
USCA1 Opinion

	




          September 7, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2407                                    UNITED STATES,                                      Appellee,                                          v.                                 TEODORO SAMUEL MELO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Ernest Barone on brief for appellant.            _____________            Edwin  J. Gale,  United  States Attorney,  and  Zechariah  Chafee,            ______________                                  _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.   Teodoro Samuel  Melo pled  guilty to                      ___________            distributing  and  possessing   with  intent  to   distribute            cocaine.  He is  now challenging the sentence imposed  on him            by the district court.  We affirm.                      After   pleading   guilty,   a  probation   officer            interviewed  Melo  for purposes  of  preparing a  presentence            report.  Melo's  court-appointed counsel was  not present  at            the interview.   During the interview,  the probation officer            asked Melo if he  had ever been arrested; Melo  answered that            he had not.   The probation officer discovered that  Melo had            been  arrested  and  indicted  under  a  different  name  for            possessing  a firearm and  resisting arrest in  New York, and            that subsequently  a bench  warrant for  his arrest  had been            issued  (we  assume because  he  failed to  appear  after his            release).  The  probation officer also  discovered that  Melo            had given false names for his siblings at the  interview.  At            a  follow-up  interview  attended  by  Melo's  counsel,  Melo            admitted  that  he had  intentionally  lied  about his  prior            arrest because  he was "scared of the  Feds," and that he had            lied about the names of his siblings to prevent the probation            officer from  contacting  them  and  learning  of  his  prior            arrest.                        The presentence report  recommended that the  court            increase Melo's base  offense level under sentence  guideline            3C1.1  for  obstruction  of  justice.    See  United   States                                                     ___            Sentencing  Commission, Guidelines  Manual    3C1.1, comment.                                    __________________            (n.3(h))  (Nov. 1992)  (providing for  an enhancement  if the            defendant gives  "materially false information to a probation            officer in  respect to  a presentence or  other investigation            for the court").  It also noted that the court could consider            an upward departure from the sentencing guideline range since            Melo had committed the drug offense while on pretrial release            for the New York offense.   See id.   4A1.3 (suggesting  that                                        _______            departure  from  the  otherwise applicable  criminal  history            category might be appropriate if the defendant had "committed            the  instant offense while  on bail  or pretrial  release for            another  serious offense").   Melo's  counsel objected  to an            obstruction   of  justice   enhancement,  arguing   that  the            misinformation was "harmless" since the probation officer had            discovered  the lie  during  an  allegedly  routine  criminal            records search,  that the prior arrest was  not "material" as            defined in  the Sentencing  Guidelines, and that  counsel had            not  been present to advise  Melo at his  first interview and            Melo had not been told that he could remain silent.                      At  sentencing,  counsel  for  Melo   again  argued            against the  obstruction of  justice enhancement (and  for an            acceptance of responsibility reduction), but did not reassert            his   constitutional   challenge   to   Melo's   uncounselled            presentence  interview.    The  court  enhanced  Melo's  base            offense level for obstruction of justice, and reduced it  for            his acceptance of responsibility,  arriving at a base offense            level  of  22;  he  then increased  Melo's  criminal  history            category  by  one level  because  he had  committed  the drug                                         -3-            offense   while   "under   bail   with  an   arrest   warrant            outstanding," thereby arriving at a criminal history category            of  II.    Using  the  applicable  guidelines  range  in  the            sentencing table,  the court imposed the  maximum sentence of            57 months in prison.                      Melo  asserts   three  grounds  for   vacating  his            sentence.  First,  he claims  that he had  a Sixth  Amendment            right  to  counsel at  the  first  presentence interview  and            should have been advised of his Fifth Amendment rights before            the interview, arguing  that he  would not have  lied to  the            probation  officer  had counsel  been  present.   Second,  he            challenges  the increase  in his  criminal  history category,            saying that  the original  criminal history category  did not            "significantly   underrepresent"   the  seriousness   of  his            criminal history since the  firearms offense was not serious.            Third, he denies that his lie concerning his prior arrest was            material.  We consider each claim in turn.                      1.  The Presentence Interview                          _________________________                      Melo's  first  challenge  fails for  a  very simple            reason.  Melo's counsel  did not present his Fifth  and Sixth            Amendment  challenge  to  the presentence  interview  to  the            district court at sentencing, and thus did not preserve  this            issue for  appeal.  See  United States v.  Ocasio-Rivera, 991                                __________________     _____________            F.2d 1, 2-3 & n.3  (1st Cir. 1993) (declining to  consider an            allegation  that conducting  a presentence  interview without                                         -4-            counsel  violated  the Sixth  Amendment  where  the appellant            failed to make that claim at sentencing, and determining that            the  narrow exception  for  considering issues  not presented            below where circumstances  were unusually compelling  did not            apply).                       2.  Increase in Criminal History Category                           _____________________________________                      We also find  Melo's second argument  unpersuasive.            We  have  previously  sustained  a  decision  to  increase  a            defendant's criminal history category by one level to account            for the defendant's commission of an offense at a time when a            bench warrant for  his arrest was outstanding for  failure to            appear  on a separate charge.   See United  States v. Garcia,                                            __________________    ______            978 F.2d 746, 749 (1st  Cir. 1992).  Melo's arguments  to the            contrary  provide no  basis for  departing from  our previous            holding.                        Melo   says  first  that  increasing  his  criminal            history  category was  unreasonable  because he  would likely            have received a sentence  of one year or less  which, counsel            says,  would  have  resulted  in  the addition  of  only  one            criminal history  point,  leaving him  in  category I.    Our            reading  of the  sentencing guidelines  suggests that  Melo's            factual premise  is wrong.  See Guidelines  Manual   4A1.1(b)                                        ___ __________________            ("Add  2 points for each prior sentence of imprisonment of at            least  sixty days"  which  was not  already  counted under  a            different subsection adding  points for sentences  of greater                                         -5-            than one year and one month);  id. Sentencing Table (equating                                           ___            2 or 3 criminal history points with criminal history category            II).   Moreover, we rejected the very same argument in United                                                                   ______            States v.  Madrid, 946 F.2d 142, 143  (1st Cir. 1991), and we            ______     ______            therefore do so now.                        Melo  also  argues  that  increasing  his  criminal            history  category  was  unreasonable  because  the  New  York            offense  was not serious.   Whatever the  actual facts behind            Melo's  possession of the gun,  there is no  question that he            was  indicted for a felony and that by definition a felony is            a serious crime.  In any event,  it was not the nature of the            firearms  offense   that  persuaded  the  district  court  to            increase Melo's criminal history  category, but the fact that            Melo committed the instant  offense while on pretrial release            after  a bench warrant for his  arrest had issued, presumably            because he had absconded.   Accordingly, this argument fails,            too.   Cf. United States  v. Hernandez, 896  F.2d 642, 644-45                   _________________     _________            (1st  Cir.  1990)  (rejecting  defendant's  attempt  to  show            prejudice because he was prevented from arguing at sentencing            that he was innocent of the prior pending charge since it was            the very existence of a serious pending charge at a time when            the defendant  committed the  offense of conviction,  and not            his  likely guilt or innocence on the prior charge, which led            the court to increase his criminal history category).                                         -6-                      Finally, Melo suggests that  the court erred by not            finding specifically that its departure was warranted because            criminal history category I  "significantly underrepresented"            the  seriousness of  his  criminal history.   The  sentencing            transcript shows that the  sentencing proceeding tracked  the            issues  raised in the presentence report  and that the report            and the probation officer's  recommendations were referred to            throughout.   In  the  report, the  probation officer  quoted            sentencing guideline  4A1.3,  including its  language that  a            departure  under  that  guideline  was  "warranted  when  the            criminal history category significantly  under-represents the            seriousness  of  the  defendant's  criminal  history  or  the            likelihood that  the defendant  will commit  further crimes."            The probation officer explained  that the guideline indicated            that a departure might be warranted for a defendant like Melo            who  commits an offense while on bail or pretrial release for            another  serious offense,  concluding  that the  court  could            consider a departure upward.   Melo's commission of the  drug            crime  while on bail for the New  York offense was the reason            the district  court gave for raising  Melo's criminal history            category  by one  level.   Consequently,  we  think that  any            required  finding  under guideline  4A1.3  as  to significant            underrepresentation   or   likelihood  of   further  criminal            activity  was  implied  in  the  court's  stated  reason  for            departing  upward, and so we  see no error  in its sentencing                                         -7-            decision.  See United States v. Calderon, 935 F.2d 9, 12 (1st                       _________________    ________            Cir.  1991)  (sustaining  the  sentencing   court's  implicit            determination  that  appellant's  criminal  history  category            would  be significantly  underrepresented absent  a one-level            increase in criminal history category).                             3.  Enhancement for Obstruction of Justice                               ______________________________________                      Finally, Melo  argues that his false  statements to            the probation officer were not "materially false"  and so did            not  warrant  an  obstruction  of justice  enhancement.    We            recently  sustained an  obstruction  of  justice  enhancement            under  practically identical circumstances, and so we sustain            the  enhancement here.  See United States v. Pineda, 981 F.2d                                    _________________    ______            569, 575 (1st Cir.  1992) (holding that a defendant,  who had            been  arrested under a different name on a firearms charge in            New  York, and who had  an outstanding bench  warrant for his            arrest  for  failure to  appear on  that  charge, had  made a            materially false  statement under section 3C1.1  when he told            the probation  officer preparing a presentence  report on the            offense  of   conviction  that  he  had   never  before  been            arrested).                       The sentence of the district court is affirmed.                                                                ________                                         -8-
