U.S. v. Echevarria, 1311

• Decision Date: 26 August 1994
• Docket Number: D,No. 1311,1311
• Citation: 33 F.3d 175
• Parties: UNITED STATES of America, Appellee, v. Salvador ECHEVARRIA, Defendant-Appellant. ocket 93-1729.
• Court: U.S. Court of Appeals — Second Circuit

Page 175

33 F.3d 175

UNITED STATES of America, Appellee, v. Salvador ECHEVARRIA, Defendant-Appellant.

No. 1311, Docket 93-1729.

United States Court of Appeals Second Circuit.

Argued April 22, 1994.

Decided Aug. 26, 1994.

H. Elliot Wales, New York City, for defendant-appellant.

John P. Coffey, Asst. U.S. Atty. S.D.N.Y. (Mary Jo White, U.S. Atty., John W. Auchincloss II, Asst. U.S. Atty. S.D.N.Y., of counsel), for appellee.

Before: OAKES, KEARSE, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Defendant-appellant Salvador Echevarria appeals from a judgment of conviction entered October 19, 1993 in the United States District Court for the Southern District of New York, Leonard B. Sand, Judge, following Echevarria's guilty plea to: (1) making false statements in an application for Social Security disability benefits ("Benefits") in violation of 18 U.S.C. Secs. 1001 and 2 (count one); (2) mail fraud in violation of 18 U.S.C. Secs. 1341 and 2 (count six); (3) using a false registration number in the course of distributing and dispensing a controlled substance in violation of 21 U.S.C. Sec. 843(a)(2) and (c) (count eleven); and (4) failing to disclose material events affecting his continued right to receive Benefits in violation of 42 U.S.C. Sec. 408(a)(4) and 18 U.S.C. Sec. 2 (count thirteen). The remaining counts of the indictment were dismissed on motion of the United States.

The court sentenced Echevarria to seventy months imprisonment (comprised of thirty-five month sentences on each count, the sentences on counts one and six to run concurrently, and the sentences on counts eleven and thirteen to run concurrently with each other but consecutively to the sentences on counts one and six), ¹ three years supervised release, restitution of $296,364, and $200 in mandatory special assessments. On appeal, Echevarria contests several of the sentencing enhancements used in computing this sentence, as well as the disallowance of a downward adjustment for acceptance of responsibility. We set aside the enhancement for exploitation of a position of trust, affirm the remaining enhancements and the disallowance of the downward adjustment, and remand for resentencing.

Background

Echevarria fraudulently held himself out as a physician for several years. On August 5, 1992, a grand jury indicted Echevarria on multiple counts of fraud, alleging that Echevarria had misrepresented himself as a doctor by, inter alia, advertising in telephone directories as a physician, displaying false academic credentials, and setting up a medical office. Counts one through five charged Echevarria with falsely describing himself as a "psychiatrist" or "neurologist" in submitting medical evidence in support of "patients' " applications for Benefits in violation of 18 U.S.C. Secs. 1001 and 2. Counts six through ten alleged that he committed mail fraud by causing health insurance providers to mail reimbursement payments to him in violation of 18 U.S.C. Secs. 1341 and 2. Counts eleven and twelve charged him with unlawfully using a false registration number in the course of distributing and dispensing Tylenol 3 with codeine, a controlled substance, in violation of 21 U.S.C. Sec. 843(a)(2) and (c). Count thirteen alleged that he knowingly concealed and failed to disclose his engagement in substantial gainful activity while receiving Benefits in violation of 42 U.S.C. Sec. 408(a)(4) and 18 U.S.C. Sec. 2.

On March 15, 1993, Echevarria pled guilty to counts one, six, eleven, and thirteen. The ensuing presentence report ("PR") calculated Echevarria's base offense level at six for fraud pursuant to USSG Sec. 2F1.1(a). The PR recommended increases of: (1) eight levels for losses exceeding $200,000 pursuant to id. Sec. 2F1.1(b)(1)(I); (2) two levels for more than minimal planning or scheming to defraud more than one victim pursuant to id. Sec. 2F1.1(b)(2)(A) and (B); (3) two levels for misrepresenting that he was acting on behalf of a government agency pursuant to id. Sec. 2F1.1(b)(3)(A); (4) two levels for conscious or reckless risk of serious bodily injury pursuant to id. Sec. 2F1.1(b)(4); (5) two levels for exploitation of a position of trust pursuant to id. Sec. 3B1.3; and (6) two levels for obstruction of justice pursuant to id. Sec. 3C1.1. The resulting adjusted offense level was twenty-four. The PR also alluded to a number of factors that might warrant an upward departure, and noted that diminished capacity might be considered a mitigating factor. See infra note 2.

The district court accepted the PR recommendations regarding enhancements, added two levels for the vulnerable nature of Echevarria's victims pursuant to USSG Sec. 3A1.1, and denied Echevarria's application for a downward adjustment for acceptance of responsibility pursuant to id. Sec. 3E1.1. These determinations resulted in an adjusted offense level of twenty-six, and combined with Echevarria's criminal history category of I to produce a sentencing range of sixty-three to seventy-eight months. Echevarria was sentenced to seventy months imprisonment, as well as the other punishments previously recited.

This appeal followed.

Discussion

Echevarria does not contest the eight-level enhancement for financial loss to the government, two-level enhancement for more than minimal planning, and two-level enhancement for risk of serious bodily injury to others. He argues, however, that: (1) statements that he made during his plea allocution falsely claiming that he was a physician did not justify a two-level enhancement for obstruction of justice; (2) he merits a three-level downward adjustment for acceptance of responsibility based upon his guilty plea; and (3) the two-level enhancements for misrepresenting that he was acting on behalf of a government agency, abuse of a position of trust, and vulnerable victims are unwarranted and duplicative. ²

In assessing these claims and reviewing the sentence imposed by the district court, we review the court's legal determinations de novo. See United States v. Deutsch, 987 F.2d 878, 884-85 (2d Cir.1993) (collecting cases). We "accept the findings of fact of the district court unless they are clearly erroneous[,] and ... give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. Sec. 3742(e); see also Deutsch, 987 F.2d at 884-85. "In addition, 'disputed sentencing factors need only be proved by a preponderance of the evidence.' " Deutsch, 987 F.2d at 885 (quoting United States v. Rodriguez-Gonzalez, 899 F.2d 177, 182 (2d Cir.), cert. denied, 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990)).

A. Obstruction of Justice and Acceptance of Responsibility.

Echevarria seeks reversal of the two-level enhancement for obstruction of justice pursuant to USSG Sec. 3C1.1 based upon false claims he made during his plea allocution that he was a physician. He also argues that by pleading guilty in a timely fashion to his underlying fraud, regardless of his "meaningless misstatement" during the plea allocution, he is entitled to a three-level reduction in his sentence for acceptance of responsibility pursuant to USSG Sec. 3E1.1. He contends that impermissible double counting occurred because the district court relied on his statements during the plea allocution both to add two levels under id. Sec. 3C1.1 and deny a three-level reduction under id. Sec. 3E1.1.

To enhance Echevarria's offense level for obstruction of justice, the district court was required to find that he "willfully obstructed or impeded, or attempted to obstruct or impede the administration of justice during the investigation, prosecution, or sentencing of the instant offense." USSG Sec. 3C1.1; see also United States v. Booth, 996 F.2d 1395, 1397 (2d Cir.1993) (per curiam). "In applying this provision in respect to alleged false testimony or statements by the defendant, such testimony or statements should be evaluated in a light most favorable to the defendant." USSG Sec. 3C1.1, comment. (n. 1); see also United States v. Shonubi, 998 F.2d 84, 88 (2d Cir.1993).

During his plea allocution, Echevarria insisted that he was a doctor. When asked about his scheme, Echevarria admitted that he falsely held himself out as a psychiatrist, but then asserted: "I am a doctor." Upon further questioning by the district judge, he again stated: "I am not a psychiatrist, but I am a doctor." Echevarria lied once again when he told the court that he had a medical degree from the University of Puerto Rico.

Echevarria does not deny making these untrue statements, but minimizes their import. He characterizes them as "gratuitous," and claims that both the district court and the government knew that Echevarria was not a physician. This argument is unavailing, because Sec. 3C1.1 expressly applies to attempts to obstruct justice; thus, whether Echevarria's statements were ultimately unconvincing is irrelevant to the applicability of Sec. 3C1.1. See United States v. Irabor, 894 F.2d 554, 556 (2d Cir.1990) (whether obstruction was ultimately successful is irrelevant to application of Sec. 3C1.1); see also United States v. Rodriguez, 943 F.2d 215, 218 (2d Cir.1991) ("an enhancement for obstruction of justice necessarily contemplates that the obstruction must be discovered at some point"); cf. USSG Sec. 3C1.1, comment. (n. 5) (evidence deemed material when "if believed, [it] would tend to influence or affect the issue under determination"). Finally, contrary to a suggestion in Echevarria's reply brief, it seems clear to us that a plea proceeding is part of the "investigation, prosecution, or sentencing" of an offense within the meaning of Sec. 3C1.1. Cf. id., comment. (n. 3(f)) ("providing materially false information to a judge or magistrate" constitutes obstruction of justice).

We also find that the district judge did not err in denying Echevarria credit for acceptance of responsibility. See USSG Sec. 3E1.1, comment. (n. 5) ("The sentencing judge is in a unique position to...