United States v. Parker

Opinion

USCA1 Opinion

August 15, 1994
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 94-1213

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                    ROBERT PARKER,

                                Defendant, Appellant.

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                      APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
                                              ___________________

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                                        Before

                                Torruella, Chief Judge,
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                              Selya and Cyr, Circuit Judges.
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                                 ____________________

            Cerise Lim-Epstein, Mary M.  Diggins and Goodwin,  Procter &  Hoar
            __________________  ________________     _________________________
        on brief for appellant.
            Donald K. Stern, United States Attorney,   and Mark W. Pearlstein,
            _______________                                __________________
        Assistant U.S. Attorney on brief for appellee.

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                                 ____________________

                      Per Curiam.  Defendant,  Robert Parker, pled guilty
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            to all counts of a twenty-count indictment  charging him with

making and presenting false claims, in violation of 18 U.S.C.

              287, and mail fraud, in violation of 18 U.S.C.   1341.  The

            district  court sentenced him to 37 months in prison.  Parker

            appeals  his sentence  on the sole  ground that  the district

            court  erred in  increasing  his base  offense  level by  two

            levels  pursuant  to  U.S.S.G.    3C1.1  for  obstruction  of

            justice. The  increase placed him in  a sentencing guidelines

            range of  33 to 41 months,  instead of the range of  30 to 37

            months.  We affirm.

                                    I.  Background
                                        __________

                 In sentencing  Parker, the  district  court adopted  the

            recommendation  contained  in  the presentence  investigation

            report ("PSR") that  the base offense  level be increased  by

            two levels pursuant to   3C1.1, which provides as follows:

                 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,
                 increase the offense level by 2 levels.

            U.S.S.G.   3C1.1.   The commentary to    3C1.1 includes as an

            example  of the type of  conduct to which  the obstruction of

            justice  enhancement  applies,  "providing  materially  false

            information  to   a  probation   officer  in  respect   to  a

            presentence or other investigation for the court." U.S.S.G.  

            3C1.1, comment (n.3).1  

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            1.  The references herein are to  the guidelines in effect on
            January 12, 1994, the date of Parker's sentencing. 

In explaining the  recommended increase for  obstruction

            of  justice, the PSR recounted that the probation officer who

            prepared that report specifically asked Parker if he had ever

            been  arrested  while living  in  Kansas from  1978  to 1986.

            Parker replied  that he had  been arrested for  driving under

            the  influence and had been placed on probation for one year.

            He failed to mention  any other arrests.  A  subsequent local

            record check by a federal probation office in Kansas revealed

            that Parker had been arrested there in 1984 for two counts of

            burglary  and  two counts  of  criminal  damage to  property.

            Parker had pled  guilty to felony and misdemeanor  charges of

            criminal  damage to  property  and had  received a  suspended

            prison sentence of 1 to 3 years. 2

                 In his objection  to the PSR, Parker  contended that his

            failure  to  inform the  probation  officer  about his  other

            Kansas arrests was not willful.  He explained the omission as

            follows:

                 The  charges to which the Presentence Report refers
                 arose  out  of Mr.  Parker's destroying  his wife's
                 property in  the home that he  formerly shared with
                 his wife.    Although Mr.  Parker  soon  thereafter
                 became divorced, at the time of the incident he was
                 still married and was  a co-owner of the home.   It
                 was and  is Mr.  Parker's memory  and understanding
                 that  the whole  matter was handled  informally and
                 was  connected  to his  divorce.    At his  divorce
                 hearing his wife's attorney  brought up the  matter
                 of the  damaged property.   As part of  the divorce

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            2.  At the  sentencing hearing,  the defense  attorney stated
            that it was  unclear from the record whether  Parker actually
            served time for these convictions.

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decree   Mr.   Parker  was   ordered  to   pay  her
                 restitution.  Immediately after the divorce hearing
                 Mr.  Parker went  to the  courthouse next  door and
                 pled guilty  to what he believed  was a misdemeanor
                 for  damaging  his  wife's  property.  It  was  his
                 understanding that he could  be charged with a more
                 serious crime and/or  sentenced to imprisonment  if
                 he failed to pay restitution.

                      At the interview with the Probation Officer on
                 November  15,  1993,  Mr.   Parker  stated  in  the
                 presence of  the officer  and his attorney  that he
                 had been ordered  to pay his wife restitution.  Mr.
                 Parker  did  not  explain  the  background  of  the
                 restitution order to the Probation  Officer because
                 of his (Mr. Parker's)  understanding that it was an
                 informal incident related to his divorce.

                 The  probation   officer,  in  his   response  to   this

            objection,  noted  that  the  records  received  from  Kansas

            contained nothing to indicate  that the defendant's  criminal

            charges were  handled informally.   The Kansas  court records

            indicated  that  Parker was  represented  by  counsel at  his

            guilty plea  hearing and that  the court  questioned him  and

            determined  that  his  plea  to the  felony  and  misdemeanor

            charges was voluntary and intelligent.  Parker was thereafter

            sentenced on those charges.   The probation officer concluded

            that "there is nothing in the record that would indicate that

            the  defendant's plea was in  any way related  to his divorce

            proceedings."

                  At  the  sentencing hearing,  Parker conceded  that the

            convictions had occurred and  that he did not report  them to

            the probation officer.  He argued, however, that  his failure

            to  report them  resulted from  a misunderstanding  about the

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nature of the offenses,  and was not willful.  Parker argued,

            through counsel,  that if he had intended to hide the fact of

            the  prior  convictions  he   would  not  have  informed  the

            probation  officer of  the restitution order  or that  he had

            lived in Kansas,  information that  "directly led .  . .  the

            probation officer  to that  conviction."  The  district court

            concluded that a two-level  increase to Parker's base offense

            level for obstruction of justice was warranted.

                                    II. Discussion
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                 We review for clear error a district court's decision to

            increase an offense level for obstruction of justice under 

              3C1.1.  United States v. Aymelek, 926 F.2d 64, 68 (1st Cir.
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            1991).   The government  has  the burden  of proving  willful

            obstruction of  justice by  a preponderance of  the evidence.

            Id. at 67.   Therefore, our  inquiry here is  limited to  the
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            following question:

                 whether there is sufficient evidence on the  record
                 to  support  a reasoned  conclusion  that appellant
                 [willfully] obstructed, or  attempted to  obstruct,
                 the proceedings.

            Id. at 68.
            ___

                 We  believe   that  the  record   supports  a  "reasoned

            conclusion" that Parker "willfully" attempted to obstruct the

            sentencing  proceedings by  omitting the  Kansas  arrests and

            convictions for  criminal damage to property  when questioned

            by the  probation  officer.   Parker  argues on  appeal  that

            "there was no evidence presented by the government from which
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the  court  could conclude  that Parker  willfully obstructed
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            justice."  We disagree.  

                 It  is  uncontested  that  the  arrests  and convictions

            occurred  and  that  Parker   failed  to  mention  them  when

            specifically questioned about prior  arrests.  He  attributed

            this failure  to a misunderstanding  about the nature  of the

            previous  offenses.  In this  context, the information in the

            PSR  that Parker  was  represented by  counsel when  pleading

            guilty to  the unreported  criminal charges, that  the guilty

            plea was found to  be voluntary and intelligent and  that the

            Kansas records contained nothing to indicate that the omitted

            charges  were  handled   informally  (as  Parker  contended),

            constitutes evidence of willfulness.    The inclusion of  the

            prior  convictions  had  the effect  of  increasing  Parker's

            criminal history category. Therefore, Parker had a motive for

            omitting them.   This also constitutes some evidence that the

            omissions were willful.

                 The court  read Parker's written objections  to the PSR,

            heard his  counsel's arguments at the  sentencing hearing and

            gave  Parker an  opportunity to  speak at  the hearing.   The

            court did not believe the explanation Parker gave for failing

            to report the arrests and convictions:  that he misunderstood

            the nature of the offenses.  See United States  v. Baker, 894
                                         ___ _____________     _____

            F.2d  1083,  1085  (9th  cir.  1990)  (upholding  finding  of

            "willfulness"  where  sentencing court  "afforded [defendant]

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ample opportunity to  refute allegations  in the  presentence

            report  and  to present  his own  view  of the  facts" before

            rejecting  defendant's explanation  that he  believed omitted

            convictions weren't part of his criminal history).

                 In  United States  v. St.  Cyr, 977  F.2d 698  (1st Cir.
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            1992),  we  reviewed for  clear  error  the district  court's

            finding  of "willfulness"  with  respect  to the  defendant's

            failure to disclose previous  convictions and guilty pleas in

            his interview with a  probation officer.  We upheld  the two-

            level increase for obstruction  of justice where the district

            court did not find  defendant's explanation for his omissions

            (that he had simply forgotten about his previous convictions)

            credible.       "In   the   sentencing   phase,   credibility

            determinations lie  within the domain of  the district court.

            Only rarely -- and  in the most urgent circumstances  -- will

            we, from the vista  of a sterile appellate record,  meddle in

            such matters." Id. at  706.   We reiterated that  "when there
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            are two plausible views of the record, the sentencing court's

            adoption of one such view cannot be clearly erroneous." Id.3
                                                                    ___

                 Similarly,  in this  case  the  district court  rejected

            Parker's  explanation  for  failing to  disclose  the  Kansas

            arrests and convictions.  Given the evidence that Parker  was

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            3.  Parker's argument  that  any conflicts  in  the  evidence
            should be resolved in defendant's favor pursuant to    3C1.1,
            comment (n.1),  has repeatedly  been rejected by  this court.
            See  Aymelek, 926 F.2d at 68. 
            ___  _______

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represented by  counsel when  pleading guilty to  the omitted

            offenses,  that his guilty plea was knowing and voluntary and

            that Kansas court records gave no indication that the charges

            were handled informally, it was not clearly erroneous for the

            district  court   to  reject  Parker's  explanation  that  he

            misunderstood  the  nature of  the  offenses.   The  district

            court's finding was based  on a plausible view of  the record

            and  cannot be rejected as  clearly erroneous. See   St. Cyr,
                                                           ___   _______

            977 F.2d  at 706.   See also United  States v. Tello,  9 F.3d
                                ___ ____ ______________    _____

            1119  (5th  Cir.  1993)  (affirming  two-level  increase  for

            obstruction of  justice where district court  did not clearly

            err in rejecting defendant's  explanation for failure to tell

            probation officer about prior arrests and convictions).

                 Parker argues that this case is similar to United States
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            v. Tabares, 951 F.2d 405 (1st Cir. 1991). There, we noted the
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            absence  of evidence of willfulness.  We held that the giving

            of  a  false  social  security  number  was  not  "material,"

            reasoning that the number, which defendant had been using for

            some   time,  likely   helped   investigators   looking   for

            defendant's  prior work history.   See id.  at 411.   In this
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            case, however, Parker concedes in his brief that the omission

            was  "material."    Moreover,  Parker's   argument  that  the

            incomplete  information disclosed  by him  --that restitution

            was  ordered in his Kansas divorce  proceedings -- would have

            led to the  discovery of the omitted convictions for criminal

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damage  to property, is of no  avail.  The failure to provide

            complete information of his previous arrests  and convictions

            certainly  delayed the  preparation  of an  accurate PSR  and

            could  have resulted in an inaccurate sentencing computation.

            See United States v. Baker, 894 F.2d at 1084.  
            ___ _____________    _____

                 Finally,  Parker accuses  the district  court of  having

            made up its mind  on the obstruction of justice  issue before

            hearing from  the  parties at  the sentencing  hearing.   The

            record   completely  belies  that   contention.    While  the

            sentencing judge stated that,  based upon his reading  of the

            PSR,  he was  persuaded that  an  obstruction of  justice had

            occurred, that  was merely a  statement of his  thinking thus

            far  in the  process.  He  went on to  carefully consider the

            parties' arguments  at the  hearing.  He  questioned Parker's

            attorneys   closely  about   Parker's  explanation   for  his

            omissions  and   about  the  records  of   the  Kansas  court

            proceedings  before  ruling  that  a  two-level  increase for

            obstruction of justice was warranted.  

                 Accordingly, the  judgment is  summarily affirmed.   See
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            Loc. R. 27.1.

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