                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                     JAN 7 1998
                                        TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk

 UNITED STATES OF AMERICA,
                Plaintiff - Appellee,                          No. 96-3384
           v.                                            (D.C. No. 95-CR-10001)
 ALFRED B. BROOKS,                                               (D. Kan.)
                Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before TACHA, McKAY, and BRISCOE, Circuit Judges.



       Defendant-Appellant, Mr. Alfred B. Brooks, was sentenced to twenty-one months

in prison and three years of supervised release after pleading guilty to two counts of mail

fraud in violation of 18 U.S.C. § 1341. The Defendant was also ordered to pay $94,000

in restitution. Pursuant to a plea bargain agreement, the third count of the indictment

against Defendant was dismissed.

       The district court granted Defendant several continuances of his sentencing date in

order to give him additional time to obtain the restitution. The court stated that



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Defendant’s ability to acquire the funds necessary to pay the owed restitution would

significantly affect his sentence, i.e., if Defendant obtained restitution money, the court

would sentence him to probation; but if he did not, the court would impose a sentence as

long as 30 months.1 See R., Vol. III at 31, 33; R., Vol. V at 39; R., Vol. VI at 3-4, 13.

After five continuances over a six-month time period, the court concluded that Defendant

was not being forthright about his ability to obtain restitution and that he had made false

statements to the probation office. See R., Vol. VII at 5, 6-7. At the final sentencing

hearing, the court decided to raise Defendant’s total offense level by two levels because

of his misrepresentations to the court and the probation office. See id. at 3, 6-7. The

court then sentenced Defendant to twenty-one months in prison and three years of

supervised release. See id. at 54.

       In this appeal, Defendant challenges the legality of his sentence, claiming that the

court erred in departing upward from the sentence applicable under the U.S. Sentencing

Guidelines. During the sentencing hearings, the court alternately referred to its

adjustment of Defendant’s sentence as a “departure”and as an “enhancement.” See R.,

Vol. VII at 6 (“I’m going to depart”) (“justification for the upward departure”); id. at 3, 9

(“The Court intends to enhance by two levels which will then make the offense level a 14

rather than 12.”) (“I’ve decided there to enhance on two levels from 12 to 14.”). The



       1
        The guideline range indicated in the Presentence Investigation Report was ten to
sixteen months.

                                              2
record clearly reveals that the action taken by the court was to enhance Defendant’s total

offense level from 12 to 14. The enhancement of the offense level raised the sentencing

range from a maximum of sixteen months to a maximum of twenty-one months. See id.

at 3-4. Thus the imposition of the twenty-one-month sentence is not an upward departure

from the Guidelines, but rather a sentence at the high end of the range applicable under

the Guidelines. United States Sentencing Guidelines Manual at 304, Sentencing Table.

The statutory limit for violation of 18 U.S.C. § 1341 is five years, thus the sentence

imposed is well within the statutory limit.

       The distinction between an upward adjustment from the applicable sentence range

specified by the Guidelines and an enhancement of a defendant’s offense level is

important because it determines the standard of review this court must apply to the

sentencing court’s decision. See United States v. Smith, 930 F.2d 1450, 1453 (10th Cir.

1991). We review the sufficiency of the evidence supporting a sentencing court’s

decision to enhance a defendant’s offense level under the clearly erroneous standard.

United States v. Morgan, 936 F.2d 1561, 1573 (10th Cir. 1991). We will not reverse

these decisions “unless the court’s finding was without factual support in the record, or if

after reviewing all the evidence we are left with the definite and firm conviction that a

mistake has been made.” United States v. Beaulieu, 900 F.2d 1537, 1540 (10th Cir.

1990). Appellate court deference is especially appropriate when the issue is witness

credibility. See United States v. Beaulieu, 900 F.2d 1531, 1535 (10th Cir. 1990) (citing


                                              3
18 U.S.C. § 3742(e)).

       We also review a district court’s enhancement of a sentence for obstruction of

justice under U.S.S.G. § 3C1.1 for clear error. United States v. McCann, 940 F.2d 1352,

1360 (10th Cir. 1991). Section 3C1.1 provides for an increase in a defendant’s offense

level if he willfully obstructs or impedes the administration of justice during the

sentencing phase of the offense proceedings. U.S.S.G. § 3C1.1. An obstruction of justice

enhancement may be applied when the defendant provides materially false information to

the court or probation officer. See U.S.S.G. § 3C1.1, commentary, notes 3(f) & 3(h).

       Although the court did not specifically cite U.S.S.G. § 3C1.1 in its decision to

enhance Defendant’s offense level, it is sufficiently clear from the court’s references to

Defendant’s dishonest behavior that the court was applying a two-level enhancement for

obstruction of justice. See R., Vol. III at 10, 33; R., Vol. V at 37; R., Vol. VI at 8; R.,

Vol. VII at 7-9, 50. The sentencing court based the enhancement on “the defendant’s lack

of cooperation with the Court and with the probation officer,” and found that Defendant

“lied to the probation officer about his finances” and that Defendant appeared to be

stringing the court along by his repeated affirmations that he would soon be able to

acquire the restitution money when, indeed, he knew that he could not obtain the money.

R., Vol. VII at 6-7, 50. There is contradictory evidence in the record regarding the

assertions that Defendant hid his assets, did not fully disclose his financial position, and

misled the court about his ability to pay restitution. However, there is certainly enough


                                               4
evidence in the record to support a belief by the district court that Defendant dissembled

in his statements to the court regarding whether or not he actually profited from his

misdeeds. Under the clearly erroneous standard of review, there is enough evidence in

the record to support the district court’s enhancement of Defendant’s offense level.

       We hold that the trial court’s determination that Defendant made

misrepresentations was not clearly erroneous and that this determination justifies the

court’s enhancement of his total offense level. We therefore AFFIRM the sentence

imposed by the district court. This mandate shall issue forthwith.

                                                        Entered for the Court


                                                        Monroe G. McKay
                                                        Circuit Judge




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