IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No.91-8178 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH L. McDONALD a/k/a CLIFTON TYRONNE DAMES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas _________________________________________________________________ (June 15, 1992)
Before HILL,* KING, and DAVIS, Circuit Judges.
PER CURIAM:
Kenneth L. McDonald appeals his sentence, arguing that the
district court erred in refusing to reduce his offense level for
acceptance of responsibility. McDonald also argues that the
district court erred in increasing his sentence for obstruction
of justice and under the career offender provisions of the United
States Sentencing Guidelines. We affirm.
I. STATEMENT OF THE CASE
McDonald was stopped for running a stop sign. During the
stop, the police officer saw two syringes on the floorboard and a
* James C. Hill, Senior Circuit Judge, Eleventh Circuit, sitting by designation. loaded clip for a semi-automatic pistol. McDonald's car was
impounded and an inventory search revealed 47 balloons containing
heroin, a loaded .38 caliber revolver, a loaded 9 mm semi-
automatic pistol, and a small bag of marijuana. McDonald was
then arrested and searched.
McDonald identified himself to the police officers as
Clifton Tyronne Dames. The automobile he was driving was
registered to that name in Miami, Florida. McDonald continued to
identify himself as Dames when he was interviewed by a pretrial
services officer and when he appeared before the magistrate. An
agent of the Bureau of Alcohol, Tobacco, and Firearms eventually
learned that McDonald was using an alias. As a result of this
discovery and McDonald's prior conviction record, a superseding
indictment was returned against him adding, inter alia, a count
of possession of a firearm by a felon. McDonald pled guilty to
counts one and three of this superseding indictment.
A presentence report ("PSR") was prepared recommending that
McDonald be denied a two-point reduction for acceptance of
responsibility and that a two-level increase in offense level be
imposed for obstruction of justice. The probation officer also
found that the career offender provisions of the United States
Sentencing Guidelines ("Guidelines" or "U.S.S.G.") applied to
McDonald. The district court overruled McDonald's objections to
these points in the PSR and sentenced him to 142 months of
imprisonment on count one and 120 months of imprisonment on count
three, the sentences to be served consecutively.
2 II. DISCUSSION
A.
McDonald contends that the district court should have
granted him a two-level reduction for acceptance of
responsibility. A defendant is entitled to such a reduction when
he "clearly demonstrates a recognition and affirmative acceptance
of personal responsibility." U.S.S.G. § 3E1.1(a). McDonald has
the burden of making such a demonstration. United States v.
Mourning, 914 F.2d 699, 705-06 (5th Cir. 1990). Whether a
defendant has accepted responsibility is a factual determination
"entitled to great deference on review." United States v.
Thomas, 870 F.2d 174, 176 (5th Cir. 1989); U.S.S.G. § 3E1.1,
comment.(n. 5). This deference is greater than that accorded
under a clearly erroneous standard. United States v. Fabregat,
902 F.2d 331, 334 (5th Cir. 1990).
On appeal, McDonald does not argue that he clearly
demonstrated an affirmative acceptance of responsibility, but
rather that there was no legitimate reason to deny him the
reduction. McDonald affirmatively concealed his true identity
from law enforcement officials for over a month in an attempt to
conceal his criminal record. This fact alone is sufficient to
support the district court's finding that McDonald did not accept
responsibility and was not entitled to the two-point reduction in
offense level. Moreover, McDonald also denied the charges of
conspiracy, possession with intent to distribute heroin, and
possession of a firearm, despite the admissions in the factual
3 basis and the evidence against him. See U.S.S.G. § 3E1.1,
Application Note 1(c) (sentencing court may consider, in
determining whether a defendant has accepted responsibility,
"voluntary and truthful admission to activities of involvement in
the offense and related conduct"); see also Mourning, 914 F.2d at
705-06. The district court committed no error in denying
McDonald a two-point reduction.
B.
McDonald also contends that the district court's two-level
enhancement of his sentence for obstruction of justice pursuant
to U.S.S.G. § 3C1.1 was improper. We review the district court's
finding that McDonald obstructed justice for clear error. United
States v. Ainsworth, 932 F.2d 358, 362 (5th Cir.), cert. denied,
112 S.Ct. 346 (1991). Section 3C1.1 authorizes a two-level
upward adjustment if the defendant "wilfully obstructed or
impeded, or attempted to obstruct or impede, the administration
of justice during the investigation, prosecution, or sentencing
of the instant offense." See also United States v. Rodriguez,
942 F.2d 899, 901 (5th Cir. 1991), cert denied, 112 S.Ct. 990
(1992).
The Government cites United States v. Rogers, 917 F.2d 165
(5th Cir. 1990), cert. denied, 111 S.Ct. 1318 (1991), as
controlling. In Rogers, the defendant identified himself with an
alias both at the time of his arrest and during a subsequent
police investigation. The police eventually learned his true
identity and discovered an extensive criminal history. We upheld
4 an upward adjustment under § 3C1.1 over the defendant's argument
that the police were only impeded for a brief period, reasoning
that even if there was no actual obstruction of justice, § 3C1.1
covered attempted obstruction as well. Id. at 168-69.
After Rogers was decided, however, the Sentencing Commission
clarified the application of § 3C1.1 in an amendment to the
Commentary effective November 1, 1990, prior to McDonald's
sentencing. The amended Commentary provides that the §3C1.1
enhancement applies to, inter alia, the following acts:
(c) producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding; . . .
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No.91-8178 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH L. McDONALD a/k/a CLIFTON TYRONNE DAMES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas _________________________________________________________________ (June 15, 1992)
Before HILL,* KING, and DAVIS, Circuit Judges.
PER CURIAM:
Kenneth L. McDonald appeals his sentence, arguing that the
district court erred in refusing to reduce his offense level for
acceptance of responsibility. McDonald also argues that the
district court erred in increasing his sentence for obstruction
of justice and under the career offender provisions of the United
States Sentencing Guidelines. We affirm.
I. STATEMENT OF THE CASE
McDonald was stopped for running a stop sign. During the
stop, the police officer saw two syringes on the floorboard and a
* James C. Hill, Senior Circuit Judge, Eleventh Circuit, sitting by designation. loaded clip for a semi-automatic pistol. McDonald's car was
impounded and an inventory search revealed 47 balloons containing
heroin, a loaded .38 caliber revolver, a loaded 9 mm semi-
automatic pistol, and a small bag of marijuana. McDonald was
then arrested and searched.
McDonald identified himself to the police officers as
Clifton Tyronne Dames. The automobile he was driving was
registered to that name in Miami, Florida. McDonald continued to
identify himself as Dames when he was interviewed by a pretrial
services officer and when he appeared before the magistrate. An
agent of the Bureau of Alcohol, Tobacco, and Firearms eventually
learned that McDonald was using an alias. As a result of this
discovery and McDonald's prior conviction record, a superseding
indictment was returned against him adding, inter alia, a count
of possession of a firearm by a felon. McDonald pled guilty to
counts one and three of this superseding indictment.
A presentence report ("PSR") was prepared recommending that
McDonald be denied a two-point reduction for acceptance of
responsibility and that a two-level increase in offense level be
imposed for obstruction of justice. The probation officer also
found that the career offender provisions of the United States
Sentencing Guidelines ("Guidelines" or "U.S.S.G.") applied to
McDonald. The district court overruled McDonald's objections to
these points in the PSR and sentenced him to 142 months of
imprisonment on count one and 120 months of imprisonment on count
three, the sentences to be served consecutively.
2 II. DISCUSSION
A.
McDonald contends that the district court should have
granted him a two-level reduction for acceptance of
responsibility. A defendant is entitled to such a reduction when
he "clearly demonstrates a recognition and affirmative acceptance
of personal responsibility." U.S.S.G. § 3E1.1(a). McDonald has
the burden of making such a demonstration. United States v.
Mourning, 914 F.2d 699, 705-06 (5th Cir. 1990). Whether a
defendant has accepted responsibility is a factual determination
"entitled to great deference on review." United States v.
Thomas, 870 F.2d 174, 176 (5th Cir. 1989); U.S.S.G. § 3E1.1,
comment.(n. 5). This deference is greater than that accorded
under a clearly erroneous standard. United States v. Fabregat,
902 F.2d 331, 334 (5th Cir. 1990).
On appeal, McDonald does not argue that he clearly
demonstrated an affirmative acceptance of responsibility, but
rather that there was no legitimate reason to deny him the
reduction. McDonald affirmatively concealed his true identity
from law enforcement officials for over a month in an attempt to
conceal his criminal record. This fact alone is sufficient to
support the district court's finding that McDonald did not accept
responsibility and was not entitled to the two-point reduction in
offense level. Moreover, McDonald also denied the charges of
conspiracy, possession with intent to distribute heroin, and
possession of a firearm, despite the admissions in the factual
3 basis and the evidence against him. See U.S.S.G. § 3E1.1,
Application Note 1(c) (sentencing court may consider, in
determining whether a defendant has accepted responsibility,
"voluntary and truthful admission to activities of involvement in
the offense and related conduct"); see also Mourning, 914 F.2d at
705-06. The district court committed no error in denying
McDonald a two-point reduction.
B.
McDonald also contends that the district court's two-level
enhancement of his sentence for obstruction of justice pursuant
to U.S.S.G. § 3C1.1 was improper. We review the district court's
finding that McDonald obstructed justice for clear error. United
States v. Ainsworth, 932 F.2d 358, 362 (5th Cir.), cert. denied,
112 S.Ct. 346 (1991). Section 3C1.1 authorizes a two-level
upward adjustment if the defendant "wilfully obstructed or
impeded, or attempted to obstruct or impede, the administration
of justice during the investigation, prosecution, or sentencing
of the instant offense." See also United States v. Rodriguez,
942 F.2d 899, 901 (5th Cir. 1991), cert denied, 112 S.Ct. 990
(1992).
The Government cites United States v. Rogers, 917 F.2d 165
(5th Cir. 1990), cert. denied, 111 S.Ct. 1318 (1991), as
controlling. In Rogers, the defendant identified himself with an
alias both at the time of his arrest and during a subsequent
police investigation. The police eventually learned his true
identity and discovered an extensive criminal history. We upheld
4 an upward adjustment under § 3C1.1 over the defendant's argument
that the police were only impeded for a brief period, reasoning
that even if there was no actual obstruction of justice, § 3C1.1
covered attempted obstruction as well. Id. at 168-69.
After Rogers was decided, however, the Sentencing Commission
clarified the application of § 3C1.1 in an amendment to the
Commentary effective November 1, 1990, prior to McDonald's
sentencing. The amended Commentary provides that the §3C1.1
enhancement applies to, inter alia, the following acts:
(c) producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding; . . . (f) providing materially false information to a judge or magistrate; (g) providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense; (h) 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, Application Note 3.
The enhancement is not intended to apply, however, to:
(a) providing a false name or identification document at arrest, except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense; . . . (c) providing incomplete or misleading information, not amounting to a material falsehood, in respect to a presentence investigation; . . . .
U.S.S.G. § 3C1.1, Application Note 4. McDonald provided a "false
name . . . at arrest" to the police. According to Application
Note 4(a), the use of a false name does not merit enhancement of
the sentence unless such action "actually resulted in a
5 significant hindrance to the investigation. . . ." For example,
in Rodriguez, 942 F.2d at 902, this court found the use of an
alias at the time of arrest and during the police investigation
did not support an enhancement because use of the alias did not
significantly impede the investigation. See also United States
v. Moreno, 947 F.2d 7, 10-11 (1st Cir. 1991) (refusing to uphold
enhancement for obstruction by use of an alias at arrest where
Government did not allege that alias caused significant hindrance
to investigation and defendant made no false statement under
oath).
If McDonald had used his alias only at the time of arrest,
enhancement for obstruction of justice might not have been
warranted, absent a showing of significant hindrance. However,
McDonald also identified himself to the magistrate and filed a
financial status affidavit with the magistrate under the name
"Dames." Application Note 3(f) provides that the use of a false
name before a judge or magistrate merits enhancement even without
a showing of significant hindrance. McDonald's behavior,
according to Application Note 3(f), therefore merits a two-level
enhancement. See United States v. Gardiner, 931 F.2d 33, 34-35
(10th Cir. 1991) ("Application Note 4(a) [false statement at
arrest] . . . does not control the outcome of Gardiner's case
because he failed to disclose his true identity [in three
appearances before] a United States Magistrate . . . ."); United
States v. Urbanek, 930 F.2d 1512, 1515 n.2 (10th Cir. 1991)
(Government must show significant hindrance only with regard to
6 aliases not given under oath); United States v. Yerks 918 F.2d
1371, 1375 (8th Cir. 1990) (where defendant gave alias at arrest
and also signed a financial status affidavit before federal
magistrate, proof of actual obstruction not necessary); United
States v. Patterson, 890 F.2d 69, 72 (8th Cir. 1989) (defendant's
refusal to reveal true name to magistrate warranted enhancement);
see also Rodriguez, 942 F.2d at 902 (upholding enhancement based
on Application Note 3(c) for providing court with fraudulent
birth certificate); United States v. Austin, 948 F.2d 783, 788
(1st Cir. 1991) (district court must impose two-point enhancement
under § 3C1.1 if defendant perjures himself before the court);
United States v. Turpin, 920 F.2d 1377, 1387 (8th Cir. 1990)
(reference to accomplice by use of his alias, in order to mislead
investigators, merits enhancement), cert. denied sub nom.
Williams v. United States, 111 S.Ct. 1428 (1991).
In short, because McDonald used an alias when under oath
before the magistrate and in a filing before the magistrate, the
district court did not err in imposing a two-level enhancement
for obstruction of justice.
C.
Finally, McDonald argues that the district court erred when
it enhanced his sentence under the career offender provisions of
the Guidelines. A defendant is classified as a career offender
if:
(1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense,
7 and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1; see also United States v. Guerra, __ F.2d __,
1992 U.S. App. LEXIS 11695 (5th Cir. 1992). McDonald does not
contest factors (1) and (2). Rather, he argues that his prior
Florida burglary offenses were not, as the Government contends,
felony convictions for a "crime of violence."
The term "crime of violence" is defined as "any offense
under federal or state law punishable by imprisonment for a term
exceeding one year that . . . involves conduct that presents a
serious potential risk of physical injury to another." U.S.S.G.
§ 4B1.2(1)(ii). U.S.S.G. App. C., amend. 268, effective November
1, 1989, provides that the term "'[c]rime of violence' includes
murder, manslaughter, . . . and burglary of a dwelling" (emphasis
added). McDonald argues that his prior Florida convictions were
simply for "burglary," and that a burglary that is not of a
dwelling is not a "crime of violence" under § 4B1.2.
The probation officer who prepared McDonald's PSR could not
tell from the certified and exemplified copies of the convictions
what type of burglary McDonald had committed in Florida, so he
obtained copies of the Florida presentence reports. These
documents, which were not certified and exemplified, indicated
that the six prior burglary convictions were for burglaries of a
dwelling. The district court relied on these documents and the
probation officer's testimony to enhance McDonald's sentence as a
career offender.
8 McDonald argues that the probation officer's testimony and
the uncertified Florida reports are hearsay, and therefore not
properly admissible by the district court. This argument has no
merit. As the Government points out, the Federal Rules of
Evidence regarding hearsay are not applicable to sentencing
proceedings. Fed. R. Evid. 1101(d)(3).
Moreover, we have held that a district court is entitled to
rely upon uncorroborated hearsay testimony in assessing a
defendant's career offender status, so long as the evidence
"carries sufficient indicia of reliability." United States v.
Marshall, 910 F.2d 1241, 1245 (5th Cir. 1990), cert. denied, 111
S.Ct. 976 (1991); see also U.S.S.G. § 6A1.3(a); United States v.
Cuellar-Flores, 891 F.2d 92, 93 (5th Cir. 1989); United States v.
Flores, 875 F.2d 1110, 1112 (5th Cir. 1989). These documents,
prepared by Florida correctional officers, are sufficiently
reliable to sustain the district court's application of U.S.S.G.
§ 4B1.1. See United States v. Manthei, 913 F.2d 1130, 1138 (5th
Cir. 1990) (Drug Enforcement Administration "investigative
records" have sufficient indicia of reliability); Flores, 875
F.2d at 1112 (presentence report and testimony of employee who
prepared report were sufficiently reliable evidence of nature of
defendant's prior burglaries).
Furthermore, as we noted in Flores, McDonald has the burden
of showing that the information relied upon by the district court
was untrue. Id. at 1113; United States v. Clements, 634 F.2d
183, 186 (5th Cir. 1981). He has not carried this burden.
9 McDonald has not argued that the information relied upon was
inaccurate, only that it was inadmissible. Cf. Flores, 875 F.2d
at 1113. Inasmuch as we find that the information was
admissible, we cannot find improper the district court's reliance
on the Florida reports in determining the nature of McDonald's
prior burglary convictions.
III. CONCLUSION
For the foregoing reasons, McDonald's conviction and
sentence are, in all respects, AFFIRMED.