United States v. Joseph Michael Lincoln, A/K/A Mohammed Ali Ballagh Omer

956 F.2d 1465, 1992 U.S. App. LEXIS 2598, 1992 WL 31360
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 24, 1992
Docket91-1506
StatusPublished
Cited by29 cases

This text of 956 F.2d 1465 (United States v. Joseph Michael Lincoln, A/K/A Mohammed Ali Ballagh Omer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Joseph Michael Lincoln, A/K/A Mohammed Ali Ballagh Omer, 956 F.2d 1465, 1992 U.S. App. LEXIS 2598, 1992 WL 31360 (8th Cir. 1992).

Opinion

BOWMAN, Circuit Judge.

Joseph Lincoln appeals the sentence he received after pleading guilty to suborning perjury in violation of 18 U.S.C. § 1622 (1988). Lincoln presents three issues for our review. First, he contends the District Court 1 erroneously refused to “group” this conviction with an antecedent conviction for mail fraud. Second, he claims the District Court erred in ordering that his sentence run consecutively to the sentences imposed for his mail fraud conviction and a related arson conviction. Finally, he claims the District Court incorrectly attributed leadership points for the instant offense and erroneously refused to credit him for acceptance of criminal responsibility. We affirm.

I

In September 1989, a grand jury indicted Lincoln on one count of arson of a building employed in interstate commerce in violation of 18 U.S.C. § 844(i) (1988) and one count of using the United States mails as part of a scheme to defraud in violation of 18 U.S.C. § 1341 (1988). A jury convicted him of both offenses. 2 Lincoln’s arson offense was committed prior to the effective date of the United States Sentencing Guidelines: he received a ten-year sentence under pre-guidelines law. Lincoln’s mail-fraud offense was committed after the guidelines’ effective date: He received a twenty-one month sentence for this crime under the guidelines.

After he was convicted of these offenses the government began to investigate the possibility that some of Lincoln’s witnesses had perjured themselves. As a result of this investigation Lincoln was indicted on four counts of suborning perjury in violation of 18 U.S.C. § 1622 and one count of procuring the unavailability of a witness in violation of 18 U.S.C. § 1512(b)(1) (1988). On October 12,1990, Lincoln pleaded guilty to one count of suborning perjury.

In determining Lincoln’s sentence on the conviction for suborning perjury, the District Court assessed a base offense level of twelve pursuant to U.S.S.G. § 2J1.3 (Nov. 1990). Because Lincoln committed this offense while upon release pending his trial on the arson and mail-fraud charges, the court added three levels under U.S.S.G. § 2J1.7 (Nov.1990). Because the court found Lincoln had led or managed the offense, it assigned him two additional levels under U.S.S.G. § 3Bl.l(c) (Nov.1990). After the court denied Lincoln a two-level reduction for acceptance of criminal responsibility, it found his arson and mail-fraud convictions gave him three criminal history points, thereby putting him in *1468 guideline Category II. These rulings resulted in a total offense level of seventeen and a guidelines sentencing range of twenty-seven to thirty-three months. The District Court imposed a thirty-three month sentence because of what it considered to be the “seriousness of the defendant’s conduct.” Statement of Reasons for Imposing Sentence, reproduced at Appellant’s Addendum at D4, and ordered this sentence to run consecutively to Lincoln’s arson and mail fraud sentences.

II

Lincoln complains the District Court erroneously refused to group his conviction for suborning perjury with his previous conviction for mail fraud. His argument relies on three sections of the guidelines. First, Lincoln points out that the commentary to the guideline section applicable to subornation of perjury states:

In the event that the defendant is convicted under this section as well as for the underlying offense (i.e., the offense with respect to which he committed perjury), see the Commentary to Chapter Three, Part C (Obstruction), and to § 3D1.2(c) (Groups of Closely Related Counts).

U.S.S.G. § 2J1.3, comment, (n. 3) (Nov. 1990). The commentary to guidelines Chapter Three, Part C says:

[wjhere the defendant is convicted both of the obstruction offense and the underlying offense, the count for the obstruction offense will be grouped with the count for the underlying offense under subsection (c) of § 3D1.2 (Groups of Closely-Related Counts). The offense level for that group of closely-related counts will be the offense level for the underlying offense increased by the 2-ievel adjustment specified by this section, or the offense level for the obstruction offense, whichever is greater.

U.S.S.G. § 3C1.1, comment, (n. 6) (Nov. 1990). Subsection (c) of U.S.S.G. § 3D1.2 provides that:

All counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially the same harm within the meaning of this rule:
# * * # # *
(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.

U.S.S.G. § 3D1.2 (Nov.1990). Lincoln claims these provisions require that his’ subornation and mail-fraud convictions be grouped. 3 He argues that because the offense level attributed to his subornation offense is greater than the level calculated for his mail-fraud offense, and because neither sentence accounted for the guidelines’ grouping principles, the proper penalty for the instant offense is the difference between his mail-fraud sentence and the sentence the guidelines would have imposed had his mail-fraud and subornation sentences been grouped. Because the District *1469 Court’s contrary decision calls upon us to determine the proper construction of the relevant guidelines, our review is de novo. United States v. West, 942 F.2d 528, 530 (8th Cir.1991); United States v. Werlinger, 894 F.2d 1015, 1016 (8th Cir.1990).

In addition to the guidelines and commentary relied upon by Lincoln, relevant authority is provided by two recent decisions of this Court. In United States v. Williams, 935 F.2d 1531 (8th Cir.1991), cert. denied — U.S.-, 112 S.Ct. 1189, 117 L.Ed.2d 431 (1991) and — U.S.-, 112 S.Ct. 1189, 117 L.Ed.2d 431 (1991), the defendant was tried on six counts of selling collateral pledged to the Farmers’s Home Administration. During his first trial Williams engaged an acquaintance to influence the jurors. A mistrial was declared when the jurors informed the court of these contacts, and a second trial produced convictions on several counts. At sentencing, Williams’s base offense level was adjusted by two levels for obstruction of justice.

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Bluebook (online)
956 F.2d 1465, 1992 U.S. App. LEXIS 2598, 1992 WL 31360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joseph-michael-lincoln-aka-mohammed-ali-ballagh-omer-ca8-1992.