U.S. v. Harrison, 94-2056

• Decision Date: 13 December 1994
• Docket Number: No. 94-2056,94-2056
• Citation: 42 F.3d 427
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey W. HARRISON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 427

42 F.3d 427

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey W. HARRISON, Defendant-Appellant.

No. 94-2056.

United States Court of Appeals Seventh Circuit.

Argued Oct. 12, 1994.

Decided Dec. 13, 1994.

Francis D. Schmitz, Asst. U.S. Atty., Milwaukee, WI (argued), for plaintiff-appellee.

Jeffrey W. Jensen, Milwaukee, WI (argued), for defendant-appellant.

Before CUMMINGS, MANION and KANNE, Circuit Judges.

MANION, Circuit Judge.

Jeffrey Harrison was charged with two counts of theft of food stamps from a United States post office, 18 U.S.C. Sec. 1708, and one count of impeding a United States postal inspector. 18 U.S.C. Sec. 111. He pleaded guilty to one count of theft, and the remaining charges were dropped. The district court imposed a term of 33 months' imprisonment. On appeal, Harrison challenges only his sentence, arguing that his base offense level should not have been increased pursuant to the obstruction of justice and "more than minimal planning" provisions of the Sentencing Guidelines. We affirm.

I.

In December 1993, U.S. postal inspectors were informed of missing food stamps at the Harbor Station post office in Milwaukee, Wisconsin. On January 31, 1994, through electronic surveillance, postal inspectors observed Harrison, a contract custodian, as he entered the post office and walked directly to a cart where food stamp letters are placed for redelivery. Harrison removed several letters from the cart, including an envelope containing food stamps that had been placed there by the postal inspectors.

On February 5, 1994, Harrison entered the post office at 5:45 a.m., hung his coat in the custodial closet and walked to a desk near the cart. He removed mail from the desk and then walked into the supervisor's office with the mail and empty trash bags. While he was in the office, postal inspectors heard what sounded like paper being torn. Harrison also made a phone call at 6:10 a.m. and was overheard saying, "Greg, I'll be there in about 30 minutes." When Harrison exited the office, he did not have the mail in his hands. He then removed a bundle of letters from the cart, placed them in a trash can he was carrying, and entered the custodial closet. He walked out of the closet approximately three minutes later without the letters and headed towards the lobby. He left the building at approximately 6:50 a.m. A postal inspector recovered twenty food stamp envelopes and address inserts from the post office trash. Food stamps were missing from all the envelopes except one.

Following his arrest on February 7, 1994, Harrison appeared before Magistrate Judge Robert L. Bittner. Magistrate Judge Bittner told Harrison that he had the right to remain silent in these proceedings and that anything he said could be held against him. He was also informed of his right to an attorney. Harrison stated that he understood his rights and asked that an attorney be appointed to represent him. The prosecutors informed the judge that they believed Harrison was presently on parole for an offense committed in Pennsylvania and that they were waiting for verification. Harrison interrupted and asked if he could speak. He then stated that he was "not on any parole." The Philadelphia Parole Office subsequently provided information indicating that at the time Harrison committed the instant offense, he was in fact under parole supervision for theft and firearm charges, perjury, and retail theft. The parole term for the theft and firearm charges was due to expire on May 19, 1994. The magistrate judge temporarily detained Harrison for ten days or until the State of Pennsylvania filed a detainer against him pursuant to 18 U.S.C. Sec. 3142(d). Following a detention hearing, Harrison was detained pending trial because "no condition or combination of conditions exist which would allow this defendant to be released." 18 U.S.C. Sec. 3142(e).

At sentencing, Harrison testified that he did not intentionally mislead Magistrate Judge Bittner about his parole status because he believed that he was entitled to four months good time credit which would move up his parole expiration date to January 19, 1994. Harrison admitted, however, that he left Pennsylvania without notifying his parole officer and that he was aware that a parole revocation hearing was to be scheduled.

The district court determined that Harrison's false statements to the magistrate judge regarding his parole status constituted obstruction of justice, warranting a two-level increase in his base offense level pursuant to U.S.S.G. Sec. 3C1.1. The court concluded that there was no legitimate basis for Harrison's belief that he was no longer under parole supervision and that there was a "[v]ery strong inference" that Harrison denied he was on parole to influence the magistrate judge in viewing more favorably his request for pretrial release. The district court also found that Harrison qualified for a two-level increase under U.S.S.G. Sec. 2B1.1(b)(5), the "more than minimal planning" provision, for the following reasons:

I also believe that more than minimal planning was involved in this incident, the fact that the two thefts were, two incidents of thefts were separated by one week. The clandestine activity of the defendant in removing the food stamps, it shows--and it doesn't take much to be more than minimal planning.... More than minimal planning is very minimal, small degree of planning activity. And without any problem I conclude that he was involved in more than minimal planning. This was not a simply [sic] a snatching of whatever happened to be there. He picked out clearly the envelopes that had food stamps or that he thought would have food stamps.

(Sentencing Tr. 25). ¹

II.

Whether a defendant obstructed justice or engaged in "more than minimal planning" are questions of fact we review for clear error. United States v. McGill, 32 F.3d 1138, 1143 (7th Cir.1994); United States v. Abdelkoui, 19 F.3d 1178, 1183 (7th Cir.1994). Although we review the district court's interpretation of the Sentencing Guidelines de novo, United States v. Haynes, 969 F.2d 569, 571 (7th Cir.1992), we give due deference to its application of the Guidelines to the facts. United States v. Kirkland, 28 F.3d 49, 50 (7th Cir.1994).

A. Obstruction of Justice

The Sentencing Guidelines provide for a two-level increase of the base offense level if the defendant willfully obstructs or impedes the administration of justice during the investigation, prosecution, or sentencing of the offense. U.S.S.G. Sec. 3C1.1. The commentary specifically states that the enhancement applies where the defendant provides "materially false information to a judge or magistrate." Id. at comment. (n. 3(f)). "Material information" means information that, if believed, would tend to influence or affect the issue under determination. Id. at comment. (n. 5.).

Harrison contends that his allegedly false statement was not material to the magistrate judge's decision to detain him because the State of Pennsylvania did not lodge a detainer against him for his parole violations. Yet, Harrison's parole status at the time he committed the instant offense is relevant notwithstanding Pennsylvania's failure to issue a detainer. ² The purpose of the defendant's initial appearance before the magistrate judge is to determine whether the person charged with the offense, if released, will appear in court as required and that he will not endanger the safety of any other person or the community. 18 U.S.C. Sec. 3142. Subsection (g)(3)(B) of the statute authorizes the magistrate judge to consider whether the person was on parole at the time of his arrest; indeed, the imposition of conditional release, a higher bond, or detention may be justified to ensure the parolee's appearance in court. Accordingly, Harrison's statement that he was not on parole at the time of this offense, if believed, would most likely affect the magistrate judge's determination. United States v. Delgado, 936 F.2d 303, 306 (7th Cir.1991) ("It is difficult to conceive of a more material falsehood than a defendant lying ... concerning the extent of his criminal record ... particularly ... when the defendant fails to appear for a violation of probation hearing, was subject to an outstanding arrest warrant for the failure and, thus, was an absconder from probation"), cert. denied, --- U.S. ----, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992). Whether the magistrate judge ultimately relied on Harrison's parole status in ordering his detention is not relevant to the application of the enhancement. United States v. Thomas, 11 F.3d 1392, 1400-01 (7th Cir.1993) (affirming obstruction enhancement where defendant provided false information in presentence investigation about prior arrest record even though district court did not rely upon prior arrest in imposing sentence); United States v. Gaddy 909 F.2d 196, 199 (7th Cir.1990) (because Sec. 3C1.1 applies to attempts to obstruct justice as well as actual obstruction, court rejects defendant's claim that lie had no impact on investigation).

Harrison also urges us to vacate his sentence because he was not under oath when he made the false statement to Magistrate Judge Bittner. This argument has no textual basis in Sec. 3C1.1. The commentary provides examples of the types of conduct that warrant application of the obstruction enhancement and included in this list is providing "materially false information to a judge or magistrate." U.S.S.G. Sec. 3C1.1 comment. (n. 3(f)). In addition, the provision authorizes judges to punish other acts of deceit not committed under oath such as giving materially false information to law enforcement or probation officers. Unquestionably, the guideline is less concerned with whether the false information was given under oath than with the information's effect on a judicial decision or investigation.

Next, Harrison argues that he should not be held accountable for his false statement because he remained...