UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-1619
UNITED STATES OF AMERICA,
Appellee,
v.
CHARLES E. EMERY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Selya, Circuit Judge,
Friedman,* Senior Circuit Judge,
and Cyr, Circuit Judge.
Robert A. Costantino for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Richard S. Cohen, United States Attorney, and Raymond
C. Hurley, Assistant United States Attorney, were on brief, for
appellee.
April 28, 1993
*Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. This sentencing appeal presents SELYA, Circuit Judge.
two issues for our determination.1 We must consider (1) whether
an attempted escape from state custody prior to the initiation of
a federal investigation into the offense of conviction can serve
as a basis for enhancing a defendant's sentence under the
obstruction-of-justice guideline, U.S.S.G. 3C1.1; and (2)
whether the facts at bar justify a substantial upward departure
from the guideline sentencing range (GSR). Finding both the
enhancement and the departure to be lawful, we affirm.
I. BACKGROUND
Defendant-appellant Charles E. Emery met Thomas H.
Schmoock when the two men were serving overlapping sentences at
the state penitentiary in Thomaston, Maine. Appellant was
released in late April of 1991 and Schmoock went free a few weeks
later. On May 28, 1991, the pair began executing a complex
check-kiting scheme.
In the scheme's preliminary stage, one of the culprits
posed as an agent of the Internal Revenue Service (IRS) and
solicited information from an unsuspecting dupe, one Thomas E.
Mitchell. Emery and Schmoock used this information to procure a
copy of Mitchell's birth certificate; they used the birth
certificate to obtain a driver's license bearing Mitchell's name
but Emery's photograph; and they used the license to open several
1Except where otherwise indicated, all references are to the November, 1991 edition of the guidelines, which were in effect at the time of sentencing. See, e.g., United States v. Harotunian,
920 F.2d 1040, 1041-42 (1st Cir. 1990).
checking accounts in Mitchell's name at federally insured banks
in Maine and Massachusetts.
In the scheme's second phase, Emery deposited a number
of forged checks drawn on funds of Lisa and David Holt into the
newly opened accounts.2 He and Schmoock then began kiting checks
in escalating amounts among the three bogus Mitchell accounts.
Fortunately, bank officials soon caught the scent. On June 6,
1991, officers of the Sanford, Maine police department arrested
both men. They promptly attempted to escape from the county
jail, but their escape attempt was no more successful than their
check-kiting swindle.
Although no federal investigation had been mounted to
this point, one followed shortly. On November 21, 1991, a
federal grand jury indicted appellant on a gallimaufry of
charges. He pleaded guilty to impersonation of an IRS agent and
bank fraud. See 18 U.S.C. 912, 1344 (1988 & Supp. II 1990).
At sentencing, the court set the base offense level (BOL) at six,
see U.S.S.G. 2F1.1 (establishing BOL for bank fraud),3 raised
it seven levels because of the dollars in issue, see U.S.S.G.
2F1.1(b)(1)(H) (providing for a seven-level increase if fraud
involves $120,000 or more but less than $200,000), added two
levels because the crime required more than minimal planning, see
2The checks, bearing the imprimatur of a New Hampshire bank, were blank when stolen from the Holts' home several days earlier.
3Because the impersonation count carried the same BOL, see
U.S.S.G. 2J1.4, it became irrelevant to establishing the offense level in this multiple-count case. See id.
2J1.4(c)(1).
U.S.S.G. 2F1.1(b)(2)(A), added two more levels for obstruction
of justice, see U.S.S.G. 3C1.1, and subtracted two levels for
acceptance of responsibility, see U.S.S.G. 3E1.1. Appellant's
adjusted offense level was, therefore, fifteen.
Under the guidelines, the GSR is determined by plotting
the intersection of two lines: the adjusted offense level and
the defendant's criminal history category (CHC). The CHC is
measured in terms of assigned criminal history points; it ranges
from I (for a person with fewer than two criminal history points)
to VI (for a person with thirteen points or more). See U.S.S.G.
Ch.5, Pt.A (sentencing table). Appellant sported an extensive
criminal history involving an assortment of violent felonies and,
more recently, some less serious peccadillos. His score of
twenty criminal history points surpassed the thirteen points
needed to place him in CHC VI. The GSR was, therefore, forty-one
to fifty- one months. See id. (offense level 15; CHC VI).
Abjuring a sentence within the GSR the district judge departed
upward, imposing an incarcerative sentence of seventy-two months.
In this appeal, appellant bemoans both the obstruction-
of-justice enhancement and the upward departure. We address each
lamentation in turn.
II. OBSTRUCTION OF JUSTICE
Appellant does not challenge the factual basis on which
the district court found an obstruction of justice the
probation officer's report, credited by the district court, made
manifest appellant's attempt to escape from official custody
but, instead, posits that conduct otherwise sufficient to
constitute an obstruction of justice under the federal sentencing
guidelines an attempted escape is inoculated against such use
if it occurs prior to the initiation of a federal investigation.
The government seeks to rebut this theorem in three ways. It
avers that the appellant failed properly to preserve the point,
that the decision to depart rendered the obstruction-of-justice
enhancement moot, and that, in any event, the court below acted
within its lawful authority in decreeing the enhancement. We
elect to analyze the point in terms of the prosecution's last two
rebuttal arguments.4
A. Mootness.
We reject the government's asseveration that the upward
departure renders the obstruction-of-justice adjustment moot.
Had the district court eschewed the disputed adjustment, the GSR
would have been thirty-three to forty-one months. See U.S.S.G.
Ch.5, Pt.A (sentencing table) (offense level 13; CHC VI). When
an adjustment in the offense level increases the top end of the
GSR, and an unguided upward departure ensues, the adjustment, at
least potentially, has more than an academic effect on the actual
4We waste no time in regard to the prosecution's attempt to conjure up a procedural default. Its reasoning in this respect is premised largely on an extemporaneous suggestion by the Assistant United States Attorney during the sentencing hearing to the effect that the federal probe might have started before the date of the attempted escape a comment which went unanswered by defense counsel. Having read the record carefully, we are convinced that the government's waiver claim cannot withstand the most mild scrutiny. Appellant fully preserved the "no ongoing federal investigation" point.
sentence because the proportionality of the departure to the GSR
is a salient factor to be considered in judging the departure's
reasonableness. See United States v. Ocasio, 914 F.2d 330, 337-
38 (1st Cir. 1990). Accordingly, we rule that a decision to
depart does not, as a general rule, render moot questions
concerning the appropriateness of the calculations underbracing
the district court's computation of the GSR. See United States
v. Mondaine, 956 F.2d 939, 943 (10th Cir. 1992) (holding that a
district court's downward departure under section 4A1.3 did not
moot the defendant's argument that he was entitled to a downward
adjustment in the BOL). Consequently, the adjustment is zoetic,
not moot; and the defendant has standing to protest it in this
appeal.5
B. The Enhancement.
We turn now to the enhancement itself. We do so
mindful that in cases where, as here, an objection to a guideline
enhancement raises a pure question of law, appellate review is
plenary. See United States v. St. Cyr, 977 F.2d 698, 701 (1st
Cir. 1992); United States v. Bell, 953 F.2d 6, 7 (1st Cir. 1992).
We begin with the language of the relevant guideline.
It requires sentencing courts to jack up a defendant's offense
5We recognize, of course, that if the attempted escape from state custody could not furnish a legally cognizable basis for a section 3C1.1 adjustment, it might then furnish a springboard for departing upward. Nevertheless, we are unprepared to say, absent an express statement by the district court, that if appellant's legal argument foreclosed the two-level enhancement, the court would simply have compensated for its inability to ratchet up the offense level by boosting the ultimate departure sentence to a corresponding degree.
level 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." U.S.S.G. 3C1.1. The commentary to the
guideline makes clear that "escaping or attempting to escape from
custody before trial or sentencing" falls within the definition
of obstructive or impeding conduct. U.S.S.G. 3C1.1, comment.
(n.3(e)). The case law is in the same vein. See United States
v. Amos, 984 F.2d 1067, 1072 (10th Cir. 1993); United States v.
Melton, 970 F.2d 1328, 1335 (4th Cir. 1992).
The slightly more difficult task is defining when
conduct can be said to have occurred "during the investigation .
. . of the instant offense." Appellant theorizes that a
suspect's conduct, no matter how deplorable, cannot obstruct a
non-existent investigation, and that, therefore, if no federal
probe has begun, there can be no obstruction within the
guideline's reach. This argument has a certain superficial
allure, especially because the inclusion of the term "the instant
offense" in section 3C1.1 indicates that there must be some link
between the obstruction and the federal crime for which the
affected defendant is to be sentenced. See generally United
States v. Yates, 973 F.2d 1, 4-5 (1st Cir. 1992).
Be that as it may, several different reasons lead us to
conclude that appellant's argument cannot prevail. In the first
place, the guidelines should be read in a common-sense way.
Doing so here strongly suggests that the provision may be
triggered if, notwithstanding the lack of an ongoing federal
investigation, there is a close connection between the
obstructive conduct and the offense of conviction. In this case,
the connection is skin tight: the behavior underlying
appellant's arrest by local gendarmes using false documents to
open a series of bank accounts and withdraw funds to which he had
no lawful claim is the very essence of the offense for which
the district court sentenced him. Since appellant willfully
sought to avoid the consequences of his felonious conduct, it
would be passing strange to reward him merely because he managed
to engineer his attempted escape just before the federal
investigation formally began.
We also believe it is important that appellant's escape
attempt would likely have weighed against him in the pre-
guidelines world. See, e.g., United States v. Fox, 889 F.2d 357,
360-61 (1st Cir. 1989) (explaining that "relevant conduct," such
as that occurring in the course of attempting to avoid detection
or responsibility for an offense, is the sort of conduct "that
courts typically took into account when sentencing prior to the
Guidelines' enactment") (citation and internal quotation marks
omitted); see also United States v. Wise, 976 F.2d 393, 398-99
(8th Cir. 1992) (en banc), cert. denied, 113 S. Ct. 1592 (1993).
We have often recognized that pre-guidelines precedent can have a
definite role in resolving interpretive questions under the
guidelines. See, e.g., United States v. Blanco, 888 F.2d 907,
910 (1st Cir. 1989) (acknowledging that adjustment provisions
represent the Sentencing Commission's attempt to tie punishment
to real, rather than charged, conduct, and indicate the
Commission's recognition of the "desirability of emulating
typical pre-Guidelines practice" in this respect). We think this
principle has pertinence in the situation at hand: there is no
reason to assume that the Sentencing Commission intended to
supplant the long-settled praxis of awarding stiffer sentences to
those who defy official custody.
In the third place, the case law supports the district
court's action. The Ninth Circuit has held squarely that
obstructive conduct engaged in during an ongoing state
investigation but prior to the formal initiation of a federal
probe can form the basis of an enhancement under section 3C1.1.
See United States v. Lato, 934 F.2d 1080, 1082-83 (9th Cir.),
cert. denied, 112 S. Ct. 271 (1991). A number of other courts
have apparently adopted this view sub silentio, upholding
obstruction-of-justice enhancements despite the fact that only a
state or local indagation was underway at the time of the
enhancement-producing event. See, e.g., United States v. Dortch,
923 F.2d 629, 632 (8th Cir. 1991); United States v. Rogers, 917
F.2d 165, 168 (5th Cir. 1990) (per curiam), cert. denied, 111 S.
Ct. 1318 (1991); United States v. Roberson, 872 F.2d 597, 609-10
(5th Cir.), cert. denied, 493 U.S. 861 (1989).
Finally, the commentary to the guidelines is hospitable
to the conclusion that we reach today. It refers to attempting
escape "from custody," misleading "a law enforcement officer" and
obstructing "an official investigation," U.S.S.G. 3C1.1,
comment. (n.3), without any limitation to federal custody,
federal officers, or official federal investigations. We think
that the Sentencing Commission's repeated employment of generic,
all-encompassing terms is a telltale, indicating how section
3C1.1 should be construed. Cf. United States v. Fiore, 983 F.2d
1, 2 (1st Cir. 1992) (discussing degree of deference due to
Sentencing Commission's view of a guideline provision), cert.
denied, S. Ct. (1993); United States v. Weston, 960 F.2d
212, 219 (1st Cir. 1992) (explaining that application notes and
commentary "are important interpretive aids, entitled to
considerable respect").
In sum, the 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. Dunnigan, 113 S. Ct. 1111, 1118 (1993). The
threat that a defendant poses is not lessened by the happenstance
of fleeing state rather than federal custody, nor is the
defendant's claim to leniency strengthened by that happenstance.
Thus, consistent with the Dunnigan Court's rationale, the
Sentencing Commission's discernible intent, a traditionalist
approach to sentencing, and the weight of authority, we hold that
so long as some official investigation is underway at the time of
the obstructive conduct, the absence of a federal investigation
is not an absolute bar to the imposition of a section 3C1.1
enhancement.6 The instant case falls comfortably within the
zone in which such an enhancement is permissible.
III. THE UPWARD DEPARTURE
The second arrow in appellant's quiver targets the
upward departure. We examine such departures within the
tripartite framework erected in United States v. Diaz-Villafane,
874 F.2d 43, 49-50 (1st Cir.), cert. denied, 493 U.S. 862 (1989).
We first review de novo whether the circumstances relied upon by
the sentencing court are, as a legal matter, sufficient to
justify a departure; we then apply clear-error oversight to
determine whether these circumstances, if conceptually proper,
actually exist in the particular case; and, finally, we review
the direction and degree of the departure for reasonableness.
See id. at 49; see also United States v. Trinidad-Lopez, 979 F.2d
249, 252 (1st Cir. 1992); Unite States v. Brown, 899 F.2d 94, 96-
97 (1st Cir. 1990).
Explicitly conceding that the first two prongs of this
test are satisfied here, appellant assails the departure's
6We are aware that one court has held that an obstruction- of-justice adjustment may lie even if no investigation federal, state, or local is in progress. See United States v. Barry,
938 F.2d 1327, 1334-35 (D.C. Cir. 1991). Although we need not reach this question, we view Barry's continued vitality with some
skepticism. For one thing, amendments to the commentary have deleted much of the language relied upon by the Barry court. See
U.S.S.G. App. C at amend. 347. For another thing, the text of the obstruction section, on its face, seems to require that some investigation be underway. See U.S.S.G. 3C1.1; see also United
States v Kirkland, 985 F.2d 535, 537-38 (11th Cir. 1993); United
States v. Luna, 909 F.2d 119, 120 (5th Cir. 1990) (per curiam).
magnitude. He contends that the district court failed
sufficiently to justify the degree of its departure and that the
sentence imposed is beyond the bounds of reasonableness. His
contentions are insubstantial.
A. Stating Reasons.
It is true that a sentencing court must provide a
statement of the reasons undergirding a departure from the GSR.
See 18 U.S.C. 3553(c) (1988). Here, however, the lower court
honored the statutory imperative, furnishing three specific
reasons for the departure. It found that (1) there was a great
likelihood of recidivism,7 (2) appellant's record included
several offenses for which he had received no criminal history
points, yet, even so, his criminal history score far outstripped
what was necessary to place him in CHC VI, and (3) appellant's
record also revealed sentences of substantially more than one
year imposed as a result of independent crimes committed on
different occasions. Once the court gave so precise a statement
7Appellant's offhand suggestion that the district court lacked a factual basis for this conclusion is jejune. The court supportably found that appellant began planning the offense of conviction while still in prison and embarked upon it "almost immediately upon release." The court could reasonably have believed that so brief an interval between being a prisoner and implementing a sophisticated crime was a fair indication, under all the circumstances, that recidivism was a highly likely eventuality. We discern no clear error in this finding.
of reasons, the statute was satisfied.8 We do not think that a
district court must dissect its departure decision, explaining in
mathematical or pseudo-mathematical terms each microscopic choice
made in arriving at the precise sentence. See United States v.
Aymelek, 926 F.2d 64, 70 (1st Cir. 1991); Ocasio, 914 F.2d at
336. To impose such a requirement under the guise of procedural
reasonableness would simply add a layer of unnecessary formality
to the departure equation.9 We flatly reject so auxetic a
notion, preferring to regard reasonableness as "a concept, not a
constant." Ocasio, 914 F.2d at 336.
Let us be perfectly clear. Under the guidelines,
8We note in passing that each of the three circumstances identified by the court below comprises a permissible basis for an upward departure. To illustrate, a sentencing court may consider departing when the CHC "does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." U.S.S.G. 4A1.3. Among the items of "reliable information" that may indicate the presence of such a situation are the existence of "prior sentence(s) not used in computing the criminal history category" and "prior sentence(s) of substantially more than one year imposed as a result of independent crimes committed on different occasions." U.S.S.G. 4A1.3(a), (b).
9Of course, we speak in terms of unguided departures.
Section 4A1.3, as it stood at the time appellant was sentenced, offered no guidance as to the extent of an upward departure based on the criminal history of a defendant in CHC VI. See Aymelek,
926 F.2d at 70; Ocasio, 914 F.2d at 336 n.4. The operative
guideline has since been amended to indicate that, when a sentencing court seeks to depart upward from CHC VI, it "should structure the departure by moving incrementally down the sentencing table to the next higher offense level in Criminal History Category VI until it finds a guideline range appropriate to the case." U.S.S.G. 4A1.3 (Nov. 1992); U.S.S.G. App. C at amend. 460. However, appellant does not suggest that the district court should have followed this particular methodology in applying the pre-amendment version of section 4A1.3. Hence, we do not consider the question.
upward departures carry with them a certain burden to explicate
the decisionmaking process. See Aymelek, 926 F.2d at 70
(observing that a sentencing court must clearly articulate
reasons for the scope of the departure). But when the court has
provided a reasoned justification for its decision to depart, and
that statement constitutes an adequate summary from which an
appellate tribunal can gauge the reasonableness of the
departure's extent, it has no obligation to go further and
attempt to quantify the impact of each incremental factor on the
departure sentence. See id. (ruling that, in reference to
unguided departures, "a sentencing court need not resort at all
to analogies"); Diaz-Villafane, 874 F.2d at 51-52 (questioning
the wisdom of allowing unguided departure decisions to become
mere "matter[s] of arithmetic" or products of "mechanistic bean-
counting").10 Here, the sentencing court's articulated
grounds for departing permit us adequately to assess the
reasonableness of the departure sentence. No more is exigible.
See Williams v. United States, 112 S. Ct. 1112, 1121 (1992)
(stating that in gauging the reasonableness of a departure, a
10While this circuit has explicitly refused to subject the concept of reasonableness to formulaic constraints, some other circuits have mandated a more mechanical approach to unguided departures. See, e.g., United States v. Thomas, 930 F.2d 526,
531 (7th Cir.) ("The sentencing judge is . . . required to articulate the specific factors justifying the extent of his departure and to adjust the defendant's sentence by utilizing an incremental process that quantifies the impact of the factors considered by the court on defendant's sentence."), cert. denied,
112 S. Ct. 171 (1991); United States v. Lira-Barraza, 941 F.2d
745, 748-50 (9th Cir. 1991) (en banc) (similar). With due respect for this difference of opinion, we adhere to our circuit precedent.
reviewing tribunal must "look[] to the amount and extent of the
departure in light of the grounds for departing" and to the
purposes of sentencing).
B. Reasonableness.
We move now to a consideration of the reasonableness
vel non of the departure. In this case, the district court hiked
appellant's sentence by twenty-one months, an increase of
approximately 41% over the GSR's ceiling. Considering the
seriousness of appellant's past criminal conduct, the extent to
which his criminal history score exceeded that required for
membership in CHC VI, and the court's supportable finding anent
likely recidivism, we cannot say that the magnitude of this
departure is unreasonable. See, e.g., Brown, 899 F.2d at 96-97
(upholding as reasonable a twelve-month upward departure
representing a 133% increase over the GSR's ceiling); Diaz-
Villafane, 874 F.2d at 51-52 (upholding as reasonable an eighty-
seven month upward departure representing a 264% increase over
the GSR's top end); see also Ocasio, 914 F.2d at 337 (identifying
factors to be considered in reasonableness review).
Appellant's contention that the court below acted
unreasonably because it failed adequately to consider mitigating
circumstances, namely, the chronological sequence and declining
severity of his previous convictions, is utterly unconvincing.
At the sentencing hearing, defense counsel urged the court not to
depart because many of Emery's violent crimes took place in his
youth. The court explicitly responded to this exhortation,
stating: "it is true that there has been some sort of hiatus in
the seriousness of the criminal activity, but there is clearly
reason here for upward departure." This is not a case, then, in
which the district court did not consider countervailing
considerations. See Ocasio, 914 F.2d at 337. Rather, the court
focused on the grounds for mitigation but chose not to attach the
weight to them that appellant obviously preferred. This
considered weighing is just the sort of "judgment call" that
should not ordinarily be disturbed in the course of
reasonableness review, Diaz-Villafane, 874 F.2d at 49, especially
when, as now, the ostensibly aggrieved party has given the
appellate court no solid reason to question the trial judge's
calibration of the scales.
We need go no further. The court below plainly
fashioned the sentence with defense counsel's recital of
mitigating circumstances in mind. The end product a twenty-one
month upward departure represented a choice that discounted the
importance of those circumstances but that, nevertheless, came
well within the court's discretion.
Affirmed.