[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1458
UNITED STATES,
Appellee,
v.
GLENN R. ELION,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joyce L. Alexander, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Leslie W. O’Brien on brief for appellant.
Donald K. Stern, United States Attorney, and Colin Owyang,
Assistant United States Attorney, on Motion for Summary
Disposition for appellee.
July 30, 2001
Per Curiam. Defendant Glenn Elion ("Elion") appeals a
sentence imposed upon his guilty plea to a one-count information
charging him with wire fraud in violation of 18 U.S.C. §§ 1343
and 2. He claims that the district court erred in enhancing his
sentence beyond the base level prescribed by the United States
Sentencing Guidelines (U.S.S.G.) based on facts not proven
beyond a reasonable doubt in violation of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Elion also mounts a more specific
challenge to a two-level obstruction of justice increase under
U.S.S.G. § 3C1.1. The government has moved for a summary
affirmance pursuant to Loc. R. 27(c). After a thorough review
of the record and of the parties' submissions, we allow the
government's motion and summarily affirm the judgment below.
I. Apprendi
Elion asserts that the district court violated Apprendi
v. New Jersey, 530 U.S. 466 (2000), by applying various
sentencing enhancements to adjust base level of his offense
upward from 6 to 22 without submitting the factual questions
forming the bases for the increases to a jury. Since Elion
failed to raise this argument before the district court, we
review for plain error. United States v. Patrick, 248 F.3d 11
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(1st Cir. 2001); United States v. Robinson, 241 F.3d 115, 119
(2001).
We have consistently held that Apprendi does not
apply to guideline findings that increase the sentence but do
not elevate it beyond the statutory maximum. United States v.
Robinson, 241 F.3d 115, 121 (1st Cir. 2001); United States v.
Caba, 241 F.3d 98, 101 (1st Cir. 2001); see also United States
v. LaFreniere, 236 F.3d 41, 50 (1st Cir. 2001). Thus, since
Elion's sentence of 46 months is within 18 U.S.C. § 1343's
default statutory maximum of five years, the district court
committed no error, plain or otherwise.
II. Obstruction of Justice
Elion also challenges the two-level enhancement applied to
his sentence for obstruction of justice pursuant to U.S.S.G. §
3C1.1. Although Elion objected to the enhancement below, he did
so on different grounds than he now raises. Accordingly, we
review for plain error.
Section 3C1.1 prescribes a mandatory two-level increase in
a defendant's base offense level if:
(A) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede,
the administration of justice during the
course of the investigation, prosecution, or
sentencing of the instant offense of
conviction, and (B) the obstructive conduct
related to (i) the defendant's offense of
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conviction and any relevant conduct; or (ii)
a closely related offense[.]
The district court applied the enhancement based on various
material misrepresentations Elion made to federal law
enforcement authorities during the course of their investigation
of a Nigerian advance fee scheme in which Elion was initially
involved as a victim. Elion developed his own fraud scheme
(i.e., the offense of conviction) as a means to obtain funds to
send to the Nigerian accounts under investigation. The
misrepresentations upon which the obstruction of justice
enhancement was based were made in order to avoid detection of
the extent of his involvement in the Nigerian scheme and of his
own sub-scheme. Elion now contends that the district court
committed plain error in basing the § 3C1.1 enhancement on such
conduct because it did not occur "during the course of the
investigation, prosecution or sentencing" of the offense of
which he was ultimately convicted, but, rather, during the
course of the investigation of a separate case. We cannot find
plain error. Had Elion raised the matter below, then presumably
the record might have been developed to show whether, at the
time Elion committed one or more of acts found to be
obstructive, the investigation into the Nigerian scheme had
expanded to include Elion and conduct relevant to the offense of
conviction. Since these factual questions could have been
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resolved by the district court had Elion presented this
argument, we cannot find plain error. See United States v.
Olivier-Diaz, 13 F.3d 1, 5-6 (1st Cir. 1993) ("Where the error
defendant asserts on appeal depends upon a factual finding the
defendant neglected to ask the district court to make, the error
cannot be 'clear' or 'obvious' unless the desired factual
finding is the only one rationally supported by the record
below"); United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991)
("Questions of fact capable of resolution by the district court
upon proper objection at sentencing can never constitute plain
error").
The government's motion for summary disposition is granted.
The judgment is affirmed. See Loc. R. 27(c).
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