USCA1 Opinion
July 6, 1995 [NOT FOR PUBLICATION]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
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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.
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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 ________
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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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