK BIYAGA,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                                Boudin, Circuit Judge,
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                         and Pollak,* Senior District Judge.
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            James S. Dilday, by Appointment of  the Court, with whom  Grayer &
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        Dilday was on brief for appellant.
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            Timothy Q. Feeley, Assistant United States Attorney,  with whom A.
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        John Pappalardo, United States Attorney, was on brief for appellee.
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                                  November 17, 1993
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        *Of the Eastern District of Pennsylvania, sitting by designation.

POLLAK,  District Judge.   Jack  Biyaga  pled guilty  in the
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             United   States   District  Court   for   the  District   of

             Massachusetts to one count of bank robbery brought under  18

             U.S.C.   2113(a).  On February 24, 1993, he was sentenced to

             41  months of incarceration to be  followed by a conditional

             period  of  supervised   release.    Before  sentencing,   a

             probation   officer   interviewed   Biyaga  to   prepare   a

             presentence report.   Biyaga told  the officer that  (1) his

             name  was Jacques  Bonato Biyaga,  (2)  he was  born in  St.

             Thomas,  U.S. Virgin  Islands, and  (3)  he was  an American

             citizen.   He had previously  averred the same facts  to the

             magistrate judge during his bail hearing.  Unable to  verify

             Biyaga's  information,  the   probation  officer  confronted

             defendant in the presence of counsel.  Biyaga  then admitted

             that  (1) his real name  was Jacques Bonaventure Biyaga, (2)

             he was born in Mbanga,  Cameroun, and (3) he was  an illegal

             alien.     Because   of  Biyaga's   false   statements,  the

             presentence  report enhanced his offense level by two points

             for obstruction of justice pursuant to U.S.S.G.   3C1.1.1

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             1U.S.S.G.    3C1.1 (1992)  directs the  sentencing judge  to
             increase  the  Guidelines  offense level  by  two  "[i]f the
             defendant willfully  impeded or obstructed,  or attempted to
             impede or obstruct, the administration of justice during the
             investigation,  prosecution, or  sentencing  of the  instant
             offense."

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At  his sentencing hearing, Biyaga objected to the two-point

             enhancement.   The district court acknowledged that Biyaga's

             falsity was not relevant to the elements of the bank robbery

             offense with  which Biyaga  was charged,  but held  that the

             enhancement  was  warranted "because  the  misrepresentation

             that the defendant is an American citizen born in the Virgin

             Islands  is  material  to the  sentencing  decision  in this

             case."   On appeal  Biyaga argues  that  the district  court

             erred  in imposing  the two-point increase  because Biyaga's

             misrepresentation  did not relate  to the count  on which he

             was charged, and therefore was not material under U.S.S.G.  

             3C1.1.   On  review, we  conclude that  the judgment  of the

             district court should be affirmed.

Discussion  
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                       As a threshold matter, we find that under U.S.S.G

               3C1.1 false information need not relate to the underlying

             charge to be material.  As amended in 1992,   3C1.1 states

             that a judge shall increase the offense level by two "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
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             offense."  (Emphasis added.)  The guideline thus clearly

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allows sentencing judges to enhance penalties for material

             falsehoods relevant to sentencing.

                       We further find that sentencing judges have broad

             discretion in deciding whether a falsehood is material. 

             Materiality is a determination by the sentencing judge that

             we review only for clear error.  United States v. Pineda,
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             981 F.2d 569, 572 (1st Cir. 1992) (clear error standard

             applies whether district court's finding based on factual

             determination or application of sentencing guidelines).  In

             this case the question of materiality is framed by

             application note 3 of U.S.S.G. 3C1.1, which provides a non-

             exhaustive list of examples of the types of conduct to which

             the obstruction of justice enhancement applies.  Example

             3(h) is "providing materially false information to a

             probation officer in respect to a presentence or other

             investigation for the court".  We have held that "the test

             of materiality for purposes of Application Note 3(h) is not

             a stringent one."  United States v. St. Cyr, 977 F.2d 698,
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             705 (1st Cir. 1992).  Appellant therefore bears a heavy

             burden in trying to show that the district judge erred in

             applying   3C1.1.

                       Biyaga tries to meet this burden by citing two

             cases in which courts of appeal have found

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misrepresentations not to be material under the guidelines:

             United States v. Tabares, 951 F.2d 405, 411 (1st Cir. 1991)
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             (fake social security number not material), and United
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             States v. Belletiere, 971 F.2d 961, 968 (3rd Cir. 1992)
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             (lying about prior drug use not material).  Yet each of

             those cases made clear that materiality is a case-by-case

             issue, and that identical falsehoods could be material

             elsewhere.  Belletiere, 971 F.2d at 968 ("misstatement was
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             not material to the probation officer's investigation in
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             this particular case) (emphasis added); Tabares, 951 F.2d at
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             411 ("however material [the false statement] might have been

             in some other case, it does not seem 'material' in this

             one").  Thus, the question to be addressed is whether, in

             the case at bar, the defendant's statements could have

             interfered with the district judge's proper carrying out of

             the sentencing function had the falsity of those statements

             not been discovered.

                       The district judge explained that in this case the

             false statements were material because it was his practice

             when sentencing an illegal alien to suspend supervised

             release from the time the defendant is deported until, and

             if, he returns to the United States.  The judge explained

             that when a defendant is deported there is (1) no way for

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the defendant to comply with his release requirements, and

             (2) no way for the supervisor to supervise.  

                       On appeal Biyaga contends that the court can have

             no reasonable concern about supervising someone not on

             American soil, so a falsehood affecting whether a period of

             supervised release is suspended cannot be considered

             material.  Biyaga's argument falls short.  The judge stated

             a connection between citizenship and the discretionary

             sentencing decision of whether to suspend supervised

             release.  By definition, then, Biyaga's falsehood involved

             information material to sentencing.  Biyaga is also

             incorrect that the district judge's sentencing practice is

             irrational.  The judge's explanation indicates a reasonable

             concern that, in the event a defendant returns to the United

             States after deportation, he then be subject to the full

             period of supervised release.  It was clearly within the

             district court's discretion to find appellant's

             misrepresentation as to citizenship to be material in this

             case.2  
                                 
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             2We  note that Biyaga's sentence is supportable elsewhere in
             the record.   Biyaga lied about his citizenship  not only to
             the  probation officer,  but also  to  the magistrate  judge
             during his bail hearing.   Application note 3(f) to U.S.S.G.
                3C1.1 suggests  the two-point  enhancement for  providing
             materially  false information to a judge  or magistrate.  As
             citizenship  is  material  to the  issue  of  bail, Biyaga's

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For the foregoing reasons, the judgment of the

             district court is affirmed.
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             misrepresentation   to  the   magistrate   judge  fits   the
             definition  of obstruction of  justice under  section 3C1.1.
             Although  the district  judge never  reached  this issue  in
             overruling  Biyaga's objection  to  the enhancement,  we may
             affirm  on any  grounds supported  by the  record.   U.S. v.
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             Arias-Santana, 964 F.2d 1262, 1264 (1st Cir. 1992);  U.S. v.
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             Mendoza-Acevedo, 950 F.2d 1, 3 (1st Cir. 1991).  
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