
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1386                                    UNITED STATES,                                      Appellee,                                          v.                                     JACK BIYAGA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                                Boudin, Circuit Judge,                                        _____________                         and Pollak,* Senior District Judge.                                      _____________________                                 ____________________            James S. Dilday, by Appointment of  the Court, with whom  Grayer &            _______________                                           ________        Dilday was on brief for appellant.        ______            Timothy Q. Feeley, Assistant United States Attorney,  with whom A.            _________________                                               __        John Pappalardo, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                  November 17, 1993                                 ____________________        ____________________        *Of the Eastern District of Pennsylvania, sitting by designation.             POLLAK,  District Judge.   Jack  Biyaga  pled guilty  in the             _______________________             United   States   District  Court   for   the  District   of             Massachusetts to one count of bank robbery brought under  18             U.S.C.   2113(a).  On February 24, 1993, he was sentenced to             41  months of incarceration to be  followed by a conditional             period  of  supervised   release.    Before  sentencing,   a             probation   officer   interviewed   Biyaga  to   prepare   a             presentence report.   Biyaga told  the officer that  (1) his             name  was Jacques  Bonato Biyaga,  (2)  he was  born in  St.             Thomas,  U.S. Virgin  Islands, and  (3)  he was  an American             citizen.   He had previously  averred the same facts  to the             magistrate judge during his bail hearing.  Unable to  verify             Biyaga's  information,  the   probation  officer  confronted             defendant in the presence of counsel.  Biyaga  then admitted             that  (1) his real name  was Jacques Bonaventure Biyaga, (2)             he was born in Mbanga,  Cameroun, and (3) he was  an illegal             alien.     Because   of  Biyaga's   false   statements,  the             presentence  report enhanced his offense level by two points             for obstruction of justice pursuant to U.S.S.G.   3C1.1.1                                              ____________________             1U.S.S.G.    3C1.1 (1992)  directs the  sentencing judge  to             increase  the  Guidelines  offense level  by  two  "[i]f the             defendant willfully  impeded or obstructed,  or attempted to             impede or obstruct, the administration of justice during the             investigation,  prosecution, or  sentencing  of the  instant             offense."                                         -2-                                          2             At  his sentencing hearing, Biyaga objected to the two-point             enhancement.   The district court acknowledged that Biyaga's             falsity was not relevant to the elements of the bank robbery             offense with  which Biyaga  was charged,  but held  that the             enhancement  was  warranted "because  the  misrepresentation             that the defendant is an American citizen born in the Virgin             Islands  is  material  to the  sentencing  decision  in this             case."   On appeal  Biyaga argues  that  the district  court             erred  in imposing  the two-point increase  because Biyaga's             misrepresentation  did not relate  to the count  on which he             was charged, and therefore was not material under U.S.S.G.               3C1.1.   On  review, we  conclude that  the judgment  of the             district court should be affirmed.                                     Discussion                                       __________                       As a threshold matter, we find that under U.S.S.G               3C1.1 false information need not relate to the underlying             charge to be material.  As amended in 1992,   3C1.1 states             that a judge shall increase the offense level by two "if the             defendant willfully obstructed or impeded, or attempted to             obstruct or impede, the administration of justice during the             investigation, prosecution, or sentencing of the instant                                         _____________             offense."  (Emphasis added.)  The guideline thus clearly                                         -3-                                          3             allows sentencing judges to enhance penalties for material             falsehoods relevant to sentencing.                       We further find that sentencing judges have broad             discretion in deciding whether a falsehood is material.              Materiality is a determination by the sentencing judge that             we review only for clear error.  United States v. Pineda,                                              _______________________             981 F.2d 569, 572 (1st Cir. 1992) (clear error standard             applies whether district court's finding based on factual             determination or application of sentencing guidelines).  In             this case the question of materiality is framed by             application note 3 of U.S.S.G. 3C1.1, which provides a non-             exhaustive list of examples of the types of conduct to which             the obstruction of justice enhancement applies.  Example             3(h) is "providing materially false information to a             probation officer in respect to a presentence or other             investigation for the court".  We have held that "the test             of materiality for purposes of Application Note 3(h) is not             a stringent one."  United States v. St. Cyr, 977 F.2d 698,                                ________________________             705 (1st Cir. 1992).  Appellant therefore bears a heavy             burden in trying to show that the district judge erred in             applying   3C1.1.                       Biyaga tries to meet this burden by citing two             cases in which courts of appeal have found                                         -4-                                          4             misrepresentations not to be material under the guidelines:             United States v. Tabares, 951 F.2d 405, 411 (1st Cir. 1991)             ________________________             (fake social security number not material), and United                                                             ______             States v. Belletiere, 971 F.2d 961, 968 (3rd Cir. 1992)             ____________________             (lying about prior drug use not material).  Yet each of             those cases made clear that materiality is a case-by-case             issue, and that identical falsehoods could be material             elsewhere.  Belletiere, 971 F.2d at 968 ("misstatement was                         __________             not material to the probation officer's investigation in                                                                   __             this particular case) (emphasis added); Tabares, 951 F.2d at             ____________________                    _______             411 ("however material [the false statement] might have been             in some other case, it does not seem 'material' in this             one").  Thus, the question to be addressed is whether, in             the case at bar, the defendant's statements could have             interfered with the district judge's proper carrying out of             the sentencing function had the falsity of those statements             not been discovered.                       The district judge explained that in this case the             false statements were material because it was his practice             when sentencing an illegal alien to suspend supervised             release from the time the defendant is deported until, and             if, he returns to the United States.  The judge explained             that when a defendant is deported there is (1) no way for                                         -5-                                          5             the defendant to comply with his release requirements, and             (2) no way for the supervisor to supervise.                         On appeal Biyaga contends that the court can have             no reasonable concern about supervising someone not on             American soil, so a falsehood affecting whether a period of             supervised release is suspended cannot be considered             material.  Biyaga's argument falls short.  The judge stated             a connection between citizenship and the discretionary             sentencing decision of whether to suspend supervised             release.  By definition, then, Biyaga's falsehood involved             information material to sentencing.  Biyaga is also             incorrect that the district judge's sentencing practice is             irrational.  The judge's explanation indicates a reasonable             concern that, in the event a defendant returns to the United             States after deportation, he then be subject to the full             period of supervised release.  It was clearly within the             district court's discretion to find appellant's             misrepresentation as to citizenship to be material in this             case.2                                                ____________________             2We  note that Biyaga's sentence is supportable elsewhere in             the record.   Biyaga lied about his citizenship  not only to             the  probation officer,  but also  to  the magistrate  judge             during his bail hearing.   Application note 3(f) to U.S.S.G.                3C1.1 suggests  the two-point  enhancement for  providing             materially  false information to a judge  or magistrate.  As             citizenship  is  material  to the  issue  of  bail, Biyaga's                                         -6-                                          6                       For the foregoing reasons, the judgment of the             district court is affirmed.                               ________                                              ____________________             misrepresentation   to  the   magistrate   judge  fits   the             definition  of obstruction of  justice under  section 3C1.1.             Although  the district  judge never  reached  this issue  in             overruling  Biyaga's objection  to  the enhancement,  we may             affirm  on any  grounds supported  by the  record.   U.S. v.                                                                  _______             Arias-Santana, 964 F.2d 1262, 1264 (1st Cir. 1992);  U.S. v.             _____________                                        _______             Mendoza-Acevedo, 950 F.2d 1, 3 (1st Cir. 1991).               _______________                                         -7-                                          7
