[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________________________U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 15, 2006
No. 05-10797
_____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00031 CR-RH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL MCGUINNESS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 15, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and FAY, Circuit Judges.
PER CURIAM:
Defendant Daniel McGuinness plead guilty to escape and was sentenced to
24 months’ imprisonment, 3 years’ supervised release, and a $4,000 fine.
Defendant appeals his sentence, arguing that the two-level sentence enhancement
for “obstruction of justice” provided by United States Sentencing Guidelines
section 3C1.1 should not be applied where the underlying offense is escape.
Defendant also challenges the district court’s imposition of a $4,000 fine despite
Defendant’s alleged inability to pay. We affirm.
I. Background
In 1981, Defendant was convicted of various federal drug crimes. Soon
after his conviction, Defendant escaped from jail; he was apprehended in
December 1983. Defendant attempted a second escape in 1990, but was
unsuccessful. Based on these offenses, Defendant’s tentative release date was July
2003. In April 2003, Defendant was released from the Nevada State Prison in
Carson City, Nevada -- where he had been incarcerated as a federal inmate -- and
was given a plane ticket to make an unescorted furlough transfer to Tallahassee,
Florida, to complete his sentence in a community corrections center. Defendant
failed to report as directed.
In June 2004, officers approached Defendant at a restaurant in Bristol,
Virginia, based on a tip that he was a federal fugitive. Defendant presented a
Tennessee driver’s license that identified him as Ted Stocko and claimed he was
2
staying at the Holiday Inn. Police released Defendant after they ran the name Ted
Stocko through their database and checked with a U.S. Marshal but found no
outstanding warrants. Several hours later, after an investigation revealed that no
one named Ted Stocko was staying at the Holiday Inn, police conducted a traffic
stop of the vehicle Defendant was supposed to be driving. Sauna Sharma was
alone in this vehicle, but Sharma admitted he had been traveling with a man
named Daniel McGuinness. Police ran the name Daniel McGuinness through their
database and discovered a warrant for his arrest. Sharma identified Defendant’s
picture and provided police with a key to Defendant’s hotel room. Defendant was
not in the hotel room when police arrived.
Approximately fifty officers from the FBI, ATF, U.S. Marshal Service,
state, county, and local agencies joined in the search that led to Defendant’s
apprehension a little over 24 hours after his encounter with police at the restaurant.
The officers used a tracking dog, helicopter, and the cooperation of two of
Defendant’s acquaintances to locate Defendant, who was hiding in the woods near
his hotel, carrying $12,589 in cash. Three suitcases containing 86 pounds of
marijuana were found 75 yards from Defendant. Defendant, without a plea
agreement, plead guilty to escape. The district court sentenced Defendant to 24
month’s imprisonment, 3 years’ supervised release, and a $4,000 fine. On appeal,
3
Defendant argues that the district court erred by (1) including a two-level sentence
enhancement for obstruction of justice in the calculation of his guideline sentence
range, and (2) imposing a fine that exceeds Defendant’s ability to pay.
II. Discussion
A. Obstruction-of-Justice Sentence Enhancement
We review the district court's factual findings for clear error and the court’s
application of the sentencing guidelines to the facts de novo. United States v.
Bradford, 277 F.3d 1311, 1312 (11th Cir. 2002). United States Sentencing
Guidelines (U.S.S.G.) section 3C1.1 provides for a two-level sentence
enhancement where "the defendant willfully obstructed or impeded . . . the
administration of justice during the course of the investigation, prosecution, or
sentencing of the instant offense of conviction." The guidelines commentary
provides a non-exhaustive list of conduct to which this enhancement applies,
including this conduct:
(c) producing or attempting to produce a false, altered, or counterfeit
document or record during an official investigation; . . . [or]
4
(g) providing a materially false statement to a law enforcement officer that
significantly obstructed or impeded the official investigation or prosecution
of the instant offense.
U.S.S.G. § 3C1.1 cmt. n.4. The commentary provides a separate list of conduct
which ordinarily does not warrant application of the section 3C1.1 sentence
enhancement, including this conduct:
(a) providing a false name or identification document at arrest, except where
such conduct actually resulted in a significant hindrance to the investigation
or prosecution of the instant offense;
(b) making false statements, not under oath, to law enforcement officers,
unless Application Note 4(g) above [requiring that the false statement
significantly obstructed or impeded the official investigation] applies; . . .
[and]
(d) avoiding or fleeing from arrest; . . .
U.S.S.G. § 3C1.1 cmt. n.5.
The district court determined that Defendant’s provision of false
information to the police officers who approached him in the Virginia restaurant
was a significant hindrance to the official investigation of Defendant’s fugitive
status. During the sentencing hearing, defense counsel objected, arguing that
Defendant’s false statements and identification did not cause a significant
hindrance because it only delayed Defendant’s capture by 24 hours.
5
To establish that Defendant’s conduct resulted in an actual hindrance, “the
government must present evidence of what action it took that it would not have
taken had [defendant]'s identity been known” when Defendant gave false
information. United States v. Banks, 347 F.3d 1266, 1271 (11th Cir. 2003). The
government presented evidence that ultimately a police helicopter, a tracking dog,
and approximately fifty law enforcement officers were used to find Defendant --
resources that would not have been expended if Defendant had been truthful about
his identity when approached in the restaurant. The district court did not err in
concluding that Defendant’s false statements to investigating police officers
created a significant hindrance. The section 3C1.1 sentence enhancement is
applicable to Defendant’s offense under the express terms of application note
4(g).1
Defendant argues that, even if his conduct did create a significant hindrance,
courts should not apply the U.S.S.G. section 3C1.1 obstruction-of-justice sentence
enhancement when the underlying offense is escape. He contends the use of
1
The district court concluded that application notes 4(g) and 5(a) applied. The government
argued that notes 4(g) and 4(c) -- not note 5(a) -- should apply because Defendant’s production of
a false identification document did not occur at arrest, but rather 24 hours before arrest. Note 4(c),
unlike notes 5(a) and 4(g), does not require a showing of significant hindrance. Because we agree
with the district court that Defendant’s obstructive conduct significantly hindered the official
investigation into his fugitive status, we need not decide whether the use of false identification
documents 24 hours before arrest would support a section 3C1.1 enhancement without a showing
of significant hindrance.
6
obstructive conduct to elude capture is inherent in the continuing offense of
escape.2 In United States v. Bradford, 277 F.3d at 1312, we applied a section
3C1.1 obstruction enhancement to the offense of escape where the defendant
attempted to threaten a government witness while awaiting trial.3 Because the
obstructive conduct in Bradford occurred after the defendant was captured, that
case is not dispositive of whether the section 3C1.1 enhancement should be
triggered by obstructive conduct that occurred while the escape was ongoing.4
The guidelines commentary specifically lists offenses to which the section
3C1.1 enhancement should not be applied unless “a significant further obstruction
occurred during the investigation, prosecution, or sentencing of the obstruction
2
See United States v. Bailey, 100 S.Ct. 624, 636 (1980) (holding that escape from federal custody
is a continuing offense).
3
See also United States v. King, 338 F.3d 794, 799-800 (7th Cir. 2003) (applying obstruction
enhancement where defendant committed perjury during trial on escape charges).
4
Defendant argues that escape is analogous to embezzlement. Defendant relies on United States
v. Werlinger, 894 F.2d 1015 (8th Cir. 1990), which said that the obstruction-of-justice sentence
enhancement could not be applied to embezzlement. The Werlinger decision was based in part on
the existence of an embezzlement-specific guideline that provided for a two-level sentence
enhancement where “significant affirmative steps [were] taken to conceal the offense;” the Werlinger
court expressed concerned about applying multiple sentence enhancements to the same conduct
absent a clear directive from Congress. Id. at 1017. This concern is inapplicable to escape, because
escape does not have an offense-specific obstruction enhancement comparable to that in existence
for embezzlement when Werlinger was decided. We further note that -- contrary to Defendant’s
assertions -- this Court did not use reasoning similar to that of Werlinger in United States v.
Kirkland, 985 F.2d 535 (11th Cir. 1993). In Kirkland, our decision to reverse the district court’s
application of the obstruction enhancement to an embezzlement sentence was based solely on our
determination that an internal audit is no “official investigation” within the meaning of U.S.S.G.
section 3C1.1. Id. at 538.
7
offense itself (e.g., if the defendant threatened a witness during the course of the
prosecution for the obstruction offense).” U.S.S.G. § 3C1.1 cmt. n.7. Escape is
not one of these listed offenses.5 And in contrast to two other lists in the
commentary to § 3C1.1, this list of offenses that require a special showing for the
obstruction enhancement to apply does not indicate it is non-exhaustive. Compare
U.S.S.G. § 3C1.1 cmt. n.4, 5, & 7. Because the commentary to section 3C1.1
contains an exclusive list of offenses that the Sentencing Commission chose to
exempt from the obstruction-of-justice enhancement absent a special showing, we
consider it highly unlikely that the Commission intended -- but failed to mention --
that other offenses were entirely exempt from the enhancement.
In addition, escape -- unlike the offenses for which the commentary
specified special treatment -- can be committed and continued without engaging in
conduct expressly covered by U.S.S.G. section 3C1.1.6 The commentary says that
“avoiding and fleeing arrest” will ordinarily not justify an obstruction
enhancement. See U.S.S.G. § 3C1.1 cmt. n.5(d). A defendant could therefore
5
The offenses listed in application note 7 of the commentary are contempt, obstruction of justice,
perjury or subornation of perjury, bribery of witness, failure to appear by material witness, failure
to appear by defendant, payment to witness, accessory after the fact, and misprision of felony.
6
“[E]scaping or attempting to escape from custody before trial or sentencing” ordinarily qualifies
for an obstruction-of-justice enhancement, but the commentary is silent about escape after
sentencing. See U.S.S.G. § 3C1.1. cmt. n.4(e) (emphasis added).
8
avoid application of the obstruction enhancement if he attempted to evade arrest
and to continue his escape solely by staying out of public places and walking or
running away at the sight of police. The use of false identification and statements
is not required to commit escape. But such use makes it more difficult for law
enforcement to locate an escapee than if the escapee is just running.7 We therefore
reject the argument that the offense of escape is exempt from application of the
obstruction-of-justice sentence enhancement; the obstructive conduct penalized by
the enhancement is not inherent in the offense.
U.S.S.G. section 3C1.1 and its commentary provide for a two-level
obstruction-of-justice sentence enhancement where a defendant has made false
statements during an official investigation that significantly hindered the
investigation. The district court correctly applied the section 3C1.1 sentence
enhancement under the facts and circumstances of this case.
7
Defendant argues that providing false statements and identification during an escape are
methods of “avoiding or fleeing from arrest.” But the Sentencing Commission did not intend for
“avoiding or fleeing arrest” to include providing false identification and statements to law
enforcement officers or else the Commission would not have separately addressed this conduct in
application notes 5(a) and (b).
9
B. Fine
The district court imposed a $4,000 fine out of a guideline range of $2,000
to $20,000. Defendant argues that the district court erred by imposing this fine
despite his alleged inability to pay. We review the district court's decision that
Defendant is able to pay the fine for clear error. United States v. Singh, 335 F.3d
1321, 1323 n.1 (11th Cir. 2003). “The court shall impose a fine in all cases,
except where the defendant establishes that he is unable to pay and is not likely to
become able to pay any fine” “even with the use of a reasonable installment
schedule.” U.S.S.G. § 5E1.2(a) & (e)(1). Defendant has the burden of proving
inability to pay. United States v. Hernandez, 160 F.3d 661, 665 (11th Cir. 1998).
At the time of sentencing, Defendant was 59 years old, was in good health,
and had no dependants. Defendant had a General Equivalency Diploma (“GED”),
but had been incarcerated from 1983 to 2003 and had no known employment
history other than drug smuggling. Defendant was adjudged indigent and
appointed counsel for trial and appeal.8 Defendant had $140,000 in liabilities from
8
The guidelines commentary indicates that “the fact that a defendant is represented by (or was
determined eligible for) assigned counsel [is a] significant indicator[] of present inability to pay any
fine. In conjunction with other factors, [it] may also indicate that the defendant is not likely to
become able to pay any fine.” U.S.S.G. § 5E1.2 cmt. n.3.
10
a fine imposed for his 1981 conviction. His only known asset was a claim to
$12,500 cash he was carrying at the time of his arrest. This cash was seized by the
U.S. Marshals for suspected connection to a drug crime, but Defendant claimed he
had hidden the cash before his initial prison term.
The district court concluded that a $4,000 fine was appropriate, because
Defendant “either had money hidden away years ago, or he’s involved in the drug
trade generating additional money.” “Evidence that a defendant has failed to
disclose the existence of assets to the court, may support a determination that the
defendant is able to pay a fine with those undisclosed assets.” United States v.
Rowland, 906 F.2d 621, 624 (11th Cir. 1990); U.S.S.G. § 5E1.2 cmt. n.6. In the
light of the Defendant’s own claim that he had hidden assets before starting to
serve a prison sentence, the district court did not clearly err by concluding that
Defendant failed to establish present and future inability to pay and by imposing a
fine at the low end of the guidelines range.9
The judgment of the district court is AFFIRMED.
9
The cases cited by Defendant are distinguishable. In Rowland, we concluded that a $50,000 fine
was inappropriate because Defendant had a child to support, nothing evidenced hidden assets, and
Defendant only had $8,000 in assets other than the $35,000 seized from his possession when he was
arrested. See 906 F.2d at 624. In United States v. Paskett, 950 F.2d 705, 709 (11th Cir. 1992), we
vacated and remanded a $100,000 fine because the district court had not discussed what factors
justified the fine and the record did not contain sufficient information to allow review of the district
court’s decision.
11