United States Court of Appeals
For the First Circuit
No. 95-2308
UNITED STATES OF AMERICA,
Appellee,
v.
CRAIG J. CLARK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
Kevin E. Buchholz, with whom Bianco, P.A., was on brief, for
appellant.
Peter E. Papps, First Assistant United States Attorney, with
whom Paul M. Gagnon, United States Attorney, was on brief, for
the United States.
May 30, 1996
LYNCH, Circuit Judge. The kidnapping at knife point
of a young New Hampshire woman by defendant Craig Clark and
others resulted in Clark ultimately pleading guilty to two
federal charges: conspiracy to interfere with and
interference with interstate commerce by threats of violence,
both in violation of 18 U.S.C. 1951. This is Clark's
second trip to this court on his sentence. He was successful
before, and now finds, to his chagrin, that his new sentence
is higher than the one that was overturned in his first
appeal.
In United States v. Clark, 55 F.3d 9 (1st Cir. 1995),
this court vacated Clark's original 188 month sentence and
remanded for resentencing before a new judge on grounds that
the government had not kept its end of the plea agreement.
Clark now appeals from the 223 month sentence imposed on
resentencing by the second sentencing judge after remand.
Relying on the Supreme Court's decision in North
Carolina v. Pearce, 395 U.S. 711 (1969), Clark argues that
the district court's imposition of a prison term on
resentencing that was more severe than the sentence vacated
on appeal effectively punishes him for exercising his right
to appeal and violates his right to due process of law. He
also contends that the district court erred in enhancing his
sentence based on a determination that he had obstructed
justice by suborning perjury and making false statements to
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his probation officer. The decisions of the Supreme Court
and this court interpreting the holding of Pearce doom
Clark's first attack. His second attack is without merit on
the law and the facts. We affirm.
I
In Pearce, the Supreme Court held that a court
violates the Due Process Clause when it imposes a heavier
sentence upon a reconvicted defendant for the purpose of
penalizing the defendant for having successfully appealed
from his original conviction. See id. at 723-24. As a
prophylactic measure, the Court created a "'presumption of
vindictiveness' . . . which is triggered whenever the same
judge imposes a more severe sentence upon a defendant after
retrial." Johnson v. Vose, 927 F.2d 10, 11 (1st Cir. 1991)
(quoting United States v. Goodwin, 457 U.S. 368, 374 (1982)).
However, the "presumption of vindictiveness" does not arise
in every case in which a defendant receives a greater
sentence the second time around. Texas v. McCullough, 475
U.S. 134, 138 (1986). As the Court said in McCullough,
"vindictiveness of a sentencing judge is the evil the Court
sought to prevent rather than simply enlarged sentences after
a new trial." Id. Thus, the presumption of vindictiveness
created by Pearce arises only when "there is a 'reasonable
likelihood' . . . that the increase in sentence is the
product of actual vindictiveness on the part of the
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sentencing authority." Alabama v. Smith, 490 U.S. 794, 799
(1989) (citation omitted).
The Pearce presumption does not arise where "different
sentencers assessed the varying sentences that [defendant]
received." McCullough, 475 U.S. at 140; see also Hurlburt v.
Cunningham, 996 F.2d 1273, 1275 n.2 (1st Cir. 1993) (per
curiam) ("Our research indicates that decisions by the
circuit courts of appeals after McCullough have uniformly
held that the Pearce presumption does not apply to the two-
sentencer situation."). In this case, the defendant's second
sentence was imposed by a different judge. Thus, no
presumption of vindictiveness arises. Absent such a
presumption, the defendant cannot prevail on his due process
claim unless he demonstrates "actual vindictiveness."
Johnson, 927 F.2d at 11.
Clark falls far short. He argues that vindictiveness
should be inferred because the New Hampshire federal district
court has only four judges and is a small court. Neither
logic nor experience warrants any such inference. Further,
he says, an increased sentence may not be imposed without
additional findings to support the increase. Pearce implies
no such requirement. The second trial judge heard all of the
sentencing evidence anew and made findings adequate to
support the sentence imposed, which was within the range
prescribed by the Guidelines. The length of a sentence
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vacated on appeal does not automatically function as a cap on
the term of imprisonment that can be imposed on resentencing.
One of the risks of appealing a sentence is that a different
judge, on remand, may take a different view of the facts (or
the law) relevant to the required Guidelines findings, a view
less favorable to the defendant. We note that Clark makes no
argument that the second sentencing judge misapplied the
Guidelines (aside from his assertion of error as to the
obstruction-of-justice enhancement, which we reject below).
There is no basis in the record for a finding of
vindictiveness. Cf. McCullough, 475 U.S. at 140 (no
vindictiveness where "second sentencer provides an on-the-
record, wholly logical, nonvindictive reason for the
sentence").
II
Under 3C1.1 of the Guidelines, the sentencing judge
is directed to increase the offense level by two "[i]f 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." U.S.S.G. 3C1.1 (Nov. 1993).1 Clark argues that
the district court erroneously enhanced his sentence based on
this provision. A brief description of the facts underlying
1. The district court apparently applied the 1993 version of
the Guidelines. The current version of 3C1.1 is the same.
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the district court's obstruction of justice finding sets the
stage for resolution of Clark's claim.
After his arrest and prior to his arraignment, Clark
apparently hatched the thought that if the district court
could be persuaded that the victim herself had been involved
in the scheme to kidnap and hold her for ransom, the
defendants would either receive more lenient sentences or
"all walk away scott [sic] free." In order to make the story
-- which had no basis in fact -- stick, he had to convince
his co-defendants to keep to the story line when they
testified. That is exactly what he tried to do while in the
U.S. Marshal's lockup. Clark's co-defendants, however,
refused to go along with his fabrication and told the
probation officer of Clark's efforts to induce them to lie to
the court. When the probation officer asked Clark about the
scheme, he denied it and claimed that his co-defendants must
have misunderstood him or were lying. The probation officer
included this information in the Pre-Sentence Report and
recommended that Clark's conduct be found to constitute
obstruction of justice and that he be denied any credit for
acceptance of responsibility.
After hearing testimony from Clark's two co-defendants
that Clark had tried to induce them to lie to the court, the
district court increased Clark's offense level from 34 to 36
pursuant to U.S.S.G. 3C1.1. This enhancement had the
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effect of increasing his Guidelines sentencing range from
151-188 months to 188-235 months. Clark contends that the
district court committed three errors: that the court should
not have applied the preponderance-of-the-evidence standard
with respect to its finding that Clark obstructed justice;
that the court failed to view his testimony in the light most
favorable to him; and that (in light of the first two points)
the court's finding of obstruction was clearly erroneous.
On the first point, Clark appears to argue that if he
had been separately charged with the crime of suborning
perjury and been convicted of that crime (as well as the
crimes of which he was actually convicted) by proof beyond a
reasonable doubt, he would have received a lesser sentence
than he received as a result of the obstruction of justice
being considered at sentencing. From this, he contends that
due process required the government to prove the facts
underlying the 3C1.1 enhancement beyond a reasonable doubt.
The argument is doubly flawed. First, Clark's premise is
presented without any effort to elaborate its basis under the
Guidelines and is far from obviously true. Second, precedent
disposes of his argument that anything but a preponderance-
of-the-evidence standard governs the district court's
factfinding at sentencing. See, e.g., United States v.
Lombard, 72 F.3d 170, 175-76 (1st Cir. 1995); United States
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v. Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir. 1994); United
States v. Mocciola, 891 F.2d 13, 17 (1st Cir. 1989).
Clark's second argument rests on his reading of
application note1 to 3C1.1. Thatapplication note provides:
In applying [ 3C1.1] in respect to alleged
false testimony or statements by the defendant,
such testimony or statements should be evaluated
in a light most favorable to the defendant.
U.S.S.G. 3C1.1, comment. (n.1). Clark argues that this
instruction required the district court to credit Clark's
version of the events (that his co-defendants were lying or
misunderstood him) over the testimony of the co-defendants as
described in the PSR and given at the sentencing hearing.
But the application note cannot mean, as Clark
apparently would have it, that the court must resolve all
factual or testimonial disputes in favor of the defendant.
Nor does it require the district court, in deciding whether
an obstruction of justice occurred, to accept a defendant's
self-serving denials over the testimony of other witnesses it
finds more credible. See United States v. Tracy, 36 F.3d
199, 203-04 (1st Cir.), cert. denied, 115 S. Ct. 609 (1994);
see also United States v. Akitoye, 923 F.2d 221, 228 (1st
Cir. 1991) ("Were that so, the safeguard [of application note
1] would swallow the rule in a single gulp."); United States
v. Franco-Torres, 869 F.2d 797, 801 (5th Cir. 1989) (such a
reading "would effectively enable every defendant to nullify
its application by self-serving testimony").
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Indeed, the plain language of the application note is
not nearly so broad as to permit Clark's reading. The note's
instruction is specifically limited to the application of
3C1.1 "in respect to alleged false testimony or statements
by the defendant" and provides that only "such testimony or
statements" should receive the benefit of a defendant-
favorable light. U.S.S.G. 3C1.1, comment. (n.1) (emphases
added).2 We understand this language to mean that if the
defendant is alleged to have obstructed justice by means of
false testimony or statements, and if such testimony or
statements encompass genuine ambiguities that plausibly
suggest that the testimony or statements were innocent as
opposed to obstructive, then those ambiguities may have to be
resolved in favor of the innocent reading. See Tracy, 36
F.3d at 204 (quoting United States v. Crousore, 1 F.3d 382,
385 (6th Cir. 1993)). As this court has recently said:
[The] interpretive principle [contained in
application note 1] only applies to the
construction of allegedly perjurious language,
not the determination of credibility of fact
witnesses. . . . Furthermore, lenitive
interpretations only apply 'to the extent that
an innocent reading may be plausible.'
2. We find it significant that an earlier version of the
application note provided, more expansively, that "the
defendant's testimony and statements should be evaluated in a
light most favorable to the defendant." U.S.S.G. 3C1.1,
comment. (n.1) (Nov. 1990). In amending the application note
to read as it currently does, the Sentencing Commission
explained that "[t]his amendment more precisely states the
meaning of this commentary." U.S.S.G. App. C, amend. 415
(Nov. 1991).
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United States v. Kelley, 76 F.3d 436, 441 (1st Cir. 1996)
(quoting Tracy, 36 F.3d at 204). In sum, application note 1
requires at most that the district court indulge "lenitive
interpretations" of the defendant's allegedly obstructive
statements to the extent plausible, and only if those
statements are ambiguous. See Tracy, 36 F.3d at 204. It
does not require the district court to avoid a finding of
obstruction by contriving doubt as to the defendant's conduct
where the evidence is otherwise clear, merely because the
defendant denies he did anything obstructive. See id. at
203-04; United States v. Rojo-Alvarez, 944 F.2d 959, 969 (1st
Cir. 1991).
Here, there were two aspects of Clark's conduct that
the court found constituted obstruction of justice: his
attempts to induce his co-defendants to lie to the court, and
his statements to the probation officer denying any such
attempts. See U.S.S.G. 3C1.1, comment. (n. 3(b) & 3(h)).
We review the district court's factual findings underlying
the 3C1.1 enhancement only for clear error. See Akitoye,
923 F.2d at 229.
As to Clark's attempt to suborn perjury, the lenitive
interpretive principle of application note 1 is inapposite,
as that conduct did not strictly consist of the making of
false statements. The district court explicitly found the
testimony of Clark's co-defendants regarding Clark's conduct
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to be credible, notwithstanding Clark's denials.3 We cannot
say that the court's finding was clearly erroneous.
As for Clark's allegedly false statements to the
probation officer, there was nothing ambiguous about them.
There is no dispute that Clark made those statements. Once
the district court found that Clark had in fact attempted to
induce his co-defendants to perjure themselves, it clearly
did not err in finding that Clark's denials to the probation
officer constituted obstruction of justice for purposes of
3C1.1.
Affirmed.
3. The fact that the co-defendants did not recall the
precise language Clark used in his entreaties to them does
not undercut that finding.
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