United States v. Kennedy

Opinion

USCA1 Opinion

September 9, 1992       [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 92-1158

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   JOHN P. KENNEDY,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]
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                                        Before

                         Torruella and Stahl, Circuit Judges,
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                             and Hornby,* District Judge.
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            Marie T. Roebuck, by Appointment of the Court, for appellant.
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            Ira Belkin,  Assistant United States  Attorney, with whom  Lincoln
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        C.  Almond,  United States  Attorney,  Margaret  E. Curran,  Assistant
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        United  States  Attorney, and  Anthony  C.  DiGioia, Assistant  United
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        States Attorney, were on brief for appellee.

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        * Of the District of Maine, sitting by designation.

HORNBY,  District Judge.   This  case raises  Guideline
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          sentencing issues,  only one of which  deserves extended comment.

          We hold that a defendant's perjury at his sentencing, even though

          limited to a count where he maintains his innocence, justifies an

          obstruction of  justice enhancement under U.S.S.G.    3C1.1 and a

          denial of acceptance of responsibility under U.S.S.G.   3E1.1.

                    The  defendant entered a plea of Not Guilty to Count VI

          of  the Indictment, which  charged him with  impersonating an IRS

          employee.  A  plea agreement  provided that this  count would  be

          dismissed  at sentencing  on the  other counts,  to which  he did

          plead Guilty.  The prosecutor stated on the record at the Rule 11

          hearing,  however, that  the  Government would  seek a  two-level

          enhancement  for the  conduct underlying the  impersonation count

          because that was conduct relevant to the admitted offenses.

                    If the  defendant subsequently  had simply  declined to

          say anything  about the alleged impersonation,  his silence would

          not  have denied  him a  two-level  adjustment for  acceptance of

          responsibility  under U.S.S.G.    3E1.1.   This Circuit  holds it

          inappropriate to deny the reduction for refusing to admit conduct

          involved in a charge to which a defendant has pleaded Not Guilty.

          United States  v. Perez-Franco, 873  F.2d 455,  463-64 (1st  Cir.
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          1989).  Accord United  States v. Rogers, 921 F.2d 975,  982 (10th
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          Cir.), cert. denied,  ___ U.S. ___, 111 S. Ct. 113, 112 L. Ed. 2d
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          83 (1990); United States v. Piper, 918 F.2d 839, 840-41 (9th Cir.
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          1990);  United States v. Oliveras, 905 F.2d 623, 628-32 (2nd Cir.
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          1990).  But see  United States v. Mourning, 914  F.2d 699, 705-07
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(5th  Cir. 1990); United States  v. Ignacio Munio,  909 F.2d 436,
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          439 n.11 (11th Cir. 1990), cert. denied, ___ U.S. ___, 111 S. Ct.
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          1393, 113 L. Ed. 2d 449 (1991); United States v. Gordon, 895 F.2d
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          932,  936-37 (4th Cir.), cert.  denied, ___ U.S.  ___, 111 S. Ct.
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          131, 112 L. Ed. 2d 98 (1990).  But this defendant elected to take

          the  stand at  his  sentencing hearing.    He then,  under  oath,

          provided  testimony (concerning  the alleged  impersonation) that

          the  District Court  supportably  found to  be materially  false.

          Perjury at  a sentencing hearing clearly  justifies the two-level

          enhancement for obstruction  of justice  under U.S.S.G.    3C1.1.

          See U.S.S.G.    3C1.1,  comment. (n.3(b))  (specifically  listing
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          perjury  as   one  of  the   kinds  of  conduct   justifying  the

          enhancement).   As for acceptance of  responsibility, his perjury

          behavior  took the defendant out  of the "safe  harbor" that this

          Circuit  has  otherwise provided  for  simply  maintaining a  Not

          Guilty plea.   Moreover, Application note  4 to U.S.S.G.    3E1.1

          recognizes  that,  although there  may be  "extraordinary cases,"

          conduct  justifying   an  enhancement  for   obstructing  justice

          "ordinarily  indicates  that  the  defendant  has  not   accepted

          responsibility  for  his criminal  conduct."   U.S.S.G.    3E1.1,

          comment.  (n.4).   This  is  not  an  extraordinary  case.    The

          sentencing  judge  was  fully   entitled  to  conclude  that  the

          defendant's perjury at the sentencing hearing showed a failure to

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accept  responsibility.  Perjury as to relevant conduct is not at

          all like maintaining a Not Guilty plea.1

We dispose of the other issues summarily.  The District

          Court  proceeded   to  find   that  the  defendant   had  falsely

          represented himself  to be an Internal  Revenue Service employee.

          The   court  accordingly   applied   an   appropriate   two-level

          enhancement to the Base  Offense Level because there was  a clear

          nexus  between this conduct and  the fraud offenses  to which the

          defendant  pleaded  Guilty.   See  U.S.S.G.    2F1.1(b)(3).   The
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          District   Court's  factual   determination,  reached   after  an

          evidentiary hearing, was not  clearly erroneous, United States v.
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          Connell,  960 F.2d 191, 193 (1st Cir.  1992).  The District Court
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          was entitled to rely upon  hearsay testimony,2 see United  States
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          v. Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990), cert. denied,
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               1 We  do not  rely  upon it,  but  observe that  a  proposed
          revision to Guideline 3E1.1 commentary would make this explicit:

                    A defendant  may remain silent  in respect to
                    relevant  conduct  beyond   the  offense   of
                    conviction without affecting  his ability  to
                    obtain  a  reduction  under this  subsection.
                    However, a  defendant who falsely  denies, or
                    frivolously  contests, relevant  conduct that
                    the Court determines to  be true has acted in
                    a  manner  inconsistent  with  acceptance  of
                    responsibility.

          Proposed Amendment to Sentencing  Guidelines of the United States
          Courts,  57 Fed.  Reg. 20,148,  20,156 (1992)  (proposed May  11,
          1992).

               2 Here, the defendant did  not raise any confrontation issue
          at the hearing.

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___ U.S. ___, 111 S. Ct. 2039, 114 L. Ed. 2d 123  (1991), as well

          as its disbelief of the defendant's testimony.

                    Contrary  to the  defendant's argument,  the Guidelines

          provide  that this enhancement  under U.S.S.G.    2F1.1(b)(3) for

          impersonation can  be added to that  under U.S.S.G.   2F1.1(b)(2)

          for more than minimal planning.  Only the adjustments in U.S.S.G.

            2F1.1(b)(3)  itself  are  mutually exclusive.3    Accord United
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          States  v.  Villarino, 930  F.2d  1527,  1529  (11th Cir.  1991).
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          Applying  both enhancements  does not  result in  double counting

          because the  enhancement for more than minimal  planning is based

          on  a  different factual  premise  than  that for  impersonation.

          Moreover, nothing in the Guideline caps these enhancements  at an

          offense  level of ten.   Indeed, if the impersonation enhancement

          applies,   ten  is   the   minimum  offense   level.     U.S.S.G.
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            2F1.1(b)(3).

                    Finally, because the difference between the minimum and

          maximum  terms in the Guideline  range here was  only six months,

          the District  Court was not required to state its reasons for the

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               3 Prior  to November  1, 1989,  the enhancement  in U.S.S.G.
            2F1.1(b)(3) had been included in U.S.S.G.   2F1.1(b)(2).  Under
          that  earlier version  of  the Guidelines,  the enhancements  for
          impersonation  and  more  than  minimal  planning  were  mutually
          exclusive.   Effective November 1, 1989,  however, the Guidelines
          were amended by splitting the  enhancements contained in the  old
          version of U.S.S.G.    2F1.1(b)(2) into two  separate categories.
          The  impersonation  enhancement (along  with  an  enhancement for
          violation  of  judicial  orders)  became  U.S.S.G.   2F1.1(b)(3).
          Only the adjustments within U.S.S.G.   2F1.1(b)(3)  are described
          ____
          as  mutually exclusive.   See  U.S.S.G.   2F1.1,  comment. (n.1).
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          Nothing  prevents application  of  one enhancement  from each  of
          U.S.S.G.   2F1.1(b)(3) and   2F1.1(b)(2).

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specific point  within the Guideline range at  which it sentenced

          the defendant.  See 18 U.S.C.   3553(c).
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                    The judgment of the district court is AFFIRMED.
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