         11-0943-cr
         United States v. McMaster

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of February, two thousand twelve.
 5
 6       PRESENT: BARRINGTON D. PARKER,
 7                RICHARD C. WESLEY,
 8                RAYMOND J. LOHIER, JR.,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                      v.                                           11-0943-cr
18
19       JOSEPH MCMASTER,
20
21                                     Defendant-Appellant.
22
23
24
25
26
27       FOR APPELLANT:                DAVID TOUGER, Peluso & Touger, LLP, New
28                                     York, NY.
29
30       FOR APPELLEE:                 TELEMACHUS P. KASULIS, Assistant United
31                                     States Attorney (Katherine Polk Failla,
32                                     Assistant United States Attorney, on the
33                                     brief), for Preet Bharara, United States
34                                     Attorney for the Southern District of New
35                                     York, New York, NY
1
2         Appeal from the United States District Court for the
3    Southern District of New York (Sullivan, J.).
4
5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

6    AND DECREED that the judgment of the United States District

7    Court for the Southern District of New York imposing a

8    sentence of 90 months’ imprisonment is AFFIRMED.

9        Appellant Joseph McMaster contests only the district

10   court’s imposition of a two-level Guidelines enhancement for

11   obstruction of justice under U.S.S.G. § 3C1.1.   We assume

12   the parties’ familiarity with the underlying facts and

13   procedural history.

14       We review a district court’s imposition of an

15   enhancement for obstruction of justice under a mixed

16   standard of review.   The district court’s findings “as to

17   what acts were performed, what was said, what the speaker

18   meant by her words, and how a listener would reasonably

19   interpret those words will be upheld unless they are clearly

20   erroneous.”   United States v. Cassiliano, 137 F.3d 742, 745

21   (2d Cir. 1998).   The district court’s determination that the

22   “facts constitute obstruction . . . under the Guidelines,

23   however, is a matter of legal interpretation reviewed de

24   novo, giving due deference to the district court's


                                   2
1    application of the guidelines to the facts.”    Id. (internal

2    quotation marks and citations omitted).

3        McMaster argues that the district court erred by

4    imposing an obstruction of justice enhancement without

5    making the requisite finding that he had the “specific

6    intent to obstruct justice, i.e., that [he] consciously

7    acted with the purpose of obstructing justice.”    United

8    States v. Woodard, 239 F.3d 159, 162 (2d Cir. 2001)

9    (internal quotation marks omitted).   Section 3C1.1 provides:

10   “If the defendant willfully obstructed or impeded, or

11   attempted to obstruct or impede, the administration of

12   justice with respect to the investigation, prosecution, or

13   sentencing of the instant offense . . . increase the offense

14   level by 2 levels.”   U.S.S.G. § 3C1.1.   Generally, in order

15   to apply this enhancement, the district court must find that

16   the defendant acted with “specific intent to obstruct

17   justice.”   Woodard, 239 F.3d at 162 (internal quotation

18   marks omitted).   We have held, however, that “[c]ertain

19   conduct . . . such as intentionally failing to appear as

20   required at judicial proceedings, is so inherently

21   obstructive of the administration of justice that it is

22   sufficient that the defendant willfully engaged in the


                                   3
1    underlying conduct, regardless of his specific purpose.”

2    United States v. Reed, 49 F.3d 895, 900 (2d Cir. 1995).        For

3    instance, in United States v. Labella-Szuba, 92 F.3d 136,

4    139 (2d Cir. 1996), we held that “the fact that [the

5    defendant] consciously failed to appear at a judicial

6    proceeding is sufficient for [an obstruction of justice]

7    enhancement.”

8        Here, the undisputed facts are that McMaster knew that

9    he had been ordered to appear for a bail hearing on October

10   16, 2009. On that day, McMaster contacted the case agent and

11   informed him that he was considering not appearing in court

12   as ordered.     Although the case agent attempted to convince

13   McMaster to surrender or appear in court, McMaster instead

14   chose not to appear and fled to Arizona where he remained

15   until his arrest in February 2010.     Thus, regardless of

16   whether McMaster acted with the specific purpose of

17   obstructing the administration of justice, the fact that he

18   consciously failed to appear at a judicial proceeding is

19   sufficient for a § 3C1.1 enhancement.     Labella-Szuba, 92

20   F.3d at 139.     Accordingly, the district court’s two-level

21   enhancement of McMaster’s offense level was not erroneous.

22


                                     4
1        We have considered McMaster’s remaining arguments and,

2    after a thorough review of the record, find them to be

3    without merit.

4        For the foregoing reasons, the judgment of the district

5    court imposing a sentence of 90 months’ imprisonment is

6    hereby AFFIRMED.

 7
 8                              FOR THE COURT:
 9                              Catherine O’Hagan Wolfe, Clerk
10
11




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