
USCA1 Opinion

	




          August 15, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________        No. 94-1213                                    UNITED STATES,                                      Appellee,                                          v.                                    ROBERT PARKER,                                Defendant, Appellant.                                 ____________________                      APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                              Selya and Cyr, Circuit Judges.                                             ______________                                 ____________________            Cerise Lim-Epstein, Mary M.  Diggins and Goodwin,  Procter &  Hoar            __________________  ________________     _________________________        on brief for appellant.            Donald K. Stern, United States Attorney,   and Mark W. Pearlstein,            _______________                                __________________        Assistant U.S. Attorney on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Defendant,  Robert Parker, pled guilty                      __________            to all counts of a twenty-count indictment  charging him with            making and presenting false claims, in violation of 18 U.S.C.              287, and mail fraud, in violation of 18 U.S.C.   1341.  The            district  court sentenced him to 37 months in prison.  Parker            appeals  his sentence  on the sole  ground that  the district            court  erred in  increasing  his base  offense  level by  two            levels  pursuant  to  U.S.S.G.    3C1.1  for  obstruction  of            justice. The  increase placed him in  a sentencing guidelines            range of  33 to 41 months,  instead of the range of  30 to 37            months.  We affirm.                                    I.  Background                                        __________                 In sentencing  Parker, the  district  court adopted  the            recommendation  contained  in  the presentence  investigation            report ("PSR") that  the base offense  level be increased  by            two levels pursuant to   3C1.1, which provides as follows:                 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,                 increase the offense level by 2 levels.            U.S.S.G.   3C1.1.   The commentary to    3C1.1 includes as an            example  of the type of  conduct to which  the obstruction of            justice  enhancement  applies,  "providing  materially  false            information  to   a  probation   officer  in  respect   to  a            presentence or other investigation for the court." U.S.S.G.              3C1.1, comment (n.3).1                                              ____________________            1.  The references herein are to  the guidelines in effect on            January 12, 1994, the date of Parker's sentencing.                  In explaining the  recommended increase for  obstruction            of  justice, the PSR recounted that the probation officer who            prepared that report specifically asked Parker if he had ever            been  arrested  while living  in  Kansas from  1978  to 1986.            Parker replied  that he had  been arrested for  driving under            the  influence and had been placed on probation for one year.            He failed to mention  any other arrests.  A  subsequent local            record check by a federal probation office in Kansas revealed            that Parker had been arrested there in 1984 for two counts of            burglary  and  two counts  of  criminal  damage to  property.            Parker had pled  guilty to felony and misdemeanor  charges of            criminal  damage to  property  and had  received a  suspended            prison sentence of 1 to 3 years. 2                 In his objection  to the PSR, Parker  contended that his            failure  to  inform the  probation  officer  about his  other            Kansas arrests was not willful.  He explained the omission as            follows:                 The  charges to which the Presentence Report refers                 arose  out  of Mr.  Parker's destroying  his wife's                 property in  the home that he  formerly shared with                 his wife.    Although Mr.  Parker  soon  thereafter                 became divorced, at the time of the incident he was                 still married and was  a co-owner of the home.   It                 was and  is Mr.  Parker's memory  and understanding                 that  the whole  matter was handled  informally and                 was  connected  to his  divorce.    At his  divorce                 hearing his wife's attorney  brought up the  matter                 of the  damaged property.   As part of  the divorce                                            ____________________            2.  At the  sentencing hearing,  the defense  attorney stated            that it was  unclear from the record whether  Parker actually            served time for these convictions.                                         -3-                 decree   Mr.   Parker  was   ordered  to   pay  her                 restitution.  Immediately after the divorce hearing                 Mr.  Parker went  to the  courthouse next  door and                 pled guilty  to what he believed  was a misdemeanor                 for  damaging  his  wife's  property.  It  was  his                 understanding that he could  be charged with a more                 serious crime and/or  sentenced to imprisonment  if                 he failed to pay restitution.                      At the interview with the Probation Officer on                 November  15,  1993,  Mr.   Parker  stated  in  the                 presence of  the officer  and his attorney  that he                 had been ordered  to pay his wife restitution.  Mr.                 Parker  did  not  explain  the  background  of  the                 restitution order to the Probation  Officer because                 of his (Mr. Parker's)  understanding that it was an                 informal incident related to his divorce.                 The  probation   officer,  in  his   response  to   this            objection,  noted  that  the  records  received  from  Kansas            contained nothing to indicate  that the defendant's  criminal            charges were  handled informally.   The Kansas  court records            indicated  that  Parker was  represented  by  counsel at  his            guilty plea  hearing and that  the court  questioned him  and            determined  that  his  plea  to the  felony  and  misdemeanor            charges was voluntary and intelligent.  Parker was thereafter            sentenced on those charges.   The probation officer concluded            that "there is nothing in the record that would indicate that            the  defendant's plea was in  any way related  to his divorce            proceedings."                  At  the  sentencing hearing,  Parker conceded  that the            convictions had occurred and  that he did not report  them to            the probation officer.  He argued, however, that  his failure            to  report them  resulted from  a misunderstanding  about the                                         -4-            nature of the offenses,  and was not willful.  Parker argued,            through counsel,  that if he had intended to hide the fact of            the  prior  convictions  he   would  not  have  informed  the            probation  officer of  the restitution order  or that  he had            lived in Kansas,  information that  "directly led .  . .  the            probation officer  to that  conviction."  The  district court            concluded that a two-level  increase to Parker's base offense            level for obstruction of justice was warranted.                                    II. Discussion                                        __________                 We review for clear error a district court's decision to            increase an offense level for obstruction of justice under               3C1.1.  United States v. Aymelek, 926 F.2d 64, 68 (1st Cir.                      _____________    _______            1991).   The government  has  the burden  of proving  willful            obstruction of  justice by  a preponderance of  the evidence.            Id. at 67.   Therefore, our  inquiry here is  limited to  the            ___            following question:                 whether there is sufficient evidence on the  record                 to  support  a reasoned  conclusion  that appellant                 [willfully] obstructed, or  attempted to  obstruct,                 the proceedings.            Id. at 68.            ___                 We  believe   that  the  record   supports  a  "reasoned            conclusion" that Parker "willfully" attempted to obstruct the            sentencing  proceedings by  omitting the  Kansas  arrests and            convictions for  criminal damage to property  when questioned            by the  probation  officer.   Parker  argues on  appeal  that            "there was no evidence presented by the government from which                       __                                         -5-            the  court  could conclude  that Parker  willfully obstructed                                                     _________            justice."  We disagree.                   It  is  uncontested  that  the  arrests  and convictions            occurred  and  that  Parker   failed  to  mention  them  when            specifically questioned about prior  arrests.  He  attributed            this failure  to a misunderstanding  about the nature  of the            previous  offenses.  In this  context, the information in the            PSR  that Parker  was  represented by  counsel when  pleading            guilty to  the unreported  criminal charges, that  the guilty            plea was found to  be voluntary and intelligent and  that the            Kansas records contained nothing to indicate that the omitted            charges  were  handled   informally  (as  Parker  contended),            constitutes evidence of willfulness.    The inclusion of  the            prior  convictions  had  the effect  of  increasing  Parker's            criminal history category. Therefore, Parker had a motive for            omitting them.   This also constitutes some evidence that the            omissions were willful.                 The court  read Parker's written objections  to the PSR,            heard his  counsel's arguments at the  sentencing hearing and            gave  Parker an  opportunity to  speak at  the hearing.   The            court did not believe the explanation Parker gave for failing            to report the arrests and convictions:  that he misunderstood            the nature of the offenses.  See United States  v. Baker, 894                                         ___ _____________     _____            F.2d  1083,  1085  (9th  cir.  1990)  (upholding  finding  of            "willfulness"  where  sentencing court  "afforded [defendant]                                         -6-            ample opportunity to  refute allegations  in the  presentence            report  and  to present  his own  view  of the  facts" before            rejecting  defendant's explanation  that he  believed omitted            convictions weren't part of his criminal history).                 In  United States  v. St.  Cyr, 977  F.2d 698  (1st Cir.                     _____________     ________            1992),  we  reviewed for  clear  error  the district  court's            finding  of "willfulness"  with  respect  to the  defendant's            failure to disclose previous  convictions and guilty pleas in            his interview with a  probation officer.  We upheld  the two-            level increase for obstruction  of justice where the district            court did not find  defendant's explanation for his omissions            (that he had simply forgotten about his previous convictions)            credible.       "In   the   sentencing   phase,   credibility            determinations lie  within the domain of  the district court.            Only rarely -- and  in the most urgent circumstances  -- will            we, from the vista  of a sterile appellate record,  meddle in            such matters." Id. at  706.   We reiterated that  "when there                           ___            are two plausible views of the record, the sentencing court's            adoption of one such view cannot be clearly erroneous." Id.3                                                                    ___                 Similarly,  in this  case  the  district court  rejected            Parker's  explanation  for  failing to  disclose  the  Kansas            arrests and convictions.  Given the evidence that Parker  was                                            ____________________            3.  Parker's argument  that  any conflicts  in  the  evidence            should be resolved in defendant's favor pursuant to    3C1.1,            comment (n.1),  has repeatedly  been rejected by  this court.            See  Aymelek, 926 F.2d at 68.             ___  _______                                         -7-            represented by  counsel when  pleading guilty to  the omitted            offenses,  that his guilty plea was knowing and voluntary and            that Kansas court records gave no indication that the charges            were handled informally, it was not clearly erroneous for the            district  court   to  reject  Parker's  explanation  that  he            misunderstood  the  nature of  the  offenses.   The  district            court's finding was based  on a plausible view of  the record            and  cannot be rejected as  clearly erroneous. See   St. Cyr,                                                           ___   _______            977 F.2d  at 706.   See also United  States v. Tello,  9 F.3d                                ___ ____ ______________    _____            1119  (5th  Cir.  1993)  (affirming  two-level  increase  for            obstruction of  justice where district court  did not clearly            err in rejecting defendant's  explanation for failure to tell            probation officer about prior arrests and convictions).                 Parker argues that this case is similar to United States                                                            _____________            v. Tabares, 951 F.2d 405 (1st Cir. 1991). There, we noted the               _______            absence  of evidence of willfulness.  We held that the giving            of  a  false  social  security  number  was  not  "material,"            reasoning that the number, which defendant had been using for            some   time,  likely   helped   investigators   looking   for            defendant's  prior work history.   See id.  at 411.   In this                                               ___ ___            case, however, Parker concedes in his brief that the omission            was  "material."    Moreover,  Parker's   argument  that  the            incomplete  information disclosed  by him  --that restitution            was  ordered in his Kansas divorce  proceedings -- would have            led to the  discovery of the omitted convictions for criminal                                         -8-            damage  to property, is of no  avail.  The failure to provide            complete information of his previous arrests  and convictions            certainly  delayed the  preparation  of an  accurate PSR  and            could  have resulted in an inaccurate sentencing computation.            See United States v. Baker, 894 F.2d at 1084.              ___ _____________    _____                 Finally,  Parker accuses  the district  court of  having            made up its mind  on the obstruction of justice  issue before            hearing from  the  parties at  the sentencing  hearing.   The            record   completely  belies  that   contention.    While  the            sentencing judge stated that,  based upon his reading  of the            PSR,  he was  persuaded that  an  obstruction of  justice had            occurred, that  was merely a  statement of his  thinking thus            far  in the  process.  He  went on to  carefully consider the            parties' arguments  at the  hearing.  He  questioned Parker's            attorneys   closely  about   Parker's  explanation   for  his            omissions  and   about  the  records  of   the  Kansas  court            proceedings  before  ruling  that  a  two-level  increase for            obstruction of justice was warranted.                   Accordingly, the  judgment is  summarily affirmed.   See                                                                      ___            Loc. R. 27.1.                                         -9-
