                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-6-2009

USA v. George
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2048




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                                                        NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                              No. 08-2048
                                ______


                   UNITED STATES OF AMERICA

                                   v.

                           MARC GEORGE,
                                    Appellant


             On Appeal from the United States District Court
                 for the Middle District of Pennsylvania
                       (D.C. No. 1-06-cr-00173-27)
                 District Judge: Honorable Yvette Kane




               Submitted Under Third Circuit LAR 34.1(a)
                            March 5, 2009

    Before: SLOVITER and HARDIMAN, Circuit Judges, and
                 POLLAK * , District Judge

                        (Filed March 06, 2009 )

                                  ____

                               OPINION




         *
          Hon. Louis H. Pollak, Senior Judge, United States District
  Court for the Eastern District of Pennsylvania, sitting by
  designation.
SLOVITER, Circuit Judge.

       Appellant Marc George challenges the District Court’s rulings under the

Sentencing Guidelines related to an enhancement for obstruction of justice as well as the

Court’s calculation of his criminal history category.

                                             I.

       This case arises out of George’s participation in co-defendant Rodney

Hutchinson’s drug organization. George transported money derived from Hutchinson’s

drug operations. In May 2004, the Pennsylvania State Police stopped George and found

nearly $400,000 in his car and on the persons of the occupants of the car. George

admitted that he made drug-money runs, but was not charged.

       In February 2005, George’s vehicle was stopped by a New Jersey narcotics unit

and the police search recovered approximately $350,000 hidden in George’s vehicle.

George was subsequently charged with felony money laundering by the New Jersey

authorities. After George was released on bail, he failed to appear in state court to answer

those charges.

       In fact, George fled to Mexico where he had his fingerprints surgically removed by

co-defendant Jose Covarrubias. When George attempted to re-enter the United States in

September 2005 with a stolen passport, he was detained by border agents. George, who

admitted that he had previously been deported to Jamaica, pled guilty in February 2006 to

re-entry after deportation without proper permission, and was sentenced to thirteen



                                             2
months imprisonment.

       A federal investigation of the Hutchinson organization began in February 2005.

George was charged in May 2006 with conspiracy to distribute one thousand or more

kilograms of marijuana, conspiracy to commit money laundering, and criminal forfeiture.

George pleaded guilty to conspiracy to commit money laundering in exchange for

dismissal of the remaining charges.

       At sentencing, as relevant here, George objected to a two-level enhancement for

obstruction of justice under United States Sentencing Guidelines Manual (“U.S.S.G.”)

§ 3C1.1 based on his flight and fingerprint-removal surgery. George also objected to the

inclusion in his criminal history category calculation of his offense of re-entry after

deportation. The inclusion of that offense increased George’s criminal history category

from level II to level III. The District Court rejected both objections, granted George a

reduction for acceptance of responsibility, and calculated the Guidelines sentencing range

to be 108-135 months imprisonment. The Court then exercised its discretion under 18

U.S.C. § 3553(a) and sentenced George below that range to 96 months imprisonment.1




                    1
                     The District Court had jurisdiction pursuant to 18 U.S.C. §
             3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
             § 3742. We exercise plenary review over the District Court’s
             interpretation and application of the Sentencing Guidelines and
             review its factual findings for clear error. United States v. Miller,
             527 F.3d 54, 60 (3d Cir. 2008).

                                              3
                                             II.

       On appeal, George contends that the two-level enhancement for obstruction of

justice was inappropriate because he was not aware of the pending federal investigation

when he fled to Mexico and had his fingerprints removed. However, a “defendant need

not be aware of the federal investigation at the time of the obstructive conduct” for the

enhancement under U.S.S.G. § 3C1.1 to be applicable. United States v. Jenkins, 275 F.3d

283, 291 (3d Cir. 2001). Instead, the enhancement is applicable if a defendant

intentionally engages in conduct to obstruct, or to attempt to obstruct, the administration

of justice and there is “some nexus between the obstruction and the federal offense.” Id.

at 289. That test is satisfied here because George, by his flight and fingerprint-removal

surgery, attempted to evade detection and prosecution for his role in the Hutchinson

organization.

       George next argues that the inclusion within his criminal history category

calculation of his conviction for re-entry after deportation was improper under U.S.S.G. §

4A1.2(a)(1) because “[h]is re-entry into the United States during the course of the current

conspiracy formed the basis for the [re-entry of deportation offense], but it was also an

action taken as part of the ongoing conspiracy” at issue here. Appellant’s Br. at 22.

       We disagree. A “prior sentence” is “any sentence previously imposed . . . for

conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1). Further, “[c]onduct that

is part of the instant offense means conduct that is relevant conduct to the instant offense

under the provisions of section 1B1.3 . . . .” U.S.S.G. § 4A1.2, cmt. n.1. Here, George’s

                                              4
re-entry after deportation offense punished his attempt to enter the United States without

permission. That specific conduct (as distinguished from the flight from authorities and

fingerprint removal that preceded it) was not relevant in determining George’s offense

level for the instant offense, and therefore the re-entry after deportation offense was

properly included in George’s criminal history calculation.

       George seeks to rely on our decision in United States v. Hallman, holding that a

prior offense may not be included in a defendant’s criminal history category calculation

where the prior offense and the instant charge are “part of a common scheme or plan.” 23

F.3d 821, 826 (3d Cir. 1994). In Hallman, we held that a prior state conviction for

forgery and a federal charge for possession of stolen mail were part of a common scheme

because the stolen mail was checks and credit cards, and therefore it was “reasonable to

infer that the mail was stolen to find checks or other instruments that could be converted

to use through forgery.” Id.

       There is no similar common scheme here. George may not have engaged in the

conduct underlying the immigration offense if the New Jersey authorities had not

uncovered his participation in the money laundering conspiracy. However, as we stated

in Hallman: “A crime merely suggested by or arising out of the commission of a previous

crime is not . . . related to the earlier crime in the special sense of being part of a common

scheme or plan.” Id. (quoting United States v. Ali, 951 F.2d 827, 828 (7th Cir. 1992)).

                                             III.

       For the above-stated reasons, we will affirm the judgment of sentence

                                              5
