
USCA1 Opinion

	




        September 9, 1992       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1158                                    UNITED STATES,                                      Appellee,                                          v.                                   JOHN P. KENNEDY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                         Torruella and Stahl, Circuit Judges,                                              ______________                             and Hornby,* District Judge.                                          ______________                                 ____________________            Marie T. Roebuck, by Appointment of the Court, for appellant.            ________________            Ira Belkin,  Assistant United States  Attorney, with whom  Lincoln            __________                                                 _______        C.  Almond,  United States  Attorney,  Margaret  E. Curran,  Assistant        __________                             ___________________        United  States  Attorney, and  Anthony  C.  DiGioia, Assistant  United                                       ____________________        States Attorney, were on brief for appellee.                                 ____________________                                 ____________________        _____________________        * Of the District of Maine, sitting by designation.                    HORNBY,  District Judge.   This  case raises  Guideline                             ______________          sentencing issues,  only one of which  deserves extended comment.          We hold that a defendant's perjury at his sentencing, even though          limited to a count where he maintains his innocence, justifies an          obstruction of  justice enhancement under U.S.S.G.    3C1.1 and a          denial of acceptance of responsibility under U.S.S.G.   3E1.1.                    The  defendant entered a plea of Not Guilty to Count VI          of  the Indictment, which  charged him with  impersonating an IRS          employee.  A  plea agreement  provided that this  count would  be          dismissed  at sentencing  on the  other counts,  to which  he did          plead Guilty.  The prosecutor stated on the record at the Rule 11          hearing,  however, that  the  Government would  seek a  two-level          enhancement  for the  conduct underlying the  impersonation count          because that was conduct relevant to the admitted offenses.                    If the  defendant subsequently  had simply  declined to          say anything  about the alleged impersonation,  his silence would          not  have denied  him a  two-level  adjustment for  acceptance of          responsibility  under U.S.S.G.    3E1.1.   This Circuit  holds it          inappropriate to deny the reduction for refusing to admit conduct          involved in a charge to which a defendant has pleaded Not Guilty.          United States  v. Perez-Franco, 873  F.2d 455,  463-64 (1st  Cir.          ______________________________          1989).  Accord United  States v. Rogers, 921 F.2d 975,  982 (10th                  ______ ________________________          Cir.), cert. denied,  ___ U.S. ___, 111 S. Ct. 113, 112 L. Ed. 2d                 ____  ______          83 (1990); United States v. Piper, 918 F.2d 839, 840-41 (9th Cir.                     ______________________          1990);  United States v. Oliveras, 905 F.2d 623, 628-32 (2nd Cir.                  _________________________          1990).  But see  United States v. Mourning, 914  F.2d 699, 705-07                  ___ ___  _________________________                                         -2-          (5th  Cir. 1990); United States  v. Ignacio Munio,  909 F.2d 436,                            _______________________________          439 n.11 (11th Cir. 1990), cert. denied, ___ U.S. ___, 111 S. Ct.                                     ____  ______          1393, 113 L. Ed. 2d 449 (1991); United States v. Gordon, 895 F.2d                                          _______________________          932,  936-37 (4th Cir.), cert.  denied, ___ U.S.  ___, 111 S. Ct.                                   ____   ______          131, 112 L. Ed. 2d 98 (1990).  But this defendant elected to take          the  stand at  his  sentencing hearing.    He then,  under  oath,          provided  testimony (concerning  the alleged  impersonation) that          the  District Court  supportably  found to  be materially  false.          Perjury at  a sentencing hearing clearly  justifies the two-level          enhancement for obstruction  of justice  under U.S.S.G.    3C1.1.          See U.S.S.G.    3C1.1,  comment. (n.3(b))  (specifically  listing          ___          perjury  as   one  of  the   kinds  of  conduct   justifying  the          enhancement).   As for acceptance of  responsibility, his perjury          behavior  took the defendant out  of the "safe  harbor" that this          Circuit  has  otherwise provided  for  simply  maintaining a  Not          Guilty plea.   Moreover, Application note  4 to U.S.S.G.    3E1.1          recognizes  that,  although there  may be  "extraordinary cases,"          conduct  justifying   an  enhancement  for   obstructing  justice          "ordinarily  indicates  that  the  defendant  has  not   accepted          responsibility  for  his criminal  conduct."   U.S.S.G.    3E1.1,          comment.  (n.4).   This  is  not  an  extraordinary  case.    The          sentencing  judge  was  fully   entitled  to  conclude  that  the          defendant's perjury at the sentencing hearing showed a failure to                                         -3-          accept  responsibility.  Perjury as to relevant conduct is not at          all like maintaining a Not Guilty plea.1                    We dispose of the other issues summarily.  The District          Court  proceeded   to  find   that  the  defendant   had  falsely          represented himself  to be an Internal  Revenue Service employee.          The   court  accordingly   applied   an   appropriate   two-level          enhancement to the Base  Offense Level because there was  a clear          nexus  between this conduct and  the fraud offenses  to which the          defendant  pleaded  Guilty.   See  U.S.S.G.    2F1.1(b)(3).   The                                        ___          District   Court's  factual   determination,  reached   after  an          evidentiary hearing, was not  clearly erroneous, United States v.                                                           ________________          Connell,  960 F.2d 191, 193 (1st Cir.  1992).  The District Court          _______          was entitled to rely upon  hearsay testimony,2 see United  States                                                         ___ ______________          v. Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990), cert. denied,          _________________                                   ____  ______                                        ____________________               1 We  do not  rely  upon it,  but  observe that  a  proposed          revision to Guideline 3E1.1 commentary would make this explicit:                    A defendant  may remain silent  in respect to                    relevant  conduct  beyond   the  offense   of                    conviction without affecting  his ability  to                    obtain  a  reduction  under this  subsection.                    However, a  defendant who falsely  denies, or                    frivolously  contests, relevant  conduct that                    the Court determines to  be true has acted in                    a  manner  inconsistent  with  acceptance  of                    responsibility.          Proposed Amendment to Sentencing  Guidelines of the United States          Courts,  57 Fed.  Reg. 20,148,  20,156 (1992)  (proposed May  11,          1992).               2 Here, the defendant did  not raise any confrontation issue          at the hearing.                                         -4-          ___ U.S. ___, 111 S. Ct. 2039, 114 L. Ed. 2d 123  (1991), as well          as its disbelief of the defendant's testimony.                    Contrary  to the  defendant's argument,  the Guidelines          provide  that this enhancement  under U.S.S.G.    2F1.1(b)(3) for          impersonation can  be added to that  under U.S.S.G.   2F1.1(b)(2)          for more than minimal planning.  Only the adjustments in U.S.S.G.            2F1.1(b)(3)  itself  are  mutually exclusive.3    Accord United                                                              ______ ______          States  v.  Villarino, 930  F.2d  1527,  1529  (11th Cir.  1991).          _____________________          Applying  both enhancements  does not  result in  double counting          because the  enhancement for more than minimal  planning is based          on  a  different factual  premise  than  that for  impersonation.          Moreover, nothing in the Guideline caps these enhancements  at an          offense  level of ten.   Indeed, if the impersonation enhancement          applies,   ten  is   the   minimum  offense   level.     U.S.S.G.                                     _______            2F1.1(b)(3).                    Finally, because the difference between the minimum and          maximum  terms in the Guideline  range here was  only six months,          the District  Court was not required to state its reasons for the                                        ____________________               3 Prior  to November  1, 1989,  the enhancement  in U.S.S.G.            2F1.1(b)(3) had been included in U.S.S.G.   2F1.1(b)(2).  Under          that  earlier version  of  the Guidelines,  the enhancements  for          impersonation  and  more  than  minimal  planning  were  mutually          exclusive.   Effective November 1, 1989,  however, the Guidelines          were amended by splitting the  enhancements contained in the  old          version of U.S.S.G.    2F1.1(b)(2) into two  separate categories.          The  impersonation  enhancement (along  with  an  enhancement for          violation  of  judicial  orders)  became  U.S.S.G.   2F1.1(b)(3).          Only the adjustments within U.S.S.G.   2F1.1(b)(3)  are described          ____          as  mutually exclusive.   See  U.S.S.G.   2F1.1,  comment. (n.1).                                    ___          Nothing  prevents application  of  one enhancement  from each  of          U.S.S.G.   2F1.1(b)(3) and   2F1.1(b)(2).                                         -5-          specific point  within the Guideline range at  which it sentenced          the defendant.  See 18 U.S.C.   3553(c).                          ___                    The judgment of the district court is AFFIRMED.                                                          ________                                         -6-
