United States v. York

• Court: Court of Appeals for the First Circuit
• Decided: February 11, 1999
• Docket: 98-1941
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1941

UNITED STATES,

Appellee,

v.

LEONARD YORK,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Stahl, Circuit Judge, Campbell, Senior Circuit Judge, and Lynch, Circuit Judge.

Dorothy F. Silver on brief for appellant. Paul M. Gagnon, United States Attorney, and Jean B. Weld, Assistant U.S. Attorney, on Motion for Summary Disposition.

February 5, 1999

Per Curiam. Upon careful review of the record, appellant's brief, the government's motions, and appellant's oppositions thereto, we conclude that this appeal clearly presents no substantial question and that oral argument would not assist us. The district court properly enhanced appellant's sentence under U.S.S.G. 3C1.1 for his obstructive conduct in soliciting an assault on a key witness. "Culpability under the Guideline is also applicable where a defendant causes, or attempts to cause, the obstruction of justice by a third party." United States v. Voccola, 99 F.3d 37, 45 (1st Cir. 1996). In this case, the evidence of appellant's criminal intent amply supported the enhancement, even though his plot was not destined for success and was not implemented. See United States v. Lagasse, 87 F.3d 18, 24 (1st Cir. 1996), citing United States v. Cotts, 14 F.3d 300, 307 (7th Cir. 1994). The district court properly denied a credit under U.S.S.G. 3E1.1 for acceptance of responsibility, there being no "extraordinary" circumstances to counteract the rejection of responsibility demonstrated by appellant's obstructive conduct. See Lagasse, 87 F.3d at 25. The district court did not commit plain error when it did not explore sua sponte such non-existent circumstances. Appellant's argument that the government breached its plea agreement is raised for the first time on appeal, and our review of the relevant facts and law disclosed no plain error and no grounds for resentencing.

The government's motions for summary disposition and to dispense with oral argument are granted. The judgment is affirmed. See 1st Cir. Loc. R. 27.1.