
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          July 6, 1995          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                        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.                                         -3-                                          3            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                                         -4-                                          4            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                                         -5-                                          5            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                                         -6-                                          6            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                                         -7-                                          7            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                                             ____________________            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.                                         -8-                                          8                 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.                                            ____________________            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).                                         -9-                                          9            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                                         -10-                                          10            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.                                         -11-                                          11            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                 ________                                            ____________________            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.                                           -12-                                          12
