
USCA1 Opinion

	




          October 15, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1639                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   JOHN L. ST. CYR,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                             and Boyle,* District Judge.                                         ______________                              _________________________               Jeffrey D. Clements, with whom  Jensen Baird Gardner & Henry               ___________________             ____________________________          was on brief, for appellant.               Margaret  D. McGaughey,  Assistant  United States  Attorney,               ______________________          with  whom Richard S. Cohen, United States Attorney, and Jonathan                     ________________                              ________          R. Chapman, Assistant  United States Attorney, were on brief, for          __________          appellee.                              _________________________                              _________________________          ___________          *Chief Judge,  United States District  Court for the  District of          Rhode Island, sitting by designation.                    SELYA, Circuit Judge.  After twice visiting a famed New                    SELYA, Circuit Judge.                           _____________          England clothier and successfully  exchanging stolen sweaters for          cash,  defendant-appellant  John L.  St.  Cyr  botched his  third          attempt.    Confronted  with  the  irrefragable  threads  of  his          criminality, St.  Cyr  pled guilty  to two  counts of  possessing          stolen  property (each count representing a successful exchange).          Although the two  offenses occurred only  four months apart,  the          federal sentencing guidelines intervened.1   Appellant received a          pre-guidelines  sentence on  the first  count (two  years) and  a          concurrent   guideline-driven  sentence   on  the   second  count          (fourteen months).   He will be eligible  for parole on the  two-          year sentence  after approximately eight  months.   No parole  is          possible on the other sentence.                    St.  Cyr  appeals the  lower  court's  judgment in  its          entirety.  We affirm  with respect to the first  count.  However,          after studying  the district  court's construction of  U.S.S.G.            2B1.2(b)(4)(A),  a  guideline never  before  interpreted  by this          court, we vacate  the sentence  imposed on the  second count  and          remand for resentencing on that count.  The yarn follows.          I.  FACTS          I.  FACTS                    In  late 1986, thieves snatched a  trailer load of pre-          labelled  sweaters  and dresses  bound  for  two retail  clothing                                        ____________________               1All references  herein are to the  sentencing guidelines in          effect on  the date appellant was  sentenced, May 21, 1992.   See                                                                        ___          United States v.  Harotunian, 920  F.2d 1040,  1041-42 (1st  Cir.          _____________     __________          1990) ("Barring  any ex post facto problem,  a defendant is to be                               _____________          punished according to  the guidelines  in effect at  the time  of          sentencing.") (citing 18 U.S.C.   3553(a)(4)).                                          2          stores.   The trailer soon reappeared  in Methuen, Massachusetts.          By  then, it was under  the apparent control  of Thomas Flaherty.          Flaherty sold most of  the loot to Francis McKay,  the proprietor          of  A & M Auto Wholesalers, Lawrence, Massachusetts (and, in that          capacity, St. Cyr's employer).                    In  time, appellant  bought twenty-two  stolen sweaters          from  McKay.2  He divided  the sweaters into  three roughly equal          groups and  "returned" them  to an affected  retailer, L.L.  Bean          Co., requesting that  Bean "refund" the retail  price.  Appellant          received  $399.20  in  refunds  for  the  first  two  batches  of          sweaters.  On his third attempt, a store employee refused to give          him cash and asked him for  a mailing address.  Police traced the          address and confronted St. Cyr.  He confessed.          II.  THE SENTENCE ON COUNT I          II.  THE SENTENCE ON COUNT I                    In  what  amounts  to  a  passing  reference,  St.  Cyr          suggests that his sentence on count  I was "plainly unreasonable"          and should be vacated.  We refuse to give  this point substantive          consideration for two reasons.  First, Congress created appellate          jurisdiction  with respect  to  "plainly  unreasonable"  criminal          sentences on December 7, 1987, and made the grant of jurisdiction          applicable  only to criminal acts committed after that date.  See                                                                        ___          Sentencing Act of  1987, Pub.  L. No.  100-182,    26, 101  Stat.          1266,  1272 (1987), codified  at 18  U.S.C.    3742(a)(4) (1988).                              ________  __          Count I  targets St. Cyr's  first trip to  L.L. Bean.   That trip                                        ____________________               2There is some confusion in the record as to whether St. Cyr          bought the sweaters on two or three different occasions.                                          3          took  place in October of  1987.  Hence,  section 3742(a)(4) does          not avail him here.                      Second, appellant  has offered no  meaningful rationale          as to  why the sentence  imposed on count  I was unreasonable  or          otherwise  defective.  It is settled in this circuit that "issues          adverted to on appeal  in a perfunctory manner, unaccompanied  by          some developed argumentation, are deemed to have been abandoned."          Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990); accord          ____    ______________                                     ______          United  States v.  Zannino,  895 F.2d  1,  17 (1st  Cir.),  cert.          ______________     _______                                  _____          denied, 494 U.S. 1082  (1990).  That principle is  fully apposite          ______          here.          III.  THE SENTENCE ON COUNT II          III.  THE SENTENCE ON COUNT II                    With  reference to  count  II, the  base offense  level          (BOL)  applicable to  the offense  of conviction  was four.   See                                                                        ___          U.S.S.G.    2B1.2(a).  The district court elevated the BOL by one          level because the value  of the twenty-two sweaters  was $572.70.          See  U.S.S.G.     2B1.1(b)(1)(B),  2B1.2(b)(1) (directing  a one-          ___          level  increase  for goods  worth more  than  $100 but  less than          $1000).  The court added four more levels because St. Cyr was "in          the business of  receiving and selling  stolen property . .  . ."          U.S.S.G.   2B1.2(b)(4)(A).  The court explained that  it utilized          the four-level enhancement because  it "infer[red] that from [St.          Cyr's]  willingness and [the] easy  manner in which  he came into          participation in this [affair]  . . . he was a person predisposed          in  buying and selling stolen property."  Finally, the court made          two  offsetting  adjustments.     It  went  up  two   levels  for                                          4          obstruction of justice, see U.S.S.G.   3C1.1, and down two levels                                  ___          for role in the offense.  See U.S.S.G.   3B1.2(b) (adjustment for                                    ___          minor participation).                      Given  St. Cyr's  checkered  past,  these  calculations          resulted in a  guideline range of 8-14 months.   See U.S.S.G. Ch.                                                           ___          5, Pt.  A (sentencing table)  (offense level 9;  criminal history          category III).  The judge imposed the maximum authorized sentence          within the range.   On appeal, St. Cyr challenges  the four-level          enhancement for being  "in the business of  receiving and selling          stolen property" and the two-level enhancement for obstruction of          justice.                               A.  Standard of Review.                               A.  Standard of Review.                                   __________________                    Appellate review of  a district court's  application of          the sentencing  guidelines is  ordinarily a dichotomous  process.          First, the court of  appeals determines de novo the  reach of the                                                  __ ____          relevant guideline to  ascertain whether  it applies  in a  given          case.   See, e.g., United States  v. Tardiff, 969 F.2d 1283, 1289                  ___  ____  _____________     _______          (1st Cir. 1992); United States v. Connell, 960 F.2d 191, 197 (1st                           _____________    _______          Cir.   1992).    Once  the  court  of  appeals  has  defined  the          guideline's meaning and scope,  it reviews the sentencing court's          factfinding  only for clear error.   See United  States v. David,                                               ___ ______________    _____          940 F.2d 722, 739 (1st Cir. 1991), cert. denied, 112  S. Ct. 2301                                             _____ ______          (1992); see also  18 U.S.C.    3742(e) (1988).   Accordingly,  we                  ___ ____          cede no deference to the district court's legal conclusion that a                                                    _____          defendant's  inferred  predisposition  toward fencing  activities                                          5          brings him within the ambit of section 2B1.2(b)(4)(A).3                           B.  The Four-Level Enhancement.                           B.  The Four-Level Enhancement.                               __________________________                    1.   The  "Fencing Business"  Requirement.   The master                    1.   The  "Fencing Business"  Requirement.                         ____________________________________          guideline    for    "receiving,    transporting,    transferring,          transmitting, or  possessing stolen property,"  U.S.S.G.    2B1.2          (excess  capitalization omitted), starts at  a BOL of  four.  The          guideline  directs the  district  court to  increase the  offense          level  in a  variety  of circumstances.   Section  2B1.2(b)(4)(A)          limns one  such circumstance, mandating a  four-level increase if          "the  offense  was  committed by  a  person  in  the business  of          receiving and selling  stolen property . .  . ."  The  Sentencing          Commission explains  this enhancement    which we shall  call the          "in-the-business" or "ITB"  enhancement   on the basis that, when          persons  receive  stolen  property  for resale,  "the  amount  of          property  is   likely  to  underrepresent  the   scope  of  their          criminality and the extent to which  they encourage or facilitate          other  crimes."  U.S.S.G.    2B1.2, comment. (backg'd).   As with          any other upward adjustment  under the sentencing guidelines, the          government  bears  the  burden   of  establishing  that  the  ITB          enhancement applies in a given case.  See, e.g., United States v.                                                ___  ____  _____________          Sklar, 920 F.2d 107, 110 (1st Cir. 1990); United States v. Unger,          _____                                     _____________    _____          915 F.2d 759, 761 (1st Cir. 1990), cert. denied, 111  S. Ct. 1005                                             _____ ______                                        ____________________               3The government suggests that  United States v. Russell, 913                                              _____________    _______          F.2d 1288 (8th Cir.  1990), cert. denied, 111 S. Ct. 1687 (1991),                                      _____ ______          imports  a more deferential standard  of review.   We reject this          suggestion.  While  the Russell court  was admittedly hazy  about                                  _______          the precise  standard of review,  the court's  basic holding  was          that "factual  findings . .  . will not  be upset unless  clearly                _______  ________          erroneous."  Id. at 1294 (emphasis supplied).                       ___                                          6          (1991).                    There is a dearth of  authority concerning the scope of          section  2B1.2(b)(4)(A)  and the  guidelines  are  silent on  the          meaning of the pivotal phrase:  "in the business  of . . . ."  We          have never spoken to section 2B1.2(b)(4)(A).   Courts outside our          circuit have dealt with the provision sparingly.                    The government urges that  we need not look  beyond the          background  commentary,  quoted  supra   p.  6,  to  resolve  the                                           _____          essential   meaning  of   the   section   2B1.2(b)(4)(A).     The          commentary's  motivating  purpose  is  apparent.   An  underworld          business  causes greater community  blight than an intermittently          criminal  individual.   Nonetheless,  the commentary  leaves more          specific issues unresolved; taken  literally, it proves too much.          For    one    thing,    facilitation   of    other    crime   and          underrepresentation  of criminal  activity  are probably  present          whenever stolen property is bought or sold.  Like any market, the          black market's efficiency is generally proportional to the number          of buyers  and sellers that enter  it.  Thus,  even purchasers of          stolen goods who never sell and sellers of stolen goods who never          purchase can  strengthen the black market  and thereby facilitate          other crime.                    For another thing, individuals convicted of any crime            not just those  who deal in stolen property    are often presumed          to  have  committed or  supported  other,  non-charged, offenses.          Indeed, this presumption is thought to be so  strong that Fed. R.          Evid.  404(b)  prohibits  the  introduction into  evidence  of  a                                          7          defendant's prior  acts to show his criminal  predisposition.  It          is  almost always possible to argue that  the conduct for which a          defendant  has been  convicted  is likely  to underrepresent  his          entire  criminal   career  or  his  contribution   to  a  general          subculture  of criminality.   There  is no  sound basis  on which          trafficking in stolen  property, per  se, can be  singled out  in                                           ___  __          this respect.                     Finally,  and  perhaps  most  tellingly,  it  would  be          senseless to presume that  the enhancement identifies exactly the          same  conduct  as the  base offense  itself.   If  the Sentencing          Commission wished to  ensure stiffer sentences for  all those who          receive and sell stolen property, it could have simply raised the          base  offense level.  There  must, then, be  a limiting principle          beyond simply  facilitation  or underrepresentation  of  criminal          activity   some smaller subclass to which the enhancement refers.          We think this is what the Sentencing Commission intended.                    To state this  conclusion does not, however,  determine          the end result.  A  few courts have suggested the  possibility of          restricting the guideline to so-called professional fences.  See,                                                                       ___          e.g.,  United States  v. Esquivel,  919 F.2d  957, 960  (5th Cir.          ____   _____________     ________          1990).   Notwithstanding that professional fences are essentially          black  market  speculators who  ease  the buying  and  selling of          stolen  goods  by simplifying  market  entrance  for supplies  of          stolen  property,  we do  not believe  that  focusing on  them is          necessarily  a step  forward.   Defining  the term  "professional          fence" is as  chancy as  defining the language  of the  guideline                                          8          itself.                      We conclude that there is no bright line that separates          defendants  who  are  "in  the  business"  of  dealing in  stolen          property  from those  who  are not  so  engaged.   Therefore,  in          mulling  whether to  impose the  ITB enhancement,  the sentencing          judge  must  undertake  a  case-by-case  approach,  weighing  the          totality of  the circumstances,  with particular emphasis  on the          regularity  and sophistication  of  a  defendant's operation,  in          order  to determine whether a  defendant is "in  the business" of          receiving and selling stolen property.                      We think  this  assessment fits  harmoniously with  the          Commission's likely rationale and with the decisions of those few          circuit  courts  that  have  addressed  the  meaning  of  section          2B1.2(b)(4)(A).   Despite the  differences in analytic  approach,          these courts,  either implicitly  or explicitly, judge  whether a          defendant  was  engaged in  the  business of  buying  and selling          stolen  property  by  surveying  the  overall  circumstances  and          studying the permissible inferences  that can be drawn therefrom.          See, e.g., United States v. Connor, 950 F.2d 1267, 1275 (7th Cir.          ___  ____  _____________    ______          1991) (stressing  the importance  of past  criminality to  an ITB          determination);  Esquivel,  919  F.2d   at  960  (assessing   the                           ________          characteristics of  defendant's fencing operation and  finding it          sufficiently businesslike); United States v. Braslawsky, 913 F.2d                                      _____________    __________          466, 466 (7th Cir.  1990) (finding that the defendant was not "in          the  business" where  he sold  only goods  that he,  himself, had          stolen).                                          9                    2.   Pertinent Considerations.   Under the  approach we                    2.   Pertinent Considerations.                         ________________________          endorse  today,  a  district  court  should  weigh  a  number  of          circumstances  in  its  effort   to  determine  whether  the  ITB          enhancement applies in a particular instance.  The most important          factor is likely to be the regularity of the defendant's dealings          in stolen  merchandise.  In searching for evidence of regularity,          we  do not  suggest  that selling  stolen  property must  be  the          dominant  source of  a  defendant's income  before his  felonious          activities  become sufficiently  prominent  to be  regarded as  a          business.  See, e.g., Esquivel, 919 F.2d at 960 & n.4 (concluding                     ___  ____  ________          that  an ITB  enhancement  was appropriate  for  a defendant  who          earned 25%  of his total  income from  selling stolen  property).          Nevertheless,  a sentencing court can certainly consider evidence          about the amount of  income generated through fencing activities,          the  defendant's past  activities, his  demonstrated interest  in          continuing  or  expanding the  operation,  and the  value  of the          property  handled.   Where  there is  no  indication either  of a          pattern of dealing in stolen property or of a developed operation          that promises  such consistency for the future,  the defendant is          unlikely to be "in the  business."  See Connor, 950 F.2d  at 1275                                              ___ ______          (noting in  dictum that only  those persons "who  have previously          engaged  in  significant illegal  conduct  which  is similar"  to          fencing will  merit a  section 2B1.2(b)(4)(A) enhancement).   But                                                                        ___          cf. Esquivel,  919 F.2d at 957 (implicitly rejecting a regularity          ___ ________          requirement  in finding  a new,  but very  sophisticated, fencing          operation to be a business).                                          10                    We  envision  a  useful  parallel  between  U.S.S.G.             2B1.2(b)(4)(A)  and   another  guideline  which  allows   an  ITB          enhancement.   An  individual  convicted of  tax  fraud rates  an          upward adjustment in his  offense level if the individual  is "in          the  business of preparing or assisting in the preparation of tax          returns  . .  .  ."   U.S.S.G.    2T1.4(b)(3).   The  enhancement          applies to those people  who "regularly act" as tax  preparers or          advisers.    See id.,  comment.  (n.3).    Indeed, regularity  of                       ___ ___          conduct  is   one  universal   thread  in  virtually   all  legal          definitions of business.   See, e.g., United States v. Muskovsky,                                     ___  ____  _____________    _________          863  F.2d  1319, 1327  (7th  Cir.  1988) (construing  the  phrase          "business enterprise" in the Travel Act, 18 U.S.C.   1952), cert.                                                                      _____          denied,  489 U.S. 1067 (1989).   United States  v. Lignarolo, 770          ______                           _____________     _________          F.2d  971, 979 (11th Cir.  1984) (construing a  similar phrase in          respect  to the  RICO  statute, 18  U.S.C.     1961-1968),  cert.                                                                      _____          denied, 476 U.S.  1105 (1986);  United States v.  Van Buren,  593          ______                          _____________     _________          F.2d  125,   126  (9th   Cir.  1979)  (observing   that  business          necessitates "activity . . . greater than the occasional sales").          In those contexts, courts have insisted that more than  isolated,          casual,  or sporadic activity be shown before a business is found          to exist.4                    Citing Esquivel,  919 F.2d  957, the  government argues                           ________                                        ____________________               4On  several other  occasions, the  guidelines use  the term          "business"  without  commenting  on  its  meaning.    See,  e.g.,                                                                ___   ____          U.S.S.G.   2E3.1 (discussing defendant's engagement in a gambling          business); U.S.S.G.   2B6.1(b)(2)  (discussing an enhancement for          being "in  the business  of receiving and  selling" stolen  motor          vehicles or parts).                                          11          that  regularity  is  a  sufficient, but  not  always  necessary,          condition  for the ITB enhancement.  In that case, the defendant,          Esquivel, purchased  350  pairs  of  stolen shoes.    He  quickly          installed  an  elaborate  fencing  operation,  e.g.,   renting  a                                                         ____          warehouse  to store the shoes, carrying a telephone pager so that          his customers  could keep in  touch with him,  and the like.   He          also  implemented   a  sale-by-consignment  system  and  hired  a          deliveryman.  He did not  make casual or isolated sales.   Id. at                                                                     ___          961.   The Fifth  Circuit concluded  that, regardless  of whether          Esquivel had  a history of fencing activities,  his operation was          sufficiently organized and complex  that the district court could          supportably have found  him to  be "in the  business" of  selling          stolen goods for purposes of section 2B1.2(b)(4)(A).  Id. at 960.                                                                ___                    We  agree that  the sophistication  of  the defendant's          operation  is  a second  circumstance  that  may itself  indicate          business  conduct.  We can  easily imagine situations  in which a          fencing  business,  although  very  much  a  business,  has  been          recently launched and therefore traces no historical pattern.  In          order to distinguish a new-to-the-business fence from an amateur,          however, the  government must at  least offer a  meaningful proxy          for  regularity, say,  by  showing that  the operation  crossed a          threshold of sophistication and commitment.                    3.   Applying the Criteria.  On this sparse record, the                    3.   Applying the Criteria.                         _____________________          district  court could  not  plausibly find  either regularity  or          sophistication.   The record is barren of any indication that St.          Cyr  had conducted other fencing operations.  His three jaunts to                                          12          L.L.  Bean do not suggest  regularity to the  degree necessary to          constitute  a business.   By  the same  token, his  operation was          primitive:   he  had no  elaborate communication  or distribution          system,  he  did not  employ assistants,  he  did not  maintain a          sizable inventory  of stolen goods.   Of course, had St.  Cyr not          been apprehended, he might  have continued to ply his  fraudulent          sweater-return  scheme.   At  some point,  the scheme  might have          become   sufficiently   institutionalized   to   meet   the   ITB          requirement.  But  here, the district court  largely negated this          possibility,  finding St.  Cyr  to be  responsible, for  relevant          conduct purposes, see U.S.S.G.   1B1.3(a), only for those twenty-                            ___          two sweaters that he  actually purchased from McKay, not  for the          entire shipment of stolen merchandise.                    We  will light  no  more candles  on  this cake.    The          government  has  simply  not   produced  a  quantum  of  evidence          sufficient to  show, by  any reasonable standard,  that appellant          was engaged  in a business.5   In the  absence of  any indication          that  St.  Cyr  had  installed or  was  developing  a  systematic          operation that would regularly fence stolen property, we find his          casual trafficking  in sweaters insufficient, in  the totality of          the  circumstances, to  justify an  enhancement under  U.S.S.G.                                          ____________________               5The district court rested  its determination that St. Cyr's          activities  constituted a business on  what the court  saw as his          predisposition  to  deal in  stolen property.    While we  do not          dispute the court's conclusions  anent St. Cyr's moral fiber  (or          lack thereof),  his predisposition, without more,  is not legally          relevant  to  the  appropriateness  of  a section  2B1.2(b)(4)(A)          enhancement.   Whether a defendant is  engaged in business within          the  meaning of the sentencing  guidelines is a  test of conduct,          not character.                                          13          2B1.2(b)(4)(A).                             C.  Obstruction of Justice.                             C.  Obstruction of Justice.                                 ______________________                    Appellant asserts  that the district  court incorrectly          applied  a two-level  enhancement for  obstruction of  justice en          route to establishing  the sentencing  range for count  II.   The          relevant guideline reads:                    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.   The district  court  found that  appellant's          conduct  warranted  an  upward adjustment  under  this  guideline          because  he   "provid[ed]  materially  false  information   to  a          probation officer in respect to a presentence . . . investigation          for the court."  U.S.S.G.   3C1.1, comment. (n.3(h)).                    The  pivotal  facts are  these.    Following St.  Cyr's          guilty plea, a probation officer interviewed him in the course of          compiling  the  presentence  report.   In  recounting  his  prior          criminal  record, St.  Cyr  did not  mention three  Massachusetts          larceny convictions that  occurred in  1978.  He  also failed  to          inform the officer that  he pled guilty less than  a year earlier          to having falsely uttered a check.  Although these omissions were          eventually  rectified,  the  officer  testified  that  St.  Cyr's          failure  to provide  a complete record  of his  prior convictions          resulted  in a  substantial delay  in completing  the presentence          report.                    St. Cyr's  first argument is that  his omissions should                                          14          not be penalized because  they caused no actual prejudice  to the          government.   But, this protest overlooks the milieu in which the          omissions   occurred.      Presentence  reports   are   important          ingredients of  the sentencing  process and,  thus, vital to  the          administration  of  the  criminal   justice  system.    Hence,  a          defendant  has  a  solemn obligation  to  be  forthcoming  with a          probation  officer to  ensure that  the court  receives complete,          accurate information.  Providing  materially false information to          a  probation  officer  in  respect to  a  presentence  report  is          culpable and can constitute obstruction of justice even absent  a          showing  of actual prejudice.6  See United States v. Dedeker, 961                                          ___ _____________    _______          F.2d 164, 167 (11th Cir. 1992); United States v. Baker, 894  F.2d                                          _____________    _____          1083, 1084 (9th Cir. 1990).                    Relying on United States v. Tabares, 951  F.2d 405 (1st                               _____________    _______          Cir. 1992),  appellant also  asseverates that the  government did          not  prove  materiality.   In  Tabares,  a codefendant,  Ramirez,                                         _______          relayed an inaccurate social security number in the course of the          presentence investigation.  The district court went up two levels          for obstruction.   We reversed.   Id. at 411-12.   We noted there                                            ___          was  no evidence  that Ramirez  willfully lied  about his  social          security number.   Id. at 411.   We then theorized  that, even if                             ___                                        ____________________               6For  this  reason, St.  Cyr's  repeated  citation of  cases          falling  outside the ambit of Application Note 3(h) do not assist          his  cause.  Most  of  these  authorities  involve  preconviction          statements  made to  law enforcement  officers.   Such statements          invoke  Application  Note 3(g)  and  require a  showing  that the          falsehood  "significantly  obstructed  or  impeded  the  official          investigation or prosecution . . . ."  U.S.S.G.   3C1.1, comment.          (n.3(g)).  Application Note 3(h) contains no such requirement.                                          15          Ramirez had  prevaricated, his  statement could not  have impeded          the investigation  in any material  way because Ramirez  had been          using the same incorrect number for several years.  Id.                                                                ___                    The  case at bar is  easily distinguishable.  Unlike in          Tabares, the criminal history that  St. Cyr omitted was  material          _______          on  its  face.   See,  e.g.,  U.S.S.G.     3C1.1, comment.  (n.5)                           ___   ____          (defining "material . .  . information" as "information  that, if          believed, would  tend  to influence  or  affect the  issue  under          determination").  Under the guidelines, sentencing ranges rest in          substantial part upon a defendant's criminal history.  Bearing in          mind that  the test  of materiality  for purposes  of Application          Note 3(h) is not a stringent one, see, e.g., Dedeker, 961 F.2d at                                            ___  ____  _______          167, we do not hesitate to hold that a defendant's concealment of          important  information about  his criminal  record is  a material          omission  for  purposes of  U.S.S.G.    3C1.1.   See  id.; accord                                                           ___  ___  ______          United  States v.  Delgado, 936  F.2d 303,  306 (7th  Cir. 1991),          ______________     _______          cert. denied, 112 S. Ct. 972 (1992).          _____ ______                    This   brings  us  to   appellant's  third,  and  last,          exhortation:    that the  district  court erred  in  branding his          omissions as  willful. While  we review questions  addressing the          scope of U.S.S.G.    3C1.1 de novo, see United States v. Manning,                                     __ ____  ___ _____________    _______          955 F.2d 770,  774 (1st Cir.  1992), we are  called upon here  to          oversee  the inferences the court drew from St. Cyr's conduct and          from  the  witnesses' credibility.   Factbound  determinations of          this sort are reviewable only for clear error.  See United States                                                          ___ _____________          v. Akitoye, 923 F.2d 221, 229 (1st Cir. 1991).             _______                                          16                    St. Cyr argued to the district court that his omissions          were  inadvertent; he  had  simply forgotten  about his  previous          convictions  under the stress  of the moment.   On that basis, he          claimed  that his  failure to  provide a  complete record  of his          criminal  past was not willful.   The district  court listened to          St.  Cyr testify on this  point and "specifically  [did] not find          that . .  . [his]  testimony [was] persuasive  and credible  with          respect to his version  of those circumstances."  The  court also          heard  from  the  probation  officer,  who  provided  a  markedly          different  account  of  the  interview  and  of  St.  Cyr's later          reaction  to   the   officer's  independent   discovery  of   the          unmentioned  convictions.  In the  end, the court  found that St.          Cyr had  intentionally misled  the probation officer  by omitting          several  convictions from his  criminal history;  and that,  as a          result,the preparationofthepresentencereportwasneedlesslydelayed.                    In the sentencing phase, credibility determinations lie          within the  domain of the district  court.  Only rarely    and in          the most  urgent circumstances    will  we, from the  vista of  a          sterile  appellate record, meddle in  such matters.   There is no          legitimate reason to  do so here.7   Thus, this  issue assumes  a                                        ____________________               7U.S.S.G.   3C1.1, comment. (n.1) suggests that, in applying          the obstruction-of-justice guideline, the  defendant's "testimony          or  statements should be evaluated  in a light  most favorable to          [him]."    St.  Cyr says  that  the  proper  application of  this          language requires  that all evidentiary conflicts  be resolved in          favor  of the defendant.  We have  held many times, however, that          the  Sentencing Commission  did not  mean to  give defendants  so          dazzling a prize.  See United States v. Torres, 960 F.2d 226, 228                             ___ _____________    ______          (1st Cir. 1992);  United States v.  Brum, 948 F.2d 817,  819 (1st                            _____________     ____          Cir. 1991); United States v. Rojo-Alvarez, 944 F.2d 959, 969 (1st                      _____________    ____________          Cir. 1991); United States v. Aymelek,  926 F.2d 64, 68 (1st  Cir.                      _____________    _______          1991); Akitoye, 923 F.2d  at 228-29.  Rather, the  language means                 _______          that,  in  a  borderline  case     one  where  the  judge,  after          scrutinizing  the evidence, has no firm conviction one way or the                                          17          familiar cast:  when there are two plausible views of the record,          the  sentencing  court's adoption  of  one  such view  cannot  be          clearly erroneous.  See United States v. Ruiz,  905 F.2d 499, 508                              ___ _____________    ____          (1st Cir.  1990).   The  obstruction-of-justice enhancement  must          stand.          IV.  CONCLUSION          IV.  CONCLUSION                    We need go no further.  The defendant's convictions are          affirmed,  as is  his  sentence on  count I.    But, because  the          district court incorrectly applied  the guideline enhancement for          those  in the business of  dealing in stolen  property, we vacate          the sentence imposed on  count II and remand for  resentencing in          accordance with this opinion.          Affirmed in part; vacated in part; remanded.          Affirmed in part; vacated in part; remanded.          ___________________________________________                                        ____________________          other   the  defendant should be given the benefit  of the doubt.          In  light of the  district court's emphatic  findings, the quoted          language has no applicability here.                                          18
