                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2007

USA v. Nunez-May
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4580




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                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 06-4580


                           UNITED STATES OF AMERICA

                                        v.

                              RAHISY NUNEZ-MAY,

                                    Appellant



                  On Appeal from the United States District Court
                            for the District of New Jersey
                              (D.C. No. 00-cr-00776-2)
                  District Judge: Honorable Harold A. Ackerman
                                     _________

                    Submitted under Third Circuit LAR 34.1(a)

                                   May 11, 2007


           Before: RENDELL, JORDAN and ALDISERT, Circuit Judges.

                               (Filed May 31, 2007)



                             OPINION OF THE COURT



ALDISERT, Circuit Judge.
       On June 26, 2001, Rahisy Nunez-May pleaded guilty to conspiracy to commit food

stamp fraud, in violation of 18 U.S.C. § 371. The District Court for the District of New

Jersey sentenced Nunez-May to 21 months of imprisonment and three years of supervised

release. The District Court also imposed $370,716 in restitution. Nunez-May now

appeals her punishment. She contends that the District Court: (1) erred by imposing a

two-level increase for obstruction of justice, (2) incorrectly declined to award a two-level

reduction for acceptance of responsibility, (3) miscalculated the loss total, and (4) failed

to properly consider the 18 U.S.C. § 3553(a) factors at sentencing. We conclude that

Appellant’s arguments lack merit and, accordingly, we will affirm the judgment of the

District Court.

                                              I.

       The parties are familiar with the facts and proceedings, so we will only briefly

revisit them here. In 1998, Rahisy Nunez-May emigrated from the Dominican Republic

and found a job working as a cashier in a Newark grocery store. Unfortunately for the

Appellant, she quickly found herself in the middle of a scheme intended to defraud the

United States government. Under the direction of her employer, Nunez-May and three

other cashiers made illegal cash distributions in exchange for their customers’ food stamp

vouchers. The Appellant and her co-conspirators exacted a hefty fee for each of these

fraudulent transactions. For example, on February 5, 1999, Nunez-May swapped $70

cash and $7.38 in groceries for $107.38 in redeemable food stamp benefits. After a

lengthy investigation by the Department of Agriculture, the Government estimated that

                                              2
the fraud cost taxpayers approximately $1,482,864 during a 16-month period.

       On June 26, 2001, Nunez-May pleaded guilty to a one-count indictment of

conspiracy to commit food stamp fraud. As part of her guilty plea, Nunez-May stipulated

that the offense resulted in a criminal loss foreseeable to the Defendant of more than

$350,000, but less than $500,000. The District Court accepted Nunez-May’s guilty plea

and released her without bond, pending sentencing. The Court, however, required her to

remain in Essex County, New Jersey.

       The parties agree that Nunez-May did not live up to the terms of her pre-

sentencing release. In December of 2005, Nunez-May vacated her home in New Jersey

and traveled to the Dominican Republic using a fraudulent passport. The District Court

issued an absconder’s warrant for her arrest on January 31, 2006. Two weeks later,

United States Marshals located Nunez-May in the Dominican Republic and instructed her

to return to the United States. Nunez-May then traveled to Puerto Rico where Marshals

put her under arrest.1

       At sentencing on the food stamp charge, the government argued that Nunez-May

had obstructed justice by escaping the country—conduct that warranted a two-level

increase to her base offense level. The government further contended that Nunez-May’s

actions barred her from claiming a two-level reduction for acceptance of responsibility.


       1
          We also note that on September 24, 2004, Washington, D.C. police arrested her
for prostitution under the alias “Mercedes Ortega.” Not only did she fail to inform
Pretrial Services that she had traveled outside Essex County, but she did not report she
had been arrested.

                                             3
Nunez-May responded that she did not “escape” the jurisdiction, but rather traveled on a

mission of mercy. Specifically, she argued that she flew to the Dominican Republic to

visit her ailing mother, who had suffered a stroke on December 5, 2005. Based on

information contained in the Presentence Investigation Report, the District Judge rejected

Nunez-May’s arguments, concluding that “unauthorized travel outside of the United

States for an extended period of time under a fraudulent alias” constitutes obstruction of

justice. The District Court also found that the Appellant obstructed justice by providing

materially false information to law enforcement. Based on these conclusions, the court

set the total offense level at 16. This calculation exposed Nunez-May to a range of 21 to

27 months of incarceration under the advisory sentencing guidelines. On the issue of

restitution, the District Judge determined that Nunez-May’s criminal conduct caused a

foreseeable loss of $370,716—well within the range stipulated by her plea agreement.

Finally, after weighing the sentencing factors, the District Court imposed a sentence of 21

months of imprisonment. Nunez-May now appeals.2

                                                II.

       At the heart of this appeal, Nunez-May contends that the District Court improperly

calculated her Guidelines sentencing range.3 She first argues that the District Court erred

by imposing a two-level sentence enhancement for obstruction of justice. The Appellant

       2
           We have jurisdiction to hear this appeal under 18 U.S.C. § 3742(a)(1).
       3
         We exercise plenary review over a district court’s legal interpretation of the Sentencing
Guidelines, but our review of the factual findings supporting a district court’s application of the
Guidelines is only for clear error. See United States v. Siegel, 477 F.3d 87, 89-90 (3d Cir. 2007).

                                                 4
contends that her unauthorized trip to the Dominican Republic constitutes run-of-the-mill

“unauthorized travel,” not obstruction. We reject this argument.

       A two-level sentencing enhancement for obstruction of justice under U.S.S.G. §

3C1.1 is appropriate where the court finds that “the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of justice during the

course of the . . . sentencing on the instant offense . . . .” U.S.S.G. § 3C1.1. Among the

acts to which this Guideline is applicable is “escaping or attempting to escape from

custody before trial or sentencing.” U.S.S.G. § 3C1.1, cmt. n.4(e).

       In this case, Nunez-May boldly gathered false identification documents as early as

May of 2005, applied for and received a fraudulent passport, left the territorial

jurisdiction of the United States, failed to inform pretrial services of her whereabouts, and

showed no signs of returning to the United States until the U.S. Marshals intervened.

From beginning to end, Nunez-May’s acts were calculated to remove herself from

supervision of the District Court and avoid detection by law enforcement officials. In the

eyes of this Court, such conduct amounts to a very serious form of escape. See, e.g.,

United States v. Abuhouran, 162 F.3d 230, 234 (3d Cir. 1998) (holding that defendant’s

destruction of tracking bracelet and trip to airport constituted “a very serious obstruction

of justice”).

       That Nunez-May’s flight occurred while she was on pretrial release does not

render her conduct any more appropriate. See, e.g., United States v. Draper, 996 F.2d

982 (9th Cir. 1993) (holding that escape from pretrial release constitutes obstruction of

                                              5
justice); United States v. Defeo, 36 F.3d 272, 276-277 (2d Cir. 1994) (same); United

States v. Shinder, 8 F.3d 633, 635 (8th Cir. 1993) (same); United States v. McCarthy, 961

F.2d 972, 979-980 (1st Cir. 1992) (same).

       We also reject Nunez-May’s argument that the penalty for obstruction only applies

once a defendant misses a scheduled court date. Guidelines section 3C1.1 and its

accompanying commentary indicate that a simple attempt to escape is sufficient to

warrant the obstruction adjustment. See U.S.S.G. § 3C1.1, cmt. n.3(e); see also United

States v. Keats, 937 F.2d 58, 67-68 (2d Cir. 1991) (affirming obstruction adjustment

where evidence indicated that defendant was about to leave country prior to trial).

Nunez-May’s flight out of the country, which imposed costs on pretrial services and the

U.S. Marshals, certainly qualifies as more than an attempt. Accordingly, we conclude

that the District Court did not err in deciding to impose a two-level sentencing

enhancement for obstruction of justice.

                                            III.

       We next turn to Nunez-May’s argument that she deserved a two-level sentencing

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a). Section 3E1.1

provides for a reduction in offense level “[i]f the defendent clearly demonstrates

acceptance of responsibility for [her] offense.”

       Our analysis begins by noting that the Appellant must cross many bridges to put

her argument on firm legal ground. Demonstrating acceptance of responsibility requires a

genuine show of contrition, United States v. Muhammad, 146 F.3d 161, 168 (3d Cir.

                                             6
1998), and the defendant bears the burden of establishing by a preponderance of the

evidence that he is entitled to the reduction. See United States v. Rodriguez, 975 F.2d

999, 1008 (3d Cir. 1992). Moreover, under the precedent of this Court, a defendant who

obstructs justice ordinarily may not claim to have accepted responsibility for his criminal

conduct.4 See U.S.S.G. § 3E1.1, cmt. n.4 (“Conduct resulting in an enhancement under §

3C1.1 . . . ordinarily indicates that the defendant has not accepted responsibility for his

criminal conduct.”); United States v. Batista, --- F.3d --- 2007 WL 1202693 at *4 (3d Cir.

April 25, 2007).

       The Sentencing Guidelines, however, make it clear that the a two-point increase

for obstruction of justice does not, per se, doom an acceptance-of-responsibility motion.

The law acknowledges that there “may . . . be extraordinary cases in which adjustments

under both §§ 3C1.1 and 3E1.1 may apply.” U.S.S.G. § 3E1.1, cmt. n.4. At sentencing,

Nunez-May contended that hers is one of these “extraordinary cases” contemplated by the

Guidelines. Under her theory of the case, an emergency visit to an ailing parent should

not undermine a defendant’s acceptance of responsibility.

       The District Court considered this argument at length. It concluded that Nunez-

May had shown some acceptance of responsibility by admitting her guilt and showing “a

certain degree of cooperation with the Government in disclosing the workings of the



       4
         Whether a defendant clearly demonstrates acceptance of responsibility is
“essentially factual” and is therefore reviewed for clear error only. United States v. Ortiz,
878 F.2d 125, 128 (3d Cir. 1989).

                                              7
conspiracy.” The District Court, nevertheless, determined that Nunez-May’s case was not

so extraordinary as to merit a reduction for acceptance of responsibility. The District

Court based its conclusion on information contained in the Presentence Investigation

Report (“PSR”). The PSR stated that Nunez-May, after entering her guilty plea, acquired

numerous false identification documents and made further unauthorized trips to Antigua

and Peru. See Rule 32(f), Federal Rules of Criminal Procedure;5 Rule 32(1)(3)(A),

Federal Rules of Criminal Procedure (a sentencing court may accept any undisputed

portion of the PSR as a finding of fact); United States v. Campbell, 295 F.3d 398, 406 (3d

Cir. 2002) (same). In light of the nature of Nunez-May’s obstruction, her conduct during

pre-trial release, and the principles underlying Application Note 4 to § 3E1.1, we

determine that the District Court did not err by finding that she failed to accept

responsibility for her actions.

                                             IV.

       Nunez-May next argues that the District Court improperly concluded that her

participation in the conspiracy caused a foreseeable loss of $370,716.6 Because this

amount exceeded $350,000, the District Judge enhanced her base offense level 9 points in



       5
         Rule 32(f) provides that a party must communicate in writing to the probation
officer “any objections . . . to material information . . . contained in or omitted from the
report” within 14 days after receiving the Presentence Investigation Report. Here, Nunez-
May first raised her objections to the PSR at the sentencing hearing.
       6
        On appeal, we review loss determination for clear error. United States v.
Brennan, 326 F.3d 176, 194 (3d Cir. 2003).

                                              8
accordance with U.S. Sentencing Guidelines section 2F1.1(b)(1)(L).

       The parties agree on the applicable legal framework; while loss must be

established by a preponderance of the evidence, see United States v. Evans, 155 F.3d 245,

253 (3d Cir. 1998), the application notes to Sentencing Guidelines state that losses “need

not be determined with precision.” U.S.S.G. § 2F1.1 cmt. n.9. Courts may “make a

reasonable estimate of the loss, given the available information.” Id. Nunez-May

complains that the District Court did not meet this standard. She contends that the

District Judge only “guesstimated” the loss attributable to her actions.

       We cannot agree. Our review of the proceedings indicates that the District Court

was presented with a fully developed record as to the parties’ competing calculations of

the loss amount. The Government put forth that the Nunez-May’s place of employment

processed $2,085,133 worth of electronic food stamp debits from January 1, 1998 until

May 5, 2000. Surveillance conducted by the Department of Agriculture revealed that

approximately $1,482,864 of these were fraudulent transactions.7 The Government then

attributed one-fourth of the total loss ($370,716) to each of the four cashiers who

participated in the conspiracy. In response to the Government’s argument, Nunez-May

argued for a loss calculation of $185,000.

       The District Court’s remarks at sentencing make patently clear that it rejected the



       7
         This conclusion was well supported by a Department of Agriculture
investigation, which found that cooperating witnesses had received 71 cents in cash for
every food stamp dollar they offered the grocery store.

                                             9
Appellant’s proposed loss calculation and expressly adopted the government’s reasoning.

Based on these facts, we cannot say that the District Court’s loss calculation was clearly

erroneous.

                                             V.

       Nunez-May’s contention that her sentence is unreasonable also lacks merit. In

United States v. Cooper we stated that there are two components to our reasonableness

review: (1) an examination of the court’s treatment of the relevant sentencing factors, and

(2) a review of how the court applied the relevant factors to the facts of the case at hand.

See United States v. Cooper, 437 F.3d 324, 329-330 (3d Cir. 2006). Although a

sentencing court does not need to make explicit findings on each factor, it must be clear

from the record that “it took the factors into account in sentencing.” Id. at 329. The

record must indicate that the sentencing court gave them meaningful consideration and

that it addressed all arguments raised by the parties that rest upon “a ground of recognized

legal merit (provided they have a factual basis).” Id. (quoting United States v.

Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)).

       At the sentencing hearing, the District Court engaged in a lengthy discussion of the

18 U.S.C. § 3553(a) sentencing factors. Because of the Court’s great thoroughness, we

need not recount its entire discussion here. We note, however, that the District Court

examined each factor in turn, and explained how the sentence would address that factor’s

purpose. We are satisfied that Nunez-May’s sentence was not unreasonable.

                                         ******

                                             10
      We have considered all of the arguments advanced by the parties and conclude that

no further discussion is necessary. Accordingly, the judgment of the District Court will

be affirmed.




                                            11
