UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30844
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK HOUGH HARRINGTON,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
June 2, 1997
Before POLITZ, Chief Judge, KING, Circuit Judge, and FOLSOM,* District Judge.
POLITZ, Chief Judge:
Patrick Hough Harrington appeals his sentence on remand. Concluding
that the district court properly applied the Sentencing Guidelines, we affirm.
BACKGROUND
Harrington, a licensed attorney, pled guilty to one count of conspiracy to
induce the illegal entry and to transport aliens into the United States and two
counts of smuggling aliens into the United States.1 While awaiting sentencing,
*
District Judge of the Eastern District of Texas, sitting by designation.
1
8 U.S.C. § 1324(a)(1) and 18 U.S.C. § 371.
he concocted a scheme to create a basis for the withdrawal of his guilty pleas.
He dispatched Damon Paul Cheatwood, a layman whom he portrayed as an
attorney associate, to Colorado to contact two women Harrington had smuggled
illegally into the United States. Harrington provided Cheatwood with two
affidavits, instructed him to secure the signatures of the women on the
affidavits, and authorized Cheatwood to pay each $200 in exchange for their
signatures. The affidavits stated that Harrington had not transported the women
into the United States and did not know they were illegal aliens; that a border
patrol agent had promised the women citizenship in exchange for making false
statements against Harrington; and that an Immigration and Naturalization
Service agent informed the women that Harrington had hired someone to kill
them. Each of the statements in the affidavits was a blatant falsehood.
Harrington became concerned that the signatures on the affidavits could
not be verified in court because the women were illegal aliens. To overcome
this hurdle and to ensure the acceptance of the affidavits, Harrington and
Cheatwood hired a court reporter, a video camera operator, and a translator to
take the affidavits. Cheatwood thereafter contacted one of the women, but she
refused to cooperate and informed the FBI of Cheatwood’s proposal. The FBI
then recorded a telephone conversation in which Harrington told Cheatwood
that he would pay the women $400 each to sign the affidavits and that he was
concerned about the women remaining in the United States.2
2
Cheatwood consented to recordation of his conversation with Harrington.
2
Harrington subsequently was indicted for conspiracy to obstruct justice
and obstruction of justice.3 Harrington pled guilty and was sentenced to 60
months imprisonment. After a panel of this court vacated that sentence, 4
Harrington was sentenced on remand to 60 months imprisonment. He timely
appealed.
ANALYSIS
Harrington contends that the district court erred by enhancing his sentence
on the basis of abuse of a position of public trust and by increasing his criminal
history category from category I to III. We review the trial court’s findings of
fact for clear error and its application of the sentencing guidelines de novo.5
1. Abuse of a Position of Public Trust
Section 3B1.3 of the Sentencing Guidelines provides:
If the defendant abused a position of public or private trust...in a
manner that significantly facilitated the commission or concealment
of the offense, increase [the defendant’s base offense level] by 2
levels.
The district court concluded that, as a lawyer, Harrington held a position of
public trust and abuse of that position significantly facilitated the commission of
his offenses. We find absolutely no error in this manifestly sound and well-
reasoned conclusion.
The government and Harrington agree that a lawyer occupies a position of
3
18 U.S.C. §§ 2, 371 and 1503.
4
82 F.3d 83 (5th Cir. 1996).
5
See United States v. Brown, 7 F.3d 1155 (5th Cir. 1993).
3
public trust. This is a given. The duty of lawyers includes, for trial lawyers, the
prosecution and defense of persons and causes in courts of law. In doing so,
lawyers represent not only the interests of clients, but the interests of our entire
judicial system, indeed the interests of our society. The integrity of our judicial
system inextricably is intertwined with the integrity of our trial lawyers.
Consequently, it cannot be gainsaid that lawyers occupy a position of public
trust.6 It would be rank folly to suggest otherwise.
Harrington’s abuse of this position significantly facilitated both the
conspiracy and the obstruction of justice. When Harrington instructed
Cheatwood to have the women sign the affidavits Cheatwood asked Harrington
if it would be legal to have them do so. Harrington assured Cheatwood that it
was perfectly legal and that the women could simply refuse to sign the affidavits
if they so chose. When Harrington contacted Holly Conklin, a court reporter in
Denver, he identified himself as a lawyer. Harrington wanted to hire Conklin to
take the affidavits and Conklin made known that she would do so only if
Harrington were a lawyer. When Harrington contacted Guadalupe Duran, a
translator, he gave her his law office answering service number. In later
discussions with Duran Harrington repeatedly identified Cheatwood as his
associate. Further, when Cheatwood hired Kim Love, a video camera operator,
he gave Love one of Harrington’s business cards and credit cards. The business
card clearly identified Harrington as a lawyer.
6
See United States v. Post, 25 F.3d 599, 600 (8th Cir. 1994) (“We conclude that Post’s
status as a licensed Arkansas attorney placed him in a position of public trust.”).
4
The record unambiguously establishes that Harrington used and abused
his position as a lawyer in his effort to secure the fraudulent affidavits of the two
women. Every person contacted by Harrington and Cheatwood knew that
Harrington was a lawyer. This knowledge shrouded the actions of Harrington
and Cheatwood with a false presumption of regularity and legality, and ensured
the cooperation of the court reporter, the translator, and the video camera
operator. For this pernicious conduct, Harrington’s sentencing guidelines
computation was subject to the two-level enhancement provided by section
3B1.3 of the Sentencing Guidelines.
2. Criminal History Category
Section 4A1.3 of the Sentencing Guidelines provides:
If reliable information indicates that the criminal history category
does not adequately reflect the seriousness of the defendant’s past
criminal conduct or the likelihood that the defendant will commit
other crimes, the court may consider imposing a sentence departing
from the otherwise applicable guideline range.
Harrington’s criminal history category was originally established as
category I. After considering Harrington’s four prior convictions the district
court increased it to category III. We find no error in that increase.
Harrington had three prior convictions for contempt of court, including
one for the providing of false information to the court. In addition, Harrington
was convicted of reckless driving. That conviction resulted after Harrington led
police on a high speed chase and, in the process, ran six cars off the road. 7
7
Harrington’s convictions for contempt of court and reckless driving were not included
in the original computation of his criminal history category. See Sentencing Guidelines §
5
Although non-violent, each of Harrington’s prior convictions clearly
demonstrate his manifold disrespect for the law and our judicial system.
Furthermore, Harrington’s prior and current convictions bear a striking
similarity. All are based upon Harrington’s attempts to hinder, obstruct, or
pervert the judicial system to his personal advantage.
Harrington’s criminal history category did not accurately reflect the
seriousness of his criminal history. Consequently, an increase in his criminal
history category was warranted, and that increase correctly was premised on the
prior and similar convictions.8 We perceive this increase as fully justified and
find no error in same.9
Harrington’s sentence is AFFIRMED.
4A1.2.
8
See United States v. Pennington, 9 F.3d 1116, 1118 (5th Cir. 1993) (“[S]everal [of the
defendant’s] prior convictions were not included in his criminal history category
calculation; these convictions alone justified a departure.”).
9
Harrington also contends that the district court erred by refusing to grant an offense
level reduction for acceptance of responsibility. See Sentencing Guidelines § 3E1.1. The
record is devoid of any evidence that the district court erred by refusing this request.
6