USCA1 Opinion
October 15, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1639
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN L. ST. CYR,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Boyle,* District Judge.
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Jeffrey D. Clements, with whom Jensen Baird Gardner & Henry
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was on brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
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with whom Richard S. Cohen, United States Attorney, and Jonathan
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R. Chapman, Assistant United States Attorney, were on brief, for
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appellee.
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*Chief Judge, United States District Court for the District of
Rhode Island, sitting by designation.
SELYA, Circuit Judge. After twice visiting a famed New
SELYA, Circuit Judge.
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England clothier and successfully exchanging stolen sweaters for
cash, defendant-appellant John L. St. Cyr botched his third
attempt. Confronted with the irrefragable threads of his
criminality, St. Cyr pled guilty to two counts of possessing
stolen property (each count representing a successful exchange).
Although the two offenses occurred only four months apart, the
federal sentencing guidelines intervened.1 Appellant received a
pre-guidelines sentence on the first count (two years) and a
concurrent guideline-driven sentence on the second count
(fourteen months). He will be eligible for parole on the two-
year sentence after approximately eight months. No parole is
possible on the other sentence.
St. Cyr appeals the lower court's judgment in its
entirety. We affirm with respect to the first count. However,
after studying the district court's construction of U.S.S.G.
2B1.2(b)(4)(A), a guideline never before interpreted by this
court, we vacate the sentence imposed on the second count and
remand for resentencing on that count. The yarn follows.
I. FACTS
I. FACTS
In late 1986, thieves snatched a trailer load of pre-
labelled sweaters and dresses bound for two retail clothing
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1All references herein are to the sentencing guidelines in
effect on the date appellant was sentenced, May 21, 1992. See
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United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir.
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1990) ("Barring any ex post facto problem, a defendant is to be
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punished according to the guidelines in effect at the time of
sentencing.") (citing 18 U.S.C. 3553(a)(4)).
2
stores. The trailer soon reappeared in Methuen, Massachusetts.
By then, it was under the apparent control of Thomas Flaherty.
Flaherty sold most of the loot to Francis McKay, the proprietor
of A & M Auto Wholesalers, Lawrence, Massachusetts (and, in that
capacity, St. Cyr's employer).
In time, appellant bought twenty-two stolen sweaters
from McKay.2 He divided the sweaters into three roughly equal
groups and "returned" them to an affected retailer, L.L. Bean
Co., requesting that Bean "refund" the retail price. Appellant
received $399.20 in refunds for the first two batches of
sweaters. On his third attempt, a store employee refused to give
him cash and asked him for a mailing address. Police traced the
address and confronted St. Cyr. He confessed.
II. THE SENTENCE ON COUNT I
II. THE SENTENCE ON COUNT I
In what amounts to a passing reference, St. Cyr
suggests that his sentence on count I was "plainly unreasonable"
and should be vacated. We refuse to give this point substantive
consideration for two reasons. First, Congress created appellate
jurisdiction with respect to "plainly unreasonable" criminal
sentences on December 7, 1987, and made the grant of jurisdiction
applicable only to criminal acts committed after that date. See
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Sentencing Act of 1987, Pub. L. No. 100-182, 26, 101 Stat.
1266, 1272 (1987), codified at 18 U.S.C. 3742(a)(4) (1988).
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Count I targets St. Cyr's first trip to L.L. Bean. That trip
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2There is some confusion in the record as to whether St. Cyr
bought the sweaters on two or three different occasions.
3
took place in October of 1987. Hence, section 3742(a)(4) does
not avail him here.
Second, appellant has offered no meaningful rationale
as to why the sentence imposed on count I was unreasonable or
otherwise defective. It is settled in this circuit that "issues
adverted to on appeal in a perfunctory manner, unaccompanied by
some developed argumentation, are deemed to have been abandoned."
Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990); accord
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United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert.
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denied, 494 U.S. 1082 (1990). That principle is fully apposite
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here.
III. THE SENTENCE ON COUNT II
III. THE SENTENCE ON COUNT II
With reference to count II, the base offense level
(BOL) applicable to the offense of conviction was four. See
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U.S.S.G. 2B1.2(a). The district court elevated the BOL by one
level because the value of the twenty-two sweaters was $572.70.
See U.S.S.G. 2B1.1(b)(1)(B), 2B1.2(b)(1) (directing a one-
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level increase for goods worth more than $100 but less than
$1000). The court added four more levels because St. Cyr was "in
the business of receiving and selling stolen property . . . ."
U.S.S.G. 2B1.2(b)(4)(A). The court explained that it utilized
the four-level enhancement because it "infer[red] that from [St.
Cyr's] willingness and [the] easy manner in which he came into
participation in this [affair] . . . he was a person predisposed
in buying and selling stolen property." Finally, the court made
two offsetting adjustments. It went up two levels for
4
obstruction of justice, see U.S.S.G. 3C1.1, and down two levels
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for role in the offense. See U.S.S.G. 3B1.2(b) (adjustment for
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minor participation).
Given St. Cyr's checkered past, these calculations
resulted in a guideline range of 8-14 months. See U.S.S.G. Ch.
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5, Pt. A (sentencing table) (offense level 9; criminal history
category III). The judge imposed the maximum authorized sentence
within the range. On appeal, St. Cyr challenges the four-level
enhancement for being "in the business of receiving and selling
stolen property" and the two-level enhancement for obstruction of
justice.
A. Standard of Review.
A. Standard of Review.
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Appellate review of a district court's application of
the sentencing guidelines is ordinarily a dichotomous process.
First, the court of appeals determines de novo the reach of the
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relevant guideline to ascertain whether it applies in a given
case. See, e.g., United States v. Tardiff, 969 F.2d 1283, 1289
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(1st Cir. 1992); United States v. Connell, 960 F.2d 191, 197 (1st
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Cir. 1992). Once the court of appeals has defined the
guideline's meaning and scope, it reviews the sentencing court's
factfinding only for clear error. See United States v. David,
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940 F.2d 722, 739 (1st Cir. 1991), cert. denied, 112 S. Ct. 2301
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(1992); see also 18 U.S.C. 3742(e) (1988). Accordingly, we
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cede no deference to the district court's legal conclusion that a
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defendant's inferred predisposition toward fencing activities
5
brings him within the ambit of section 2B1.2(b)(4)(A).3
B. The Four-Level Enhancement.
B. The Four-Level Enhancement.
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1. The "Fencing Business" Requirement. The master
1. The "Fencing Business" Requirement.
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guideline for "receiving, transporting, transferring,
transmitting, or possessing stolen property," U.S.S.G. 2B1.2
(excess capitalization omitted), starts at a BOL of four. The
guideline directs the district court to increase the offense
level in a variety of circumstances. Section 2B1.2(b)(4)(A)
limns one such circumstance, mandating a four-level increase if
"the offense was committed by a person in the business of
receiving and selling stolen property . . . ." The Sentencing
Commission explains this enhancement which we shall call the
"in-the-business" or "ITB" enhancement on the basis that, when
persons receive stolen property for resale, "the amount of
property is likely to underrepresent the scope of their
criminality and the extent to which they encourage or facilitate
other crimes." U.S.S.G. 2B1.2, comment. (backg'd). As with
any other upward adjustment under the sentencing guidelines, the
government bears the burden of establishing that the ITB
enhancement applies in a given case. See, e.g., United States v.
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Sklar, 920 F.2d 107, 110 (1st Cir. 1990); United States v. Unger,
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915 F.2d 759, 761 (1st Cir. 1990), cert. denied, 111 S. Ct. 1005
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3The government suggests that United States v. Russell, 913
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F.2d 1288 (8th Cir. 1990), cert. denied, 111 S. Ct. 1687 (1991),
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imports a more deferential standard of review. We reject this
suggestion. While the Russell court was admittedly hazy about
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the precise standard of review, the court's basic holding was
that "factual findings . . . will not be upset unless clearly
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erroneous." Id. at 1294 (emphasis supplied).
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6
(1991).
There is a dearth of authority concerning the scope of
section 2B1.2(b)(4)(A) and the guidelines are silent on the
meaning of the pivotal phrase: "in the business of . . . ." We
have never spoken to section 2B1.2(b)(4)(A). Courts outside our
circuit have dealt with the provision sparingly.
The government urges that we need not look beyond the
background commentary, quoted supra p. 6, to resolve the
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essential meaning of the section 2B1.2(b)(4)(A). The
commentary's motivating purpose is apparent. An underworld
business causes greater community blight than an intermittently
criminal individual. Nonetheless, the commentary leaves more
specific issues unresolved; taken literally, it proves too much.
For one thing, facilitation of other crime and
underrepresentation of criminal activity are probably present
whenever stolen property is bought or sold. Like any market, the
black market's efficiency is generally proportional to the number
of buyers and sellers that enter it. Thus, even purchasers of
stolen goods who never sell and sellers of stolen goods who never
purchase can strengthen the black market and thereby facilitate
other crime.
For another thing, individuals convicted of any crime
not just those who deal in stolen property are often presumed
to have committed or supported other, non-charged, offenses.
Indeed, this presumption is thought to be so strong that Fed. R.
Evid. 404(b) prohibits the introduction into evidence of a
7
defendant's prior acts to show his criminal predisposition. It
is almost always possible to argue that the conduct for which a
defendant has been convicted is likely to underrepresent his
entire criminal career or his contribution to a general
subculture of criminality. There is no sound basis on which
trafficking in stolen property, per se, can be singled out in
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this respect.
Finally, and perhaps most tellingly, it would be
senseless to presume that the enhancement identifies exactly the
same conduct as the base offense itself. If the Sentencing
Commission wished to ensure stiffer sentences for all those who
receive and sell stolen property, it could have simply raised the
base offense level. There must, then, be a limiting principle
beyond simply facilitation or underrepresentation of criminal
activity some smaller subclass to which the enhancement refers.
We think this is what the Sentencing Commission intended.
To state this conclusion does not, however, determine
the end result. A few courts have suggested the possibility of
restricting the guideline to so-called professional fences. See,
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e.g., United States v. Esquivel, 919 F.2d 957, 960 (5th Cir.
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1990). Notwithstanding that professional fences are essentially
black market speculators who ease the buying and selling of
stolen goods by simplifying market entrance for supplies of
stolen property, we do not believe that focusing on them is
necessarily a step forward. Defining the term "professional
fence" is as chancy as defining the language of the guideline
8
itself.
We conclude that there is no bright line that separates
defendants who are "in the business" of dealing in stolen
property from those who are not so engaged. Therefore, in
mulling whether to impose the ITB enhancement, the sentencing
judge must undertake a case-by-case approach, weighing the
totality of the circumstances, with particular emphasis on the
regularity and sophistication of a defendant's operation, in
order to determine whether a defendant is "in the business" of
receiving and selling stolen property.
We think this assessment fits harmoniously with the
Commission's likely rationale and with the decisions of those few
circuit courts that have addressed the meaning of section
2B1.2(b)(4)(A). Despite the differences in analytic approach,
these courts, either implicitly or explicitly, judge whether a
defendant was engaged in the business of buying and selling
stolen property by surveying the overall circumstances and
studying the permissible inferences that can be drawn therefrom.
See, e.g., United States v. Connor, 950 F.2d 1267, 1275 (7th Cir.
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1991) (stressing the importance of past criminality to an ITB
determination); Esquivel, 919 F.2d at 960 (assessing the
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characteristics of defendant's fencing operation and finding it
sufficiently businesslike); United States v. Braslawsky, 913 F.2d
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466, 466 (7th Cir. 1990) (finding that the defendant was not "in
the business" where he sold only goods that he, himself, had
stolen).
9
2. Pertinent Considerations. Under the approach we
2. Pertinent Considerations.
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endorse today, a district court should weigh a number of
circumstances in its effort to determine whether the ITB
enhancement applies in a particular instance. The most important
factor is likely to be the regularity of the defendant's dealings
in stolen merchandise. In searching for evidence of regularity,
we do not suggest that selling stolen property must be the
dominant source of a defendant's income before his felonious
activities become sufficiently prominent to be regarded as a
business. See, e.g., Esquivel, 919 F.2d at 960 & n.4 (concluding
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that an ITB enhancement was appropriate for a defendant who
earned 25% of his total income from selling stolen property).
Nevertheless, a sentencing court can certainly consider evidence
about the amount of income generated through fencing activities,
the defendant's past activities, his demonstrated interest in
continuing or expanding the operation, and the value of the
property handled. Where there is no indication either of a
pattern of dealing in stolen property or of a developed operation
that promises such consistency for the future, the defendant is
unlikely to be "in the business." See Connor, 950 F.2d at 1275
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(noting in dictum that only those persons "who have previously
engaged in significant illegal conduct which is similar" to
fencing will merit a section 2B1.2(b)(4)(A) enhancement). But
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cf. Esquivel, 919 F.2d at 957 (implicitly rejecting a regularity
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requirement in finding a new, but very sophisticated, fencing
operation to be a business).
10
We envision a useful parallel between U.S.S.G.
2B1.2(b)(4)(A) and another guideline which allows an ITB
enhancement. An individual convicted of tax fraud rates an
upward adjustment in his offense level if the individual is "in
the business of preparing or assisting in the preparation of tax
returns . . . ." U.S.S.G. 2T1.4(b)(3). The enhancement
applies to those people who "regularly act" as tax preparers or
advisers. See id., comment. (n.3). Indeed, regularity of
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conduct is one universal thread in virtually all legal
definitions of business. See, e.g., United States v. Muskovsky,
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863 F.2d 1319, 1327 (7th Cir. 1988) (construing the phrase
"business enterprise" in the Travel Act, 18 U.S.C. 1952), cert.
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denied, 489 U.S. 1067 (1989). United States v. Lignarolo, 770
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F.2d 971, 979 (11th Cir. 1984) (construing a similar phrase in
respect to the RICO statute, 18 U.S.C. 1961-1968), cert.
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denied, 476 U.S. 1105 (1986); United States v. Van Buren, 593
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F.2d 125, 126 (9th Cir. 1979) (observing that business
necessitates "activity . . . greater than the occasional sales").
In those contexts, courts have insisted that more than isolated,
casual, or sporadic activity be shown before a business is found
to exist.4
Citing Esquivel, 919 F.2d 957, the government argues
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4On several other occasions, the guidelines use the term
"business" without commenting on its meaning. See, e.g.,
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U.S.S.G. 2E3.1 (discussing defendant's engagement in a gambling
business); U.S.S.G. 2B6.1(b)(2) (discussing an enhancement for
being "in the business of receiving and selling" stolen motor
vehicles or parts).
11
that regularity is a sufficient, but not always necessary,
condition for the ITB enhancement. In that case, the defendant,
Esquivel, purchased 350 pairs of stolen shoes. He quickly
installed an elaborate fencing operation, e.g., renting a
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warehouse to store the shoes, carrying a telephone pager so that
his customers could keep in touch with him, and the like. He
also implemented a sale-by-consignment system and hired a
deliveryman. He did not make casual or isolated sales. Id. at
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961. The Fifth Circuit concluded that, regardless of whether
Esquivel had a history of fencing activities, his operation was
sufficiently organized and complex that the district court could
supportably have found him to be "in the business" of selling
stolen goods for purposes of section 2B1.2(b)(4)(A). Id. at 960.
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We agree that the sophistication of the defendant's
operation is a second circumstance that may itself indicate
business conduct. We can easily imagine situations in which a
fencing business, although very much a business, has been
recently launched and therefore traces no historical pattern. In
order to distinguish a new-to-the-business fence from an amateur,
however, the government must at least offer a meaningful proxy
for regularity, say, by showing that the operation crossed a
threshold of sophistication and commitment.
3. Applying the Criteria. On this sparse record, the
3. Applying the Criteria.
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district court could not plausibly find either regularity or
sophistication. The record is barren of any indication that St.
Cyr had conducted other fencing operations. His three jaunts to
12
L.L. Bean do not suggest regularity to the degree necessary to
constitute a business. By the same token, his operation was
primitive: he had no elaborate communication or distribution
system, he did not employ assistants, he did not maintain a
sizable inventory of stolen goods. Of course, had St. Cyr not
been apprehended, he might have continued to ply his fraudulent
sweater-return scheme. At some point, the scheme might have
become sufficiently institutionalized to meet the ITB
requirement. But here, the district court largely negated this
possibility, finding St. Cyr to be responsible, for relevant
conduct purposes, see U.S.S.G. 1B1.3(a), only for those twenty-
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two sweaters that he actually purchased from McKay, not for the
entire shipment of stolen merchandise.
We will light no more candles on this cake. The
government has simply not produced a quantum of evidence
sufficient to show, by any reasonable standard, that appellant
was engaged in a business.5 In the absence of any indication
that St. Cyr had installed or was developing a systematic
operation that would regularly fence stolen property, we find his
casual trafficking in sweaters insufficient, in the totality of
the circumstances, to justify an enhancement under U.S.S.G.
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5The district court rested its determination that St. Cyr's
activities constituted a business on what the court saw as his
predisposition to deal in stolen property. While we do not
dispute the court's conclusions anent St. Cyr's moral fiber (or
lack thereof), his predisposition, without more, is not legally
relevant to the appropriateness of a section 2B1.2(b)(4)(A)
enhancement. Whether a defendant is engaged in business within
the meaning of the sentencing guidelines is a test of conduct,
not character.
13
2B1.2(b)(4)(A).
C. Obstruction of Justice.
C. Obstruction of Justice.
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Appellant asserts that the district court incorrectly
applied a two-level enhancement for obstruction of justice en
route to establishing the sentencing range for count II. The
relevant guideline reads:
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 district court found that appellant's
conduct warranted an upward adjustment under this guideline
because he "provid[ed] materially false information to a
probation officer in respect to a presentence . . . investigation
for the court." U.S.S.G. 3C1.1, comment. (n.3(h)).
The pivotal facts are these. Following St. Cyr's
guilty plea, a probation officer interviewed him in the course of
compiling the presentence report. In recounting his prior
criminal record, St. Cyr did not mention three Massachusetts
larceny convictions that occurred in 1978. He also failed to
inform the officer that he pled guilty less than a year earlier
to having falsely uttered a check. Although these omissions were
eventually rectified, the officer testified that St. Cyr's
failure to provide a complete record of his prior convictions
resulted in a substantial delay in completing the presentence
report.
St. Cyr's first argument is that his omissions should
14
not be penalized because they caused no actual prejudice to the
government. But, this protest overlooks the milieu in which the
omissions occurred. Presentence reports are important
ingredients of the sentencing process and, thus, vital to the
administration of the criminal justice system. Hence, a
defendant has a solemn obligation to be forthcoming with a
probation officer to ensure that the court receives complete,
accurate information. Providing materially false information to
a probation officer in respect to a presentence report is
culpable and can constitute obstruction of justice even absent a
showing of actual prejudice.6 See United States v. Dedeker, 961
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F.2d 164, 167 (11th Cir. 1992); United States v. Baker, 894 F.2d
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1083, 1084 (9th Cir. 1990).
Relying on United States v. Tabares, 951 F.2d 405 (1st
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Cir. 1992), appellant also asseverates that the government did
not prove materiality. In Tabares, a codefendant, Ramirez,
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relayed an inaccurate social security number in the course of the
presentence investigation. The district court went up two levels
for obstruction. We reversed. Id. at 411-12. We noted there
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was no evidence that Ramirez willfully lied about his social
security number. Id. at 411. We then theorized that, even if
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6For this reason, St. Cyr's repeated citation of cases
falling outside the ambit of Application Note 3(h) do not assist
his cause. Most of these authorities involve preconviction
statements made to law enforcement officers. Such statements
invoke Application Note 3(g) and require a showing that the
falsehood "significantly obstructed or impeded the official
investigation or prosecution . . . ." U.S.S.G. 3C1.1, comment.
(n.3(g)). Application Note 3(h) contains no such requirement.
15
Ramirez had prevaricated, his statement could not have impeded
the investigation in any material way because Ramirez had been
using the same incorrect number for several years. Id.
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The case at bar is easily distinguishable. Unlike in
Tabares, the criminal history that St. Cyr omitted was material
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on its face. See, e.g., U.S.S.G. 3C1.1, comment. (n.5)
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(defining "material . . . information" as "information that, if
believed, would tend to influence or affect the issue under
determination"). Under the guidelines, sentencing ranges rest in
substantial part upon a defendant's criminal history. Bearing in
mind that the test of materiality for purposes of Application
Note 3(h) is not a stringent one, see, e.g., Dedeker, 961 F.2d at
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167, we do not hesitate to hold that a defendant's concealment of
important information about his criminal record is a material
omission for purposes of U.S.S.G. 3C1.1. See id.; accord
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United States v. Delgado, 936 F.2d 303, 306 (7th Cir. 1991),
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cert. denied, 112 S. Ct. 972 (1992).
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This brings us to appellant's third, and last,
exhortation: that the district court erred in branding his
omissions as willful. While we review questions addressing the
scope of U.S.S.G. 3C1.1 de novo, see United States v. Manning,
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955 F.2d 770, 774 (1st Cir. 1992), we are called upon here to
oversee the inferences the court drew from St. Cyr's conduct and
from the witnesses' credibility. Factbound determinations of
this sort are reviewable only for clear error. See United States
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v. Akitoye, 923 F.2d 221, 229 (1st Cir. 1991).
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16
St. Cyr argued to the district court that his omissions
were inadvertent; he had simply forgotten about his previous
convictions under the stress of the moment. On that basis, he
claimed that his failure to provide a complete record of his
criminal past was not willful. The district court listened to
St. Cyr testify on this point and "specifically [did] not find
that . . . [his] testimony [was] persuasive and credible with
respect to his version of those circumstances." The court also
heard from the probation officer, who provided a markedly
different account of the interview and of St. Cyr's later
reaction to the officer's independent discovery of the
unmentioned convictions. In the end, the court found that St.
Cyr had intentionally misled the probation officer by omitting
several convictions from his criminal history; and that, as a
result,the preparationofthepresentencereportwasneedlesslydelayed.
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. There is no
legitimate reason to do so here.7 Thus, this issue assumes a
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7U.S.S.G. 3C1.1, comment. (n.1) suggests that, in applying
the obstruction-of-justice guideline, the defendant's "testimony
or statements should be evaluated in a light most favorable to
[him]." St. Cyr says that the proper application of this
language requires that all evidentiary conflicts be resolved in
favor of the defendant. We have held many times, however, that
the Sentencing Commission did not mean to give defendants so
dazzling a prize. See United States v. Torres, 960 F.2d 226, 228
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(1st Cir. 1992); United States v. Brum, 948 F.2d 817, 819 (1st
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Cir. 1991); United States v. Rojo-Alvarez, 944 F.2d 959, 969 (1st
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Cir. 1991); United States v. Aymelek, 926 F.2d 64, 68 (1st Cir.
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1991); Akitoye, 923 F.2d at 228-29. Rather, the language means
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that, in a borderline case one where the judge, after
scrutinizing the evidence, has no firm conviction one way or the
17
familiar cast: when there are two plausible views of the record,
the sentencing court's adoption of one such view cannot be
clearly erroneous. See United States v. Ruiz, 905 F.2d 499, 508
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(1st Cir. 1990). The obstruction-of-justice enhancement must
stand.
IV. CONCLUSION
IV. CONCLUSION
We need go no further. The defendant's convictions are
affirmed, as is his sentence on count I. But, because the
district court incorrectly applied the guideline enhancement for
those in the business of dealing in stolen property, we vacate
the sentence imposed on count II and remand for resentencing in
accordance with this opinion.
Affirmed in part; vacated in part; remanded.
Affirmed in part; vacated in part; remanded.
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other the defendant should be given the benefit of the doubt.
In light of the district court's emphatic findings, the quoted
language has no applicability here.
18