
USCA1 Opinion

	




          February 16, 1995     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1817                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                ROGER W. CORREIA, SR.,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                                                                      ____________________                               Torruella, Chief Judge,                                          ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Bjorn  R.  Lang,  with whom  Owen  S.  Walker  was  on brief  for             _______________              ________________        appellant.             Sheila  W. Sawyer,  Assistant United  States Attorney,  with whom             _________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                                                                      ____________________                                                                                      ____________________                    Per Curiam.   After appellant Roger  Correia, Sr., pled                    Per Curiam                    ___ ______          guilty to four counts of  defrauding the Social Security Adminis-          tration ("SSA"), the district  court enhanced his sentence pursu-          ant to U.S.S.G.   3C1.1.  The sole issue on appeal is whether the          oath  administered to appellant  during the  course of  the fraud          investigation conducted by the United States Department of Health          and Human Services ("HHS") was authorized by law.  We affirm.                     The district  court imposed a two-point  upward adjust-          ment for attempting  to obstruct or impede  the administration of          justice  during   the  HHS  fraud investigation.    The guideline          commentary makes  a clear  distinction between sworn  and unsworn          statements.   "Committing,  suborning,  or attempting  to  suborn          perjury" is specifically enumerated  conduct to which the adjust-          ment  applies.  U.S.S.G.    3C1.1, comment. (n.3(b)).1   The only          question raised  is whether the HHS inspectors were authorized to          administer  an oath to appellant.   See United  States v. Debrow,                                              ___ ______________    ______          346 U.S. 374, 377 (1953).                    The  instant HHS investigation  was conducted in accor-          dance with  the Inspector General Act of  1978, which establishes          inspectors general  within, inter alia, the  Department of Health                                      _____ ____                                        ____________________               1Perjury is defined at 18 U.S.C.   1621:                    Whoever, having  taken an oath before  a com-                    petent  tribunal, officer,  or person  in any                    case  in which  a  law of  the United  States                    authorizes an  oath to  be administered. .  .                    willfully and contrary to such oath states or                    subscribes any material  matter which he does                    not  believe to  be true.  .  . is  guilty of                    perjury. . . .                                          2          and Human Services, "to conduct and supervise audits and investi-          gations  relating to [its]  programs and operations  . . .  ."  5          U.S.C. app.  3   2(1)  (1994).  The  Inspector General of  HHS is          empowered  "to administer  to or  take from  any person  an oath,          affirmation, or  affidavit whenever necessary  in the performance                                              _________  __ ___ ___________          of the functions assigned by this Act."  Id.    6(a)(5) (emphasis          __ ___ _________                         ___          added).                      Appellant's lone argument is that it was not "necessary          in  the  performance of  the functions"  assigned  to the  HHS to          administer  an oath in investigating this case.  This claim rings          especially hollow here, since appellant  had lied to HHS investi-          gators  during  an earlier  interview,  thereby  enabling him  to          continue for  almost two  additional years to  receive disability          payments to which he was not entitled.                      As appellant was subject to a duly administered oath at          the time he willfully made materially false statements to the HHS          inspectors, the two-point enhancement  under U.S.S.G.   3C1.1 was          entirely proper.                      AFFIRMED.                    AFFIRMED                    ________                                                       3
