United States v. Melo

Opinion

USCA1 Opinion

September 7, 1993
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 92-2407

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 TEODORO SAMUEL MELO,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Ernest Barone on brief for appellant.
            _____________
            Edwin  J. Gale,  United  States Attorney,  and  Zechariah  Chafee,
            ______________                                  _________________
        Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per  Curiam.   Teodoro Samuel  Melo pled  guilty to
                      ___________

            distributing  and  possessing   with  intent  to   distribute

            cocaine.  He is  now challenging the sentence imposed  on him

            by the district court.  We affirm.

                      After   pleading   guilty,   a  probation   officer

            interviewed  Melo  for purposes  of  preparing a  presentence

            report.  Melo's  court-appointed counsel was  not present  at

            the interview.   During the interview,  the probation officer

            asked Melo if he  had ever been arrested; Melo  answered that

            he had not.   The probation officer discovered that  Melo had

            been  arrested  and  indicted  under  a  different  name  for

            possessing  a firearm and  resisting arrest in  New York, and

            that subsequently  a bench  warrant for  his arrest  had been

            issued  (we  assume because  he  failed to  appear  after his

            release).  The  probation officer also  discovered that  Melo

            had given false names for his siblings at the  interview.  At

            a  follow-up  interview  attended  by  Melo's  counsel,  Melo

            admitted  that  he had  intentionally  lied  about his  prior

            arrest because  he was "scared of the  Feds," and that he had

            lied about the names of his siblings to prevent the probation

            officer from  contacting  them  and  learning  of  his  prior

            arrest.  

                      The presentence report  recommended that the  court

            increase Melo's base  offense level under sentence  guideline

            3C1.1  for  obstruction  of  justice.    See  United   States
                                                     ___

            Sentencing  Commission, Guidelines  Manual    3C1.1, comment.
                                    __________________

            (n.3(h))  (Nov. 1992)  (providing for  an enhancement  if the

            defendant gives  "materially false information to a probation

officer in  respect to  a presentence or  other investigation

            for the court").  It also noted that the court could consider

            an upward departure from the sentencing guideline range since

            Melo had committed the drug offense while on pretrial release

            for the New York offense.   See id.   4A1.3 (suggesting  that
                                        _______

            departure  from  the  otherwise applicable  criminal  history

            category might be appropriate if the defendant had "committed

            the  instant offense while  on bail  or pretrial  release for

            another  serious offense").   Melo's  counsel objected  to an

            obstruction   of  justice   enhancement,  arguing   that  the

            misinformation was "harmless" since the probation officer had

            discovered  the lie  during  an  allegedly  routine  criminal

            records search,  that the prior arrest was  not "material" as

            defined in  the Sentencing  Guidelines, and that  counsel had

            not  been present to advise  Melo at his  first interview and

            Melo had not been told that he could remain silent.

                      At  sentencing,  counsel  for  Melo   again  argued

            against the  obstruction of  justice enhancement (and  for an

            acceptance of responsibility reduction), but did not reassert

            his   constitutional   challenge   to   Melo's   uncounselled

            presentence  interview.    The  court  enhanced  Melo's  base

            offense level for obstruction of justice, and reduced it  for

            his acceptance of responsibility,  arriving at a base offense

            level  of  22;  he  then increased  Melo's  criminal  history

            category  by  one level  because  he had  committed  the drug

-3-

offense   while   "under   bail   with  an   arrest   warrant

            outstanding," thereby arriving at a criminal history category

            of  II.    Using  the  applicable  guidelines  range  in  the

            sentencing table,  the court imposed the  maximum sentence of

            57 months in prison.

                      Melo  asserts   three  grounds  for   vacating  his

            sentence.  First,  he claims  that he had  a Sixth  Amendment

            right  to  counsel at  the  first  presentence interview  and

            should have been advised of his Fifth Amendment rights before

            the interview, arguing  that he  would not have  lied to  the

            probation  officer  had counsel  been  present.   Second,  he

            challenges  the increase  in his  criminal  history category,

            saying that  the original  criminal history category  did not

            "significantly   underrepresent"   the  seriousness   of  his

            criminal history since the  firearms offense was not serious.

            Third, he denies that his lie concerning his prior arrest was

            material.  We consider each claim in turn.

                      1.  The Presentence Interview
                          _________________________

                      Melo's  first  challenge  fails for  a  very simple

            reason.  Melo's counsel  did not present his Fifth  and Sixth

            Amendment  challenge  to  the presentence  interview  to  the

            district court at sentencing, and thus did not preserve  this

            issue for  appeal.  See  United States v.  Ocasio-Rivera, 991
                                __________________     _____________

            F.2d 1, 2-3 & n.3  (1st Cir. 1993) (declining to  consider an

            allegation  that conducting  a presentence  interview without

-4-

counsel  violated  the Sixth  Amendment  where  the appellant

            failed to make that claim at sentencing, and determining that

            the  narrow exception  for  considering issues  not presented

            below where circumstances  were unusually compelling  did not

            apply).

                       2.  Increase in Criminal History Category
                           _____________________________________

                      We also find  Melo's second argument  unpersuasive.

            We  have  previously  sustained  a  decision  to  increase  a

            defendant's criminal history category by one level to account

            for the defendant's commission of an offense at a time when a

            bench warrant for  his arrest was outstanding for  failure to

            appear  on a separate charge.   See United  States v. Garcia,
                                            __________________    ______

            978 F.2d 746, 749 (1st  Cir. 1992).  Melo's arguments  to the

            contrary  provide no  basis for  departing from  our previous

            holding.  

                      Melo   says  first  that  increasing  his  criminal

            history  category was  unreasonable  because he  would likely

            have received a sentence  of one year or less  which, counsel

            says,  would  have  resulted  in  the addition  of  only  one

            criminal history  point,  leaving him  in  category I.    Our

            reading  of the  sentencing guidelines  suggests that  Melo's

            factual premise  is wrong.  See Guidelines  Manual   4A1.1(b)
                                        ___ __________________

            ("Add  2 points for each prior sentence of imprisonment of at

            least  sixty days"  which  was not  already  counted under  a

            different subsection adding  points for sentences  of greater

-5-

than one year and one month);  id. Sentencing Table (equating
                                           ___

            2 or 3 criminal history points with criminal history category

            II).   Moreover, we rejected the very same argument in United
                                                                   ______

            States v.  Madrid, 946 F.2d 142, 143  (1st Cir. 1991), and we
            ______     ______

            therefore do so now.  

                      Melo  also  argues  that  increasing  his  criminal

            history  category  was  unreasonable  because  the  New  York

            offense  was not serious.   Whatever the  actual facts behind

            Melo's  possession of the gun,  there is no  question that he

            was  indicted for a felony and that by definition a felony is

            a serious crime.  In any event,  it was not the nature of the

            firearms  offense   that  persuaded  the  district  court  to

            increase Melo's criminal history  category, but the fact that

            Melo committed the instant  offense while on pretrial release

            after  a bench warrant for his  arrest had issued, presumably

            because he had absconded.   Accordingly, this argument fails,

            too.   Cf. United States  v. Hernandez, 896  F.2d 642, 644-45
                   _________________     _________

            (1st  Cir.  1990)  (rejecting  defendant's  attempt  to  show

            prejudice because he was prevented from arguing at sentencing

            that he was innocent of the prior pending charge since it was

            the very existence of a serious pending charge at a time when

            the defendant  committed the  offense of conviction,  and not

            his  likely guilt or innocence on the prior charge, which led

            the court to increase his criminal history category).

-6-

Finally, Melo suggests that  the court erred by not

            finding specifically that its departure was warranted because

            criminal history category I  "significantly underrepresented"

            the  seriousness of  his  criminal history.   The  sentencing

            transcript shows that the  sentencing proceeding tracked  the

            issues  raised in the presentence report  and that the report

            and the probation officer's  recommendations were referred to

            throughout.   In  the  report, the  probation officer  quoted

            sentencing guideline  4A1.3,  including its  language that  a

            departure  under  that  guideline  was  "warranted  when  the

            criminal history category significantly  under-represents the

            seriousness  of  the  defendant's  criminal  history  or  the

            likelihood that  the defendant  will commit  further crimes."

            The probation officer explained  that the guideline indicated

            that a departure might be warranted for a defendant like Melo

            who  commits an offense while on bail or pretrial release for

            another  serious offense,  concluding  that the  court  could

            consider a departure upward.   Melo's commission of the  drug

            crime  while on bail for the New  York offense was the reason

            the district  court gave for raising  Melo's criminal history

            category  by one  level.   Consequently,  we  think that  any

            required  finding  under guideline  4A1.3  as  to significant

            underrepresentation   or   likelihood  of   further  criminal

            activity  was  implied  in  the  court's  stated  reason  for

            departing  upward, and so we  see no error  in its sentencing

-7-

decision.  See United States v. Calderon, 935 F.2d 9, 12 (1st
                       _________________    ________

            Cir.  1991)  (sustaining  the  sentencing   court's  implicit

            determination  that  appellant's  criminal  history  category

            would  be significantly  underrepresented absent  a one-level

            increase in criminal history category).  

                           3.  Enhancement for Obstruction of Justice
                               ______________________________________

                      Finally, Melo  argues that his false  statements to

            the probation officer were not "materially false"  and so did

            not  warrant  an  obstruction  of justice  enhancement.    We

            recently  sustained an  obstruction  of  justice  enhancement

            under  practically identical circumstances, and so we sustain

            the  enhancement here.  See United States v. Pineda, 981 F.2d
                                    _________________    ______

            569, 575 (1st Cir.  1992) (holding that a defendant,  who had

            been  arrested under a different name on a firearms charge in

            New  York, and who had  an outstanding bench  warrant for his

            arrest  for  failure to  appear on  that  charge, had  made a

            materially false  statement under section 3C1.1  when he told

            the probation  officer preparing a presentence  report on the

            offense  of   conviction  that  he  had   never  before  been

            arrested). 

                      The sentence of the district court is affirmed.    
                                                            ________

-8-