                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-8-2003

USA v. Clark
Precedential or Non-Precedential: Precedential

Docket 02-1327




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"USA v. Clark" (2003). 2003 Decisions. Paper 824.
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PRECEDENTIAL

       Filed January 8, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 02-1327

UNITED STATES OF AMERICA,
       Appellee

v.

ANDRE PAUL CLARK, a/k/a Paul Green,
       Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 01-cr-00242-1)
District Judge: Honorable James F. McClure, Jr.

Argued October 31, 2002

Before: NYGAARD and WEIS, Circuit Judges, and
IRENAS,* District Judge.

Filed: January 8, 2003
_________________________________________________________________

* The Honorable Joseph E. Irenas, United States District Judge for the
District of New Jersey, sitting by designation.


       Daniel I. Siegel, Esquire (ARGUED)
        Assistant Federal Public Defender
       James V. Wade, Esquire
        Federal Public Defender
       100 Chestnut Street, Suite 306
       Harrisburg, PA 17101

        Attorneys for Appellant
       Andre Paul Clark, a/k/a
       Paul Green

       George J. Rocktashel, Esquire
        (ARGUED)
        Assistant United States Attorney
       Thomas A. Marino, Esquire
        United States Attorney
       Federal Building, Suite 316
       240 West Third Street
       Williamsport, PA 17701

        Attorneys for Appellee
       United States of America

OPINION OF THE COURT

WEIS, Circuit Judge.
The District Court imposed an enhancement for
obstruction of justice because in addition to oral
statements, defendant produced a bogus birth certificate to
support his false claim of United States citizenship. We
reverse concluding that supplying the forged document was
a constituent part of the charged offense and, hence,
enhancing the sentence amounted to double counting.

Defendant pleaded guilty to one count under 18 U.S.C.
S 911 for falsely representing himself to be a citizen of the
United States. The indictment charged "that defendant did
falsely state to agents and employees of the United States
Department of Justice, Immigration and Naturalization
Service, Bureau of Prisons, and the United States Probation
Office, United States District Court for the District of
Columbia, that he was born in the Virgin Islands" when, in
fact, he was born in Jamaica.

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During the plea colloquy, the Assistant United States
Attorney advised the court that the government had
evidence of information supplied to the New York
Department of Corrections that identified defendant, not as
Andre Paul Clark, but as Paul Green, birthplace, Jamaica.
The Immigration and Naturalization Service at Riker’s
Island had also been supplied similar information.

On several different occasions, defendant stated that he
was born in the Virgins Islands. During a 1997 presentence
investigation, he told a probation officer in the District of
Columbia that his name was Andre Paul Clark and he had
been born on March 10, 1966 in the Virgin Islands.

On February 10, 1999 when defendant was confined at
FCI McKean, he informed an INS agent during a telephone
conversation that his name was Andre Paul Clark and he
had been born in the Virgin Islands. During an interview
with an INS agent at FCI Allenwood on January 24, 2000,
defendant repeated that misinformation. A check of the
Virgin Island Birth Certificate Records at that time proved
negative.

On May 11, 2000, defendant gave a Bureau of Prison
official a forged birth certificate from the Virgin islands. The
document was forwarded to the INS, which then reviewed
its computer entries. These records revealed that defendant
was, in fact, Paul Green. After inquiry, Jamaican
authorities confirmed that defendant was Paul Green who
had a conviction record on that Island.

18 U.S.C. S 911 is a model of brevity. It reads: "Whoever
falsely and willfully represents himself to be a citizen of the
United States shall be fined under this title or imprisoned
not more than three years, or both."

The presentence report recommended an enhancement
for obstruction of justice under U.S.S.G. S 3C1.1,
application note 4(c), because the defendant attempted to
hinder the INS investigation by providing a counterfeit birth
certificate. At sentencing, the government contended that
providing the bogus birth certificate was additional criminal
conduct separate and apart from the basic underlying
offense of falsely representing identity and nationality.
Accepting that argument and applying the enhancement,

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the district judge sentenced defendant to 18 months
imprisonment, the minimum term within the applicable
guideline range.

U.S.S.G. S 3C1.1 reads:

        "If (A) the defendant willfully obstructed or impeded,
       or attempted to obstruct or impede, the administration
       of justice during the course of the investigation,
       prosecution, or sentencing of the instant offense of
       conviction, and (B) the obstructive conduct related to
       (I) the defendant’s offense of conviction and any
       relevant conduct; or (ii) a closely related offense,
       increase the offense level by 2 levels."

Application note 4(c) of the guideline lists as an example
of conduct to which the enhancement would apply:
"producing or attempting to produce a false, altered, or
counterfeit document or record during an official
investigation or judicial proceeding."

The government relies on United States v. Imenec , 193
F.3d 206 (3d Cir. 1999), where we upheld an obstruction
enhancement. In that case, defendant failed to appear in
state court for a preliminary hearing on drug charges, and
remained a fugitive for more than three years. Imenec, 193
F.3d at 207. Defendant was indicted by a federal grand jury
on the same drug charges, and after he was finally
apprehended, he pleaded guilty in the District Court. Id.

We concluded that Imenec had obstructed the federal
prosecution based on his failure to appear at the state
preliminary hearing. Id. at 210. We explained "that the
Sentencing Commission’s intent was to impose an
enhancement for any conduct that obstructs an
investigation . . . that is based on the criminal conduct
underlying the specific statutory offense for which
defendant is being sentenced." Id. at 208.

As we observed in United States v. Jenkins, 275 F.3d
283, 291 (3d Cir. 2001), "[d]espite several amendments,
U.S.S.G. S 3C1.1 is no model of clarity. [O]bstructive
conduct cannot merely affect some global application of the
‘administration of justice.’ [T]here must be a nexus between
the defendant’s conduct and the investigation. . . ." In that

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case, we decided that the obstruction enhancement did not
apply because the defendant’s failure to appear in state
court did not "compromise[ ] the federal investigation in any
way." Id. at 290. "Only conduct obstructing the ‘instant
offense of conviction’ is relevant to sentencing." Id. at 289.

The Court in United States v. Agoro, 996 F.2d 1288, 1293
(1st Cir. 1993), found the enhancement proper when the
defendant made false statements to a probation officer in
connection with the presentence report because that speech
"further" obstructed the investigation. The Court noted,
however, that there was "no risk of double counting" in that
situation. Id.

In United States v. Sabino, 307 F.3d 446 (6th Cir. 2002),
the trial court judge declined to impose an obstruction
enhancement because he believed it would amount to
double counting. He reasoned that the enhancement was
inappropriate because the defendant’s lies to the grand jury
were part and parcel of the charged conspiracy. Id. at 448.
The Court of Appeals disagreed, concluding that false
statements to a grand jury were qualitatively different in
their tendency to impede the administration of justice in
the courts. Id. at 451.

Coming to the opposite conclusion, however, in United
States v. Lloyd, 947 F.2d 339, 340 (8th Cir. 1991), the
Court reversed an obstruction enhancement on a conviction
for concealing assets from civil officers where the defendant
committed perjury during bankruptcy proceedings. The
Court held that "[s]ection 3C1.1 does not apply to conduct
that is part of the crime itself." Id.

Similarly, in United States v. Lamere, 980 F.2d 506, 517
(8th Cir. 1992), the Court reversed an obstruction
enhancement based on an attempt to conceal evidence
consisting of counterfeit money. The Court noted that the
defendant had pleaded guilty to possessing or concealing
counterfeit currency, and thus the "obstruction
enhancement . . . was based upon conduct that was
coterminous with the conduct for which he was convicted."
Id. The Court explained that such an enhancement
amounted to "double counting." Id. See also United States
v. Fredette, 15 F.3d 272, 275 (2d Cir. 1994) (observing that

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the Sentencing Commission did not intend sentence
enhancement to be applicable when it would amount to
double counting).

It appears that a conflict exists between the Courts of
Appeal for the Sixth and Eighth Circuits. In reviewing their
respective interpretations of the Sentencing Guideline, we
are persuaded by the Eighth’s reasoning rather than that of
the Sixth.

Here, the conduct that is cited as an obstruction is
actually activity that is part of the underlying charged
offense. The indictment states that "[f]rom on or about
September, 1997, exact date unknown, and continuing
through the date of this indictment [July 25, 2001], in
Lycoming County . . . and elsewhere . . . the [d]efendant did
falsely and wilfully . . . represent himself. . . ." The
production of the bogus birth certificate occurred within the
cited period, and thus is encompassed within the time the
crime was said to have occurred.

Moreover, we have no difficulty in holding that the
production of the counterfeit birth certificate to the federal
authorities constituted a false representation that the
defendant had been born in the Virgin Islands and
consequently was a United States citizen. Although of a
different order than the defendant’s oral statements, it had
precisely the same effect and was a violation of 18 U.S.C.
S 911.

We conclude that the production of the counterfeit birth
certificate was coterminous with the offense to which
defendant pleaded guilty. Consequently, it cannot be the
basis of an obstruction of justice enhancement.

Accordingly, the sentence will be vacated and the case
remanded to the District Court for resentencing.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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