August 15, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1213
UNITED STATES,
Appellee,
v.
ROBERT PARKER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Cyr, Circuit Judges.
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.
Per Curiam. Defendant, Robert Parker, pled guilty
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
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
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
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.
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
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
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.
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
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
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
v. Tabares, 951 F.2d 405 (1st Cir. 1991). There, we noted the
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
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
Loc. R. 27.1.
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