                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-6-1999

United States v Imenec
Precedential or Non-Precedential:

Docket 98-1912




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Recommended Citation
"United States v Imenec" (1999). 1999 Decisions. Paper 277.
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Filed September 30, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-1912

UNITED STATES OF AMERICA

v.

ROBERTO IMENEC a/k/a ALBERTO GIMENEZ

Roberto Imenec, Appellant

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. Action No. 92-cr-00584-1)
District Judge: Honorable Clarence C. Newcomer

Argued June 17, 1999

BEFORE: NYGAARD, COWEN, and STAPLETON,
Circuit Judges

(Opinion Filed September 30, 1999)

       Christopher D. Warren (Argued)
       Saul, Ewing, Remick & Saul
       3800 Centre Square West
       Philadelphia, PA 19102
        Attorney for Appellant

       Shari E. Lewis (Argued)
       Assistant United States Attorney
       U.S. Attorney's Office
       615 Chestnut Street
       Philadelphia, PA 19106
        Attorney for Appellee
OPINION OF THE COURT

STAPLETON, Circuit Judge:

Roberto Imenec was convicted of one count of conspiracy
to distribute cocaine base in violation of 21 U.S.C.S 846.
The United States District Court for the Eastern District of
Pennsylvania sentenced him to 151 months imprisonment,
five years of supervised release, a $2000 fine, and a $50
special assessment. Imenec asserts that the District Court
erred when it imposed a two point upward departure for
obstruction of justice, pursuant to Section 3C1.1 of the
Sentencing Guidelines. We will affirm the sentence of the
district court.

I.

Imenec was arrested after selling crack cocaine to
undercover Philadelphia police officers on four separate
occasions. He was charged with state drug offenses and
released on bail with an order to appear in state court for
a preliminary hearing on November 26, 1991. One day
before the scheduled preliminary hearing, the United States
Attorney's Office for the Eastern District of Pennsylvania
secured a warrant for Imenec's arrest on federal drug
offenses based on the same events. Federal authorities
intended to arrest Imenec when he appeared at the state
court proceeding. Imenec did not appear at his preliminary
hearing, however, and subsequent attempts to locate him
proved fruitless. In October, 1992, a federal grand jury
returned an indictment against Imenec.

A few years later, on May 31, 1995, Imenec was arrested
in New York under the alias, "Jose Estevez," and charged
with conspiracy to distribute cocaine. An automated
fingerprint check revealed Imenec's identity, and
arrangements were made to have him brought to
Pennsylvania to face the charges set forth in the 1992
federal indictment. After challenging his prosecution as
untimely under the Sixth Amendment, Imenec agreed to
cooperate with authorities. He ultimately pled guilty to one

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count of conspiracy to distribute cocaine, acknowledging
that the conspiracy involved 214.8 grams of crack cocaine.

On September 14, 1998, the District Court sentenced
Imenec to 151 months imprisonment, five years of
supervised release, a $2000 fine, and a $50 special
assessment. The District Court concluded that Imenec had
obstructed justice when he failed to appear at the state
court preliminary hearing in 1991, and based on that
finding, imposed a two point upward enhancement,
pursuant to Sentencing Guideline S 3C1.1. The sole issue
raised in this appeal is whether the imposition of the
upward enhancement was based on an erroneous
construction of S 3C1.1.

II.

Because Imenec was sentenced in 1997, we must analyze
his appeal under the Guidelines as they existed at that
time. The relevant version of S 3C1.1 provides that "[i]f 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.
S 3C1.1 (Nov. 1997).1 The Application Notes offer us some
_________________________________________________________________

1. In 1998, Section 3C1.1 was modified; it now provides:

       If (A) the defendant willfully obstructed or impeded, or attempted
to
       obstruct or impede, the administration of justice during the course
       of the investigation, prosecution or sentencing of the instant
offense
       of conviction, and (B) the obstructive conduct related to (i) the
       defendant's offense of conviction and any related conduct; or (ii)
a
       closely related offense, increase the offense level by 2 levels.

U.S.S.G. S 3C1.1 (Nov. 1998). The application notes indicate that the
amendment was intended to address the issue raised in this appeal --
i.e., whether the term "instant offense" applies to obstructions that
occur
in cases closely related to the defendant's case or only to those
obstructions specifically related to the offense for which the defendant
has been convicted. "The amendment, which adopts the majority view,
instructs that the obstruction must relate either to the defendant's
offense of conviction (including any relevant conduct) or to a closely
related case." U.S.S.G. App. C at 583. It, thus, appears that Imenec's
conduct would merit enhancement under the 1998 Guidelines.

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guidance in determining what type of conduct constitutes
obstruction of justice for the purposes of S 3C1.1. Two of
the enumerated examples are of particular significance.
Note Three establishes that "willfully failing to appear, as
ordered, for a judicial proceeding" is an obstruction of
justice under S 3C1.1, and Note Four provides that
"avoiding or fleeing from arrest" does not constitute
obstruction of justice.

The District Court accepted the Government's position
that Imenec's failure to appear at his preliminary hearing in
Pennsylvania state court in 1991 was a willful failure to
appear at a judicial proceeding, justifying the upward
departure pursuant to Application Note Three of S 3C1.1.
Imenec concedes that he failed to appear at a state judicial
proceeding, but he argues that, because it was a state,
rather than a federal, court, his failure to appear was
outside the ambit of S 3C1.1. The only "effect" his action
had upon federal proceedings, he argues, was to avoid or
delay his arrest, an action that Application Note Four of
S 3C1.1 clearly excludes. The District Court was
unpersuaded by Imenec's proposed construction ofS 3C1.1.
We exercise plenary review over the District Court's
interpretation of the Sentencing Guidelines. See United
States v. Powell, 113 F.3d 464, 467 (3d Cir. 1997).

III.

The answer to whether a S 3C1.1 obstruction of justice
enhancement is appropriate in this case depends on
whether "instant offense" is understood to refer to the
criminal conduct underlying the specific offense of
conviction, as the government contends, or is read to be
limited to the specific offense of conviction itself, as Imenec
insists. Based on the text and purpose of S 3C1.1, we
conclude that the Sentencing Commission's intent was to
impose an enhancement for any conduct that obstructs an
investigation, prosecution or sentencing proceeding that is
based on the criminal conduct underlying the specific
statutory offense for which the defendant is being
sentenced.

Section 3C1.1 imposes a sanction for conduct that
obstructs an official criminal investigation, even though the

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investigation has not yet matured into a prosecution and,
indeed, even though no thought has yet been given to what
the appropriate criminal charge might be. As a result, we
believe it unlikely that the Sentencing Commission intended
to require a nexus between the specific statutory offense
and the obstructed investigation beyond a showing that the
conduct being investigated gave rise to the criminal charge
ultimately decided upon.

Moreover, we believe the intent reflected in the text of
S 3C1.1 is the one most consistent with its purpose. As the
Court of Appeals put it in United States v. Emery, 991 F.2d
907 (1st Cir. 1993):

       [T]he obstruction-of-justice enhancement rests on the
       rationale that "a defendant who commits a crime and
       then . . . [makes] an unlawful attempt to avoid
       responsibility is more threatening to society and less
       deserving of leniency than a defendant who does not so
       defy" the criminal justice process.

Id. at 912 (quoting United States v. Dunnigan, 507 U.S. 87,
97 (1993)). As the Emery court went on to point out, the
threat that the defendant poses and his or her culpability
with respect to the offense of conviction are not lessened by
the happenstance that the obstructive conduct occurred at
a time when state, rather than federal, authorities were
conducting the investigation of the conduct underlying the
offense of conviction.

Because we interpret "the instant offense" in the manner
suggested by the government, we conclude that aS 3C1.1
enhancement is appropriate where the defendant has
obstructed an investigation of the criminal conduct
underlying the offense of conviction, even where the
investigation was being conducted by state authorities at
the time. Given that interpretation, we further conclude
and hold that a S 3C1.1 enhancement is appropriate where
the defendant has obstructed a prosecution based on the
same criminal conduct underlying the offense of conviction
even though that prosecution is going forward in a state
court.

Our holding is consistent with and supported by our
existing circuit jurisprudence. In United States v. Powell,

                                5
113 F.3d 464 (3d Cir. 1997), we construed S 3C1.1 as
applying, not only to conduct obstructing the proceedings
against the defendant himself, but also to conduct
obstructing a separate trial of a co-defendant on a charge
based on the same criminal conduct underlying the
defendant's offense of conviction. In Powell, the defendant
had been convicted of conspiracy to distribute cocaine with
his brother. The defendant pled guilty to the conspiracy,
but then, in an effort to impede his brother's prosecution,
he testified falsely at his brother's trial. The District Court
applied S 3C1.1 and imposed a two level enhancement on
Powell. On appeal, Powell argued that S 3C1.1 was
inapposite, because his conduct did not obstruct the
"instant offense." We rejected that argument and held that
S 3C1.1 "applies where a defendant attempts to obstruct
justice in a case closely related to his own . . . ." Id.

While Powell involved two federal prosecutions, its
holding is inconsistent with an understanding that
"prosecution" in S 3C1.1 is limited to the prosecution that
produced the conviction for which the defendant is being
sentenced. It is consistent with the notion thatS 3C1.1
applies to conduct obstructing any investigation,
prosecution or sentencing proceeding based on the same
criminal conduct that underlies the offense for which the
defendant is being sentenced. Indeed, it seems to us that
this case follows a fortiori from Powell, since Imenec, in
obstructing the state prosecution, was attempting, unlike
Powell, to avoid accountability for his own criminal
conduct.

Cases from other Courts of Appeals also provide support
for our holding. See United States v. Smart, 41 F.3d 263,
265-66 (6th Cir. 1994) (per curiam) (argument that failure
to appear at state court proceeding was unrelated to the
"instant" case "is simply not tenable"); United States v.
Adediran, 26 F.3d 61, 65 (8th Cir. 1994) ("this circuit does
not prohibit obstruction enhancement in federal
prosecutions merely because state entities were involved").
In addition, other Circuit Courts of Appeals have
expansively interpreted S 3C1.1 to require enhancement for
conduct obstructing state investigations, even when the
obstructive conduct occurred before federal charges were

                               6
filed or a federal investigation was even initiated. See United
States v. Self, 132 F.3d 1039, 1042 (4th Cir. 1997)
("[s]ection 3C1.1 draws no distinction between a federal
investigation and a state investigation"); United States v.
Emery, 991 F.2d 907, 911-12 (1st Cir. 1993) ("so long as
some official investigation is underway at the time of the
obstructive conduct, the absence of a federal investigation
is not an absolute bar to the imposition of a section 3C1.1
enhancement"); United States v. Lato, 934 F.2d 1080, 1083
(9th Cir. 1991) (obstruction of a state investigation properly
considered for purposes of a 3C1.1 enhancement).

IV.

In conclusion, we hold that S 3C1.1 requires a two level
enhancement when a defendant fails to appear at a judicial
proceeding, state or federal, relating to the conduct
underlying the federal criminal charge. Accordingly, the
judgment of the District Court will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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