
USCA1 Opinion

	




          August 27, 1992       [NOT FOR PUBLICATION]                                 ___________________          No. 92-1220                                                UNITED STATES,                                      Appellee,                                          v.                                  ISAO ISADORUS IMA,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ___________________                                        Before                              Torruella, Cyr, and Stahl,                                   Circuit Judges.                                    ______________                                 ___________________               Stephen H. Mackenzie on brief for appellant.               ____________________               Richard S. Cohen, United States Attorney, Richard W. Murphy,               ________________                          _________________          Assistant  United  States  Attorney  and  Margaret D.  McGaughey,                                                    ______________________          Assistant United States Attorney, on brief for appellee.                                  __________________                                 __________________                  Per  Curiam.   The  appellant, Isao  Isadorus Ima,  pled                 ___________            guilty  to one count of  violating 8 U.S.C.    1326, entering            the  United States after having been deported.  His appeal is            addressed solely to the district court's sentencing decision,            specifically to the court's adding  a 2 level enhancement for            obstruction of justice and declining to subtract 2 levels for            acceptance of responsibility.                 The base offense  level for  a violation of  8 U.S.C.               1326 is 8.  U.S.S.G.    2L1.2(a).1  The district court  found            that Ima had obstructed justice by providing materially false            information to the probation officer, in an attempt to affect            the sentence  ultimately imposed,  during the course  of that            officer's preparation of the  presentence report.  The court,            therefore,  pursuant  to  U.S.S.G.    3C1.1,2  increased  the            offense level by 2 to a total offense level of 10.  The court            also  concluded  that  Ima was  not  entitled  to  a 2  level                                            ____________________            1.  This reference, as well as all subsequent references, are            to the guidelines in effect as of November 1991.            2.  "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.                 Among the examples of the types of conduct to which this            enhancement   applies,   the   guideline   commentary   lists            "providing   materially  false  information  to  a  probation            officer in  respect to  a presentence or  other investigation            for the court."  U.S.S.G.   3C1.1, comment. (n.3(h)).                 Material   information,  as  used   in     3C1.1,  means            information "that,  if believed,  would tend to  influence or            affect  the issue  under determination."   U.S.S.G.    3C1.1,            comment. (n.5).                                         -2-            downward adjustment for  acceptance of  responsibility.   The            resulting  applicable guideline range  for someone, like Ima,            in  criminal history  category I,  is 6-12  months.   Ima was            sentenced to an 8 month term of imprisonment.                 As an initial matter,  the government contends that this            appeal  is  moot  because  Ima's term  of  incarceration  was            expected  to terminate on  or about May  27, 1992 and  he was            subject to immediate deportation  upon his release.  Although            that  date has now  passed, counsel for  Ima has  not told us            whether, in fact,  Ima has  been released  and deported,  but            neither  does he contest  either of these  assumptions, so we            will accept them as accurate.                 Counsel contends,  nonetheless, that this appeal  is not            moot  because  of  potential collateral  consequences.    His            reasoning  runs  as  follows:   The  collateral  consequences            pertain to a potentially increased sentence if Ima should, in            the  future, once again,  enter the  United States  and, once            again,   face  federal  criminal  sentencing.    Because  the            sentence, presently at issue,  was a sentence of imprisonment            of  at least 60  days, this sentence would  be counted in any            future sentence, by adding 2 points to Ima's criminal history            category.  See U.S.S.G.    4A1.1(b).  If, however,  we accept                       ___            Ima's  arguments on  the  merits, i.e.,  there  was error  in            increasing  the offense level by  2 (from offense  level 8 to            level 10) for obstruction of justice as well as in failing to                                         -3-            decrease the  offense level by   2 (from  offense level  8 to            level 6)  for  acceptance of  responsibility, the  applicable            sentencing guideline  range for the instant  offense would be            0-6  months.   If upon  remand in  this appeal,  the district            court  were  to  resentence  Ima   to  a  term  (within  this            guideline)  of less  than  60 days,  this corrected  sentence            could  not be  counted  in determining  his criminal  history            category in any future sentence.                 We pass  an initial  question whether the  likelihood of            these  multiple  contingencies  occurring  make  the  claimed            collateral consequences  too  speculative and  attenuated  to            negate mootness.  Because there could be a benefit  to Ima in            having  his sentence  corrected  even though  he already  has            served  that sentence, we decline to find the appeal moot and            we proceed to the merits.  United States v. Dickey,  924 F.2d                                       _____________    ______            836, 838 (9th Cir.) (appeal is not moot because appellant was            sentenced to a term of imprisonment in  excess of 60 days and            any possible  future sentencing  under  the guidelines  would            result in an increase  of criminal history score by  2 points            instead  of single point he  would have received  had he been            sentenced to probation), cert. denied, 112 S. Ct. 383 (1991);                                     ____________            United  States v.  Mares-Molina, 913 F.2d  770, 773  n.3 (9th            ______________     ____________            Cir.  1990) (similar); United  States v. Montenegro-Rojo, 908                                   ______________    _______________            F.2d 425, 431 n.8 (9th Cir. 1990) (similar).                                         -4-                 We flesh out  the context in  which Ima's arguments  are            made.   In the  course of the  presentence investigation, Ima            told the probation officer that  he entered the United States            on September 1, 1991  to consult with his lawyers  and others            on  business  and immigration  matters.    He said  that  his            corporation,  U.S. Japan  Hitech Hitouch  Research Institute,            was legally registered in the United States and was set up to            invest up to  $500 million  of Japanese funds  in the  United            States   in  cooperation  with   Bowdoin  College  and  other            institutions.   He said that "the  people concerned" strongly            encouraged  him to  come  to the  United  States as  soon  as            possible.                 He also claimed  that he was  "informed by the  American            Embassy in Tokyo" that every  entrepreneur, who, on and after            October  1, 1991,  brings $1  million or  more to  the United            States  and thereby creates at least ten jobs, would be given            United  States citizenship.   He wanted  to consult  with his            lawyers about his entire  family immigrating here using a  $5            million start-up fund.                 By  this  exposition,  Ima  sought to  explain  that  he            entered the United  States in  haste and to  avoid the  delay            which  would occur  in following  the procedure  required for            lawful entry.  Ima then explained that, on September 13th, he            went  to Nomura  International  Securities in  Manhattan, New            York and picked up three checks,  totally $5 million.  On his                                         -5-            return  trip to  Portland, Maine,  however, he  was in  a car            accident in Connecticut, and the checks blew away.                 In investigating these claims, the probation office  was            advised by  Peter Chepucavage, the general  counsel at Nomura            International  Securities,  that,  although  Ima   was  there            briefly on September 13th, there is "no record of significant            activity during Mr. Ima's visit or any indication that checks            were  issued."   Further,  the  police  officer investigating            Ima's car  accident reported  that there  were  no papers  or            documents  strewn   about  at  the  accident   scene  or  any            indication  that documents were  lost.  The  car was damaged,            but intact  and towed from the  scene.  Ima and  his wife had            access to their vehicle after the accident and removed  their            many belongings from the car.                 In  finding  an   obstruction  of  justice,  the   court            concluded that  the story  provided by  Ima to the  probation            officer  concerning his intended  investment undertakings and            the  securing and  subsequent  loss of  $5  million worth  of            checks was materially false.   The court also  concluded that            this obstruction of justice negated Ima's claim of acceptance            of  responsibility.   See  U.S.S.G.    3E1.1, comment.  (n.4)                                  ___            ("Conduct  resulting  in   an  enhancement   under      3C1.1            (Obstructing  or  Impeding  the  Administration  of  Justice)            ordinarily  indicates that  the  defendant has  not  accepted            responsibility for his criminal conduct").                                         -6-                 On appeal,  Ima contends  that the district  court erred            (1)  in assessing the  2 level upward  adjustment because the            information  provided  was  not  material3  and  (2)  in  not            assessing   a  2   level  downward  adjustment   because  the            obstruction  of   justice  finding   was  erroneous  and   he            demonstrated sincere  contrition and  remorse.  We  need only            consider the first contention.                 The  standard of review  of a finding  of materiality to                                                           materiality            support  an enhancement  pursuant  to    3C1.1 for  providing            materially  false information  is  the subject  of  disparate            views.  Compare  United States  v. Hicks, 948  F.2d 877,  886                    _______  _____________     _____            (4th Cir.  1991) (the  question of  materiality is  a factual            determination subject to the clearly erroneous standard) with                                                                     ____            United  States v. Rodriguez, 943 F.2d 215, 218 (2d Cir. 1991)            ______________    _________            (the appropriate interpretation of the definition of the word            "material" is a  matter of legal interpretation subject to de            novo  review); see also  United States v.  Cusumano, 943 F.2d                           ________  _____________     ________            305, 315 (3d Cir. 1991) (assuming, without deciding, that the                                            ____________________            3.  We  summarily  reject  Ima's  additional claim  that  the            burden  of  showing  the   falsity  of  the  information  was            inappropriately placed  on him.   The reported  statements of            Mr. Chepucavage and of the police officer investigating Ima's            automobile   accident  belie   Ima's   contention  that   the            government failed to put forth evidence of the untruthfulness            of his statements.                 Likewise, we summarily reject Ima's  contention that the            district  court  failed  to  determine that  he  intended  to            obstruct  justice  by making  the statements  at issue.   The            court  expressly  rejected  Ima's  assertion  of  a  language            barrier  and concluded  that his  statements were  an obvious            effort to affect his criminal sentence.                                         -7-            standard  of review is plenary), cert. denied, 112 S. Ct. 881                                             ____________            (1992); cf. United States v. Moreno, 947 F.2d 7, 10 (1st Cir.                    ___ _____________    ______            1991) (whether conduct  is encompassed within the  scope of              3C1.1 is subject to de novo review).  We will assume, without            deciding, that our review  of a finding of materiality  is de            novo,  for even pursuant to this  standard, more favorable to            Ima, there was no error.                 A probation officer conducts a presentence investigation            to  aid the  court  in its  determination  of an  appropriate            sentence.    Information that,  if  believed,  would tend  to            influence or affect the  issue under determination, i.e., the            appropriate  sentence,   is  material.    U.S.S.G.     3C1.1,            comment. (n.5);  see also United States v.  Dedeker, 961 F.2d                             ________ _____________     _______            164, 166-67 (11th Cir. 1992)  (a past conviction, which would            not  affect  the criminal  history  category,  is nonetheless            material to the  choice of a sentence within a range and thus            failure to  disclose this conviction  can warrant enhancement            pursuant to   3C1.1).  We agree with the district court  that            Ima's  story  of why  he  entered the  country  illegally was            designed  to place his conduct  of illegal entry  in the most            favorable  light and to gain the court's sympathy in the hope            of  a lower  sentence within  the guideline  range.   A court            might  well impose  a shorter  sentence on  a defendant  who,            although entering  unlawfully, did so because  of a misguided            impression of  urgency in pursuit of  legitimate business and                                         -8-            family  concerns,  as compared  to a  defendant with  no such            misapprehension  or benign intentions.  There was no error in            district court's  finding that Ima  provided materially false            information  as described by    3C1.1 and imposing  a 2 level            enhancement for obstruction of justice.                 We note that  Ima's claim  that his appeal  is not  moot            depends on our  acceptance of  both of his  arguments on  the            merits.  We  have rejected  his contention that  the 2  level            increase  (from  level  8 to  level  10)  for  obstruction of            justice  was error.  Consequently, even were we to accept his            other  contention, that he should  have been given  a 2 level            reduction for acceptance of responsibility, the offense level            would simply  revert back to the original  base offense level            of 8.   Ima gains no benefit in only having his offense level            reduced to level 8.  The guideline range for offense  level 8            is  2-8 months.  Any sentence imposed within this range would            necessarily  be a term of  imprisonment of at  least 60 days.            The increase  in the criminal history category, should Ima in            the  future  again  face  criminal  sentencing,  would  occur            irrespective    of    the   acceptance    of   responsibility            determination.     We,  therefore,  need  not   address  that            argument.   We  add only  2 comments.   First,  a finding  of            obstruction of justice, which was  the basis for the district            court's  refusal to award a 2  level reduction for acceptance            of responsibility, is, in  the usual case, sufficient support                                         -9-            for such refusal.  United States v. Aymelek, 926  F.2d 64, 69                               _____________    _______            (1st Cir. 1991);  U.S.S.G.   3E1.1, comment. (n.4).   Second,            the district  court's finding that Ima's  explanation for his            illegal  entry  was  false  is  not  clearly  erroneous  and,            independent  of its  materiality for  obstruction  of justice            purposes,  such conduct  is inconsistent  with acceptance  of            responsibility.   See United  States v. DeFelippis,  950 F.2d                              ___ ______________    __________            444, 447 (7th Cir. 1991)  (defendant's false characterization            as  to  his  employment status,  while  not  material  to the            presentence  investigation, evidenced a continuing attempt to            rationalize  and  minimize   his  conduct  and   supported  a            rejection of a reduction for acceptance of responsibility).                  We summarily affirm.  Loc. R. 27.1                              _______                                         -10-
