U.S. v. McKay, Docket No. 98-1527

• Decision Date: 23 March 1999
• Docket Number: Docket No. 98-1527
• Citation: 183 F.3d 89
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. WAYNE MICHAEL McKAY, Defendant-Appellant, and CHARMAINE MARIE DILLON, Defendant. August Term 1998 Argued by Appellant, Submitted by Appellee:
• Court: U.S. Court of Appeals — Second Circuit

Page 89

183 F.3d 89 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. WAYNE MICHAEL McKAY, Defendant-Appellant and CHARMAINE MARIE DILLON, Defendant.

Docket No. 98-1527

August Term 1998

UNITED STATES COURT OF APPEALS SECOND CIRCUIT

Argued by Appellant, Submitted by Appellee: March 23, 1999 Decided: July 7, 1999

Appeal from sentence of 46 months imprisonment imposed by the United States District Court for the Western District of New York, Richard J. Arcara, J., after defendant's plea of guilty. Held, district court did not err by finding that defendant's false statements to probation officer warranted upward departure for obstruction of justice pursuant to U.S.S.G. § 3C1.1.

Affirmed.

THOMAS J. EOANNOU, Buffalo, New York, for Defendant-Appellant.

GEORGE C. BURGASSER, Buffalo, NY, Assistant United States Attorney for the Western District of New York (Denise E. O'Donnell, United States Attorney for the Western District of New York, of Counsel), Jamin Alabiso, Student Intern, on the brief, for Appellee.

Before: FEINBERG, PARKER and SACK, Circuit Judges.

FEINBERG, Circuit Judge:

Defendant Wayne Michael McKay appeals from a sentence of 46 months imprisonment imposed by the United States District Court for the Western District of New York, Richard J. Arcara, J., after his plea of guilty to conspiracy to commit money laundering with intent to promote the distribution of marijuana. The district court applied a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1 because of false statements McKay made to a United States Probation Officer concerning his role in the underlying marijuana distribution activities. On appeal, McKay argues that his statements did not constitute obstruction of justice for purposes of § 3C1.1 and seeks a remand for resentencing. For the reasons stated below, we affirm the judgment of the district court.

I. Background

After several months of investigation into suspected narcotics trafficking and money laundering activities in the Niagara Falls area, McKay was arrested by agents of the United States Customs Service in September 1996. The government filed an indictment charging him with three violations of narcotics laws involving the possession and distribution of marijuana. At his original debriefing, McKay stated that he was merely a middle man in a marijuana distribution organization led by Lodgerica Barnswell. He made the same claim in his testimony to a grand jury in December 1996.

In February 1997, McKay pleaded guilty to a one-count superseding information charging him with conspiracy to commit money laundering with intent to promote the distribution of marijuana, in violation of 18 U.S.C. § 1956(a)(2)(A) and 18 U.S.C. § 1956(h). During his presentence interview 12 days later, McKay again stated -- this time to United States Probation Officer David W. Ball -- that Barnswell was the leader of the organization and that his own role was limited. He repeated his claim that he was a middle man working for and at the direction of other individuals. According to McKay, those individuals had rented an apartment in Niagara Falls and paid him between $800 and $1500 per shipment to receive packages of marijuana there. As for money laundering, McKay stated that he was directed by other individuals to transfer funds between western New York and various other locations, and that the transfers facilitated the drug distribution.

On the basis of this information, the presentence report (PSR) recommended that McKay be assigned a total offense level of 19. Included in this computation was a two-level reduction under U.S.S.G. § 3B1.2 for McKay's minor role in the money laundering, a three-level reduction under U.S.S.G. §§ 3E1.1(a) and (b) for his acceptance of responsibility, and a two-level reduction under U.S.S.G. § 5K2.0 in exchange for his stipulation to an order of deportation which would be carried out at the end of his incarceration.¹ With his criminal history category of I, this offense level would result in a guideline imprisonment range of 30 to 37 months.

Meanwhile, McKay's grand jury testimony had assisted the government in obtaining a one-count indictment in August 1997 charging Barnswell with a narcotics offense. The investigation following Barnswell's arrest revealed that, contrary to McKay's repeated prior assertions, McKay was in fact the leader of the marijuana distribution scheme. In light of this new information, Ball re-interviewed McKay in November 1997. McKay admitted that he had misled Ball during his February 1997 presentence interview. He claimed that he had acted on the advice of his prior attorney, who had advised him to minimize his role; McKay stated that he was now "coming clean." He then related a version of events quite different from the one he had previously told to Ball. McKay stated that he would have co-defendant Charmaine Dillon forward marijuana to him, which he would then sell in Niagara Falls. McKay would also provide marijuana to Barnswell, who would pay him after it was sold. McKay added that he would often receive marijuana on consignment and, upon selling it, would send funds to California. He claimed that he earned approximately $25 to $50 profit per pound of marijuana sold. Finally, he acknowledged that he was the one who obtained the apartment in Niagara Falls where marijuana shipments were received, and that he used a fictitious name to do so.

Ball prepared a revised PSR in February 1998 recommending that McKay be assigned an adjusted offense level of 26. Included in this computation was a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1 based on the "materially false information" McKay provided to the Probation Office during his initial presentence interview. The reductions for a minor role under U.S.S.G. § 3B1.2 and for acceptance of responsibility under U.S.S.G. §§ 3E1.1(a) and (b) were no longer recommended. With McKay's criminal history, the new total offense level of 26 would result in a guideline imprisonment range of 63 to 78 months.

Thereafter, in a meeting with the United States Attorney's Office and the Probation Office, McKay objected to the suggested enhancement for obstruction of justice and the elimination of a reduction for acceptance of responsibility. In a July 1998 addendum to the revised PSR, Ball stated that "based upon defense counsel's arguments and supportive case law . . . the obstruction of justice enhancement may not apply." Ball remained convinced, however, that McKay was not entitled to a reduction for acceptance of responsibility for the money laundering charge because he had lied about his role in the marijuana distribution. No longer advocating a § 3C1.1 enhancement for obstruction of justice, the addendum recommended a total offense level of 24 which, with McKay's criminal history, would result in a guideline imprisonment range of 51 to 63 months. The recommendations of the revised PSR were otherwise unchanged by the addendum.

Judge Arcara held sentencing hearings in July and August 1998. There were no objections to the facts contained in the revised PSR, which the district court adopted as its findings of fact. The court heard extensive argument on whether McKay's false statements to the Probation Office warranted application of the § 3C1.1 enhancement. The judge noted that while McKay's lies concerned drug distribution rather than money laundering, McKay began lying when he was still under indictment for the former. The judge further noted that the superseding information charging McKay with money laundering also referred to the distribution of marijuana. The judge accordingly felt that the offenses were closely intertwined. At the close of the August hearing, the judge found that because McKay's misstatements were willful, material and made during the sentencing phase of the offense, the two-level enhancement for obstruction of justice was warranted. This brought McKay to an offense level of 23 and a guideline imprisonment range of 46 to 57 months. The judge then sentenced McKay to 46 months imprisonment, which he is currently serving. The court further ordered that upon his release he be deported to Jamaica pursuant to 18 U.S.C. § 3583(d).

On appeal, McKay argues only that the district court's application of the obstruction of justice enhancement under U.S.S.G. § 3C1.1 was error. He seeks a remand for resentencing.

II. Discussion

A. Applicable Guideline and Standard of Review

When McKay was sentenced in August 1998, section 3C1.1 of the Sentencing Guidelines stated 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.

As an example of conduct falling within this provision, Application Note 3(h) to § 3C1.1 specifically listed "providing materially false information to a probation officer in respect to a presentence or other investigation for the court." Application Note 5 defined "material" information as information that, "if believed, would tend to influence or affect the issue under determination." On appeal, "[t]he sentencing court's findings as to what acts were performed, what was said, what the speaker meant by [his] words, and how a listener would reasonably interpret those words will be upheld unless they are clearly erroneous." United States v. Cassiliano, 137 F.3d 742, 745 (2d Cir. 1998) (citing United States v. Shoulberg, 895 F.2d 882, 884 (2d Cir. 1990); United States v. Stroud, 893 F.2d 504, 506-07 (2d Cir. 1990)). A ruling that established facts constitute obstruction of justice under the Sentencing Guidelines is a matter of legal interpretation and is reviewed de novo. See Stroud, 893 F.2d at 507.

B. Obstruction of Justice with Respect to the "Instant Offense"

The "instant offense" in this case is the offense to which McKay pleaded guilty -- money...