United States v. Onyejekwe

July 6, 1995 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1772

UNITED STATES,

Appellee,

v.

CHRISTOPHER ONYEJEKWE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Stahl, Circuit Judges.

Christopher Onyejekwe on brief pro se.

Sheldon Whitehouse, United States Attorney, and James H. Leavey,

Assistant United States Attorney, on brief for appellee.

Per Curiam. On May 2, 1994, appellant Christopher

Onyejekwe pled guilty to one count of credit card fraud.

Sentence was imposed on July 8, 1994. This appeal followed.

Appellant seeks to vacate his guilty plea and sentence on the

ground of ineffective assistance of counsel. He also alleges

various sentencing errors. In particular, he contends that

the district court erred (1) in applying the obstruction-of-

justice enhancement based on a finding that he lied about his

residence at the suppression hearing; (2) in assessing him

two criminal history points based on a finding that he

committed the instant offense (i.e., relevant conduct) while

serving a state sentence of probation; and (3) in determining

the amount of restitution. For the following reasons, we

affirm.

BACKGROUND

Because appellant's conviction resulted from a guilty

plea, we derive the pertinent facts from the uncontested

portion of the Presentence Investigation Report (PSR), as

well as the remainder of the record.1 See United States v.

1. This record includes transcripts of the arraignments,
evidentiary hearing on the motion to suppress, and
disposition hearing. We note that appellant's appendix
includes many documents which were not filed in the district
court--including transcripts of testimony before the grand
jury--and are, thus, outside the record. See Fed. R. App. P.

Tejada-Beltran, 50 F.3d 105, 107 (1st Cir. 1995). On October

15, 1993, appellant and his co-defendant, Elizabeth Mogaji,

were secretly indicted with five counts of fraudulent use of

access devices.2 18 U.S.C. 1029(a)(2), 2. Appellant was

arrested on October 20, 1993. At the time of his arrest, he

was carrying "a list of names, dates of birth, mothers'

maiden names, etc." An arraignment and bail hearing were

held on October 21, 1993. Appellant informed pre-trial

services and the magistrate that he lived at 202 Bellevue

Avenue, Providence. The government proffered that appellant

actually resided at 10 Stamford Avenue, Providence.

On October 22, 1993, Mogaji was arrested at 10 Stamford

Avenue, where she was living under the name of Althea

Medeiros. On October 25, 1993, federal agents executed a

search warrant at 10 Stamford Avenue. Among the items seized

were credit cards in the names of Althea Medeiros and John P.

Medeiros and documents in the names of Onyejekwe and Mogaji.

On October 29, 1993, a federal agent seized two plastic bags

from the cellar of the Stamford property. These bags

contained incriminating documents, including GM credit cards

in the names of Althea and Leonard Medeiros; counterfeit

drivers' licenses in various false names with a photograph of

10(a). These latter documents, of course, cannot inform our
decision.

2. Elizabeth Mogaji is appellant's girlfriend.

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appellant or Mogaji; a list of names and other data; and

blank credit card applications.

On November 3, 1993, a superseding indictment was

returned which added a conspiracy count (Count 1), see 18

U.S.C. 371, to the five counts of credit card fraud (Counts

2-6). Several months later, appellant filed a motion to

suppress the evidence seized at the Stamford property on

October 29, 1993. An evidentiary hearing was held on April

8, 1994. At this hearing, appellant testified that he lived

at 10 Stamford Avenue, and that he had placed the two plastic

bags of documents in his own laundry dryer in the cellar at

that address. He admitted that he told the magistrate that

he lived at 202 Bellevue Avenue, but testified that he had

two residences. The district court denied the motion to

suppress on the ground that appellant lacked standing. The

court stated in pertinent part:

It further seems to me that insofar as
Mr. Onyejekwe is concerned we're going to
hold him to what he told the Magistrate
Judge. That he lived at 202 Bellevue.
That was his home. So that he would have
no expectation of privacy in number 10
Stanford Street [sic] in any event.

Appellant pled guilty to Count 3 of the superseding

indictment on May 2, 1994. The remaining counts were

dismissed. Prior to sentencing, a PSR was prepared. The PSR

identified appellant's legal address as 202 Bellevue Avenue.

Appellant objected on the ground that the PSR should reflect

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that he maintained a second address at 10 Stamford Avenue.

The probation officer responded that during the course of his

presentence interview, appellant advised that his legal

address was 202 Bellevue Avenue, that Mogaji had moved to 10

Stamford Avenue, and that appellant would periodically stay

with her but maintained his legal residence as 202 Bellevue

Avenue.

A sentencing hearing was held on July 8, 1994. Based on

a total offense level of 15 and a criminal history category

of III, the court determined the guideline sentencing range

to be 24-30 months. Appellant was sentenced to 28 months

imprisonment, followed by a period of supervised release. He

was also ordered to pay restitution to Chase Manhattan Bank

in the amount of $7,036.17.

DISCUSSION

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant, who was represented by three successive

court-appointed attorneys, argues that each of his attorneys

was inept and that their combined deficient performance

rendered his guilty plea involuntary. He also contends that

his third attorney's assistance at the sentencing hearing was

incompetent. Ordinarily, we do not address ineffective

assistance of counsel arguments on direct appeal. This case

is no exception. Appellant alleges, inter alia, that his

attorneys failed to investigate his case, were ignorant and

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ill-prepared, and provided him with misleading information.

These charges depend upon evidentiary matters which are best

considered by the district court in the first instance. See,

e.g., United States v. McGill, 952 F.2d 16, 19 (1st Cir.

1991) (fact-specific claims of ineffective assistance must

originally be presented to the district court). Accordingly,

appellant's claim of ineffective assistance is not properly

before us.

II. SENTENCING

A. Obstruction of Justice

U.S.S.G. 3C1.1 directs the district court to increase

a defendant's offense level by two levels "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." The enhancement applies where a defendant commits

perjury. See U.S.S.G. 3C1.1, comment. (n.3(b)); see also

United States v. Dunnigan, 113 S. Ct. 1111, 1116 (1993)

(defining perjury). In the instant case, the district court

found that appellant perjured himself at the suppression

hearing. Accordingly, the court made a two level upward

adjustment to appellant's offense level.

Appellant contends that the district court failed to

identify which portions of his testimony it believed to be

false. This contention is misplaced. The district court

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specifically found that appellant was not telling the truth

when he testified that he lived at 10 Stamford Avenue, a fact

material to the issue of his standing to bring the motion to

suppress. The district court was not required to make

further subsidiary findings or to explain its evaluation of

appellant's testimony. See United States v. Tracy, 36 F.3d

199, 203 (1st Cir.), cert. denied, 115 S. Ct. 609 (1994).

Appellant also argues that there is insufficient

evidence to support the court's finding that he testified

falsely. We disagree. Although the location of his

residence was an issue from the very beginning, appellant

consistently maintained that he lived at 202 Bellevue Avenue

until the suppression hearing where, for the first time, he

stated to the district court that he maintained a second

residence at 10 Stamford Avenue. The court was entitled to

greet this conveniently-timed announcement with skepticism.

Moreover, the record discloses that appellant professes to be

indigent. Under the circumstances, his testimony that he has

two residences is implausible, at least without further

explanation.

We are, of course, mindful that, at the arraignment, the

government proffered that appellant resided at 10 Stamford

Avenue. The government stated that federal agents "staked

out" that address and arrested appellant when he left the

house. In addition, documents belonging to appellant were

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seized from 10 Stamford Avenue. However, appellant told

probation that he would periodically stay with Mogaji after

she moved to 10 Stamford Avenue. This may explain why he was

observed departing 10 Stamford Avenue and why some of his

personal papers were found there, but the evidence also

suggests that it was Mogaji, not appellant, who lived at the

Stamford address. Given the conflicting inferences which may

be drawn from the evidence, and with due deference to the

sentencing court's superior opportunity to assess witness

credibility, we cannot say that the district court clearly

erred in finding that appellant lied at the suppression

hearing.3 United States v. Brum, 948 F.2d 817, 819 (1st

Cir. 1991) (finding of perjury reviewed for clear error);

United States v. Martinez, 922 F.2d 914, 925 (1st Cir. 1991)

(where there is more than one plausible view of the

circumstances, a sentencing court's choice among supportable

alternatives cannot be clearly erroneous).

B. Criminal History

3. We also reject appellant's contention that the district
court erred in failing to evaluate his testimony "in a light
most favorable to the defendant[,]" as required by U.S.S.G.
3C1.1, commentary n.1. We have repeatedly stated that this
"commentary" merely requires the district court to resolve in
the defendant's favor "`those conflicts about which the
judge, after weighing the evidence, has no firm conviction.'"
Tracy, 36 F.3d at 204 (quoting United States v. Rojo-Alvarez,

944 F.2d 959, 969 (1st Cir. 1991) (quoting other circuits)).
In this case, the district court did have a firm conviction
that perjury had been committed.

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Appellant's criminal history includes a January 21, 1993

state conviction for embezzlement and an April 2, 1993 state

conviction for credit card fraud. In both cases, appellant

was sentenced to probation. Acting pursuant to U.S.S.G.

4A1.1(c), the district court assessed him two criminal

history points for these prior sentences. The court then

added two additional criminal history points under 4A1.1(d)

on the ground that appellant committed the relevant conduct

while serving a sentence of probation.4

Appellant argues that the district court erred in

assessing him the two additional points under 4A1.1(d). In

particular, he contends that he should not be held

accountable for the conduct involved in Count 6, namely,

eighteen cash withdrawals made by Mogaji using a GM

Mastercard between October 26, 1992 and June 13, 1993.

Appellant claims that he was under immigration detention when

these withdrawals were made and was facing prosecution for

use of the same credit card. Under the circumstances, he

argues, Mogaji's conduct was not foreseeable, and, so, not

relevant conduct within the meaning of U.S.S.G. 1B.3.

4. The commentary to U.S.S.G. 4A1.1 states that "[t]wo
points are added if the defendant committed any part of the
instant offense (i.e., any relevant conduct) while under any

criminal justice sentence." U.S.S.G. 4A1.1, comment.
(n.4). Relevant conduct is defined at U.S.S.G. 1B1.3. See

United States v. Smith, 991 F.2d 1468, 1470-71 (9th Cir.

1993) (holding that "instant offense" under 4A1.1(d)-(e)
includes "relevant conduct" pursuant to 1B1.3).

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Accordingly, he further argues, the district court should not

have considered this conduct in calculating his criminal

history under 4A1.1(d).

We need not resolve this issue of foreseeability or the

question, raised in appellant's reply brief, whether

4A1.1(d) permits a sentencing court to consider relevant

conduct committed by a co-defendant in calculating a

defendant's criminal history. Count 1 of the superseding

indictment alleged a conspiracy between appellant and Mogaji.

Based on the undisputed facts in the PSR, we think there is

ample evidence that appellant conspired to commit credit card

fraud and that his involvement in the conspiracy continued at

least until the date of his arrest, October 20, 1993, when he

was found to be carrying "a list of names, dates of birth,

mothers' maiden names, etc." See United States v. Pinnick,

47 F.3d 434, 437 (D.C. Cir. 1995) (district court may rely on

undisputed facts in PSR to conclude that defendant committed

any extraneous acts offered as relevant conduct). Indeed,

appellant's possession of the list of names and other data on

October 20, 1993 was an overt act in furtherance of the

conspiracy. This was relevant conduct committed by the

defendant, himself, while serving a state sentence of

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probation. Accordingly, there was no error in adding two

criminal history points under 4A1.1(d).5

C. Restitution

Appellant contends that the district court erred in

ordering him to pay restitution to Chase Manhattan Bank in

the amount of $7,036.17 for the loss involved in Count 3.

The dollar amount was apparently based on credit card charges

made by appellant and Mogaji on two separate occasions at

Lechmere using a Chase Manhattan Mastercard. Appellant

contends that the amount owed to the bank should be offset by

the value of certain goods which they did not succeed in

carrying away from Lechmere. We decline to entertain this

5. We also reject appellant's argument that the district
court failed to resolve disputed issues of fact as required
by former Fed. R. Crim. P. 32(c)(3)(D) (current version at
Rule 32(c)(1)). The PSR assessed appellant two criminal
history points under 4A1.1(d). In his objections to the
PSR and at sentencing, defense counsel argued that this was
error because the specific offense to which Onyejekwe pled
guilty (Count 3) occurred before Onyejekwe was placed on
probation. This objection to the PSR's legal conclusion did
not dispute a factual assertion. We add that in the addendum
to the PSR, the probation officer clarified that the criminal
history points under 4A1.1(d) were based on relevant
conduct. Defense counsel never took issue with the
conclusion that the conduct involved in the dismissed counts
was relevant conduct.

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claim since it was never raised below. See United States v.

Alzanki, 1995 WL 319028 at *12 (1st Cir. June 1, 1995).6

Affirmed.7

6. Appellant also argues that Chase Manhattan Bank will
receive a windfall since he and Mogaji were each ordered to
pay $7,036.17 in restitution. We think it plain that
appellant will receive credit for restitution paid by Mogaji
towards the loss involved in Count 3, and vice versa.

7. We also deny appellant's request that we order the
district court to produce the audio recording of the
suppression hearing. Appellant contends that the court
reporter prepared two transcripts of his testimony at that
hearing, that the transcripts differ, and that it cannot be
determined which of the two is accurate without comparing
them to the audio recording. He also suggests that the
district court may have relied on an inaccurate transcript of
his testimony when it determined that he perjured himself.
Appellant has not followed the proper procedure for
clarifying the record. See Fed. R. App. P. 10(e). In any

event, we see nothing to be gained by remanding the matter to
the district court. The differences between the two
transcripts are insignificant.

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