U.S. v. Acuna

• Decision Date: 24 November 1993
• Docket Number: No. 92-30289,92-30289
• Citation: 9 F.3d 1442
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter Charles ACUNA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1442

9 F.3d 1442

UNITED STATES of America, Plaintiff-Appellee, v. Peter Charles ACUNA, Defendant-Appellant.

No. 92-30289.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 1, 1993.

Decided Nov. 24, 1993.

Gar Hackney, Lynn, Scott, Hackney, Jackson & Sullivan, Boise, ID, for defendant-appellant.

Monte Stiles, Asst. U.S. Atty., Boise, ID, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before: WALLACE, Chief Judge, BOOCHEVER and NOONAN, Circuit Judges.

WALLACE, Chief Judge:

Acuna appeals from his sentence imposed under the United States Sentencing Guidelines (Guidelines) for various narcotics and weapons offenses. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

I

On April 19, 1991, Acuna, a California resident, telephoned Geo-Data Chemicals (Geo-Data), located in Boise, Idaho, and inquired about the purchase of hydriodic acid, a methamphetamine precursor. The next day, Acuna and his wife met with a representative of Geo-Data and discussed the purchase of hydriodic acid, ephedrine, thionyl chloride, and glassware. Acuna also stated that he could provide freshly cooked methamphetamine for $10,000 per pound. That evening, Acuna purchased 10 gallons of hydriodic acid from the Geo-Data representative. Acuna was unaware that the Geo-Data representative was an undercover narcotics agent and Geo-Data was a covert operation run by the Idaho Bureau of Narcotics.

Between May 6 and May 11, 1991, Acuna made frequent calls to Geo-Data. He negotiated for the purchase of ephedrine, hydriodic acid, methylamine, thionyl chloride, phenylacetic acid, and red phosphorous, all of which are chemicals used in manufacturing methamphetamine. On May 11, Acuna met with the undercover agent at a truck stop in Boise, and purchased the chemicals in exchange for $5,500 and three pounds of marijuana. He also stated that in a future transaction he would sell the agent two and a half pounds of methamphetamine for $25,000.

Acuna was arrested at the scene, after taking possession of the chemicals. At the time of the arrest, Acuna had a semi-automatic pistol tucked into the waistband of his pants. Later that evening three coconspirators were arrested at a nearby motel. Another coconspirator was subsequently arrested in Mountain Home, Idaho.

Just prior to trial, Acuna negotiated a plea agreement with the government, in which he was to plead guilty to one count of conspiracy to possess listed chemicals with intent to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(d)(2), five counts of possession of listed chemicals in violation of 21 U.S.C. § 841(d)(2), one count of distribution of marijuana in violation of 21 U.S.C. § 841(a)(1), one count of using a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). As part of the plea agreement, Acuna agreed to be interviewed by government agents and to testify truthfully at his coconspirators' trial. The prosecution elected not to call Acuna as a witness; he did, however, testify for the defense.

II

Acuna argues that his sentence was improperly enhanced for obstruction of justice pursuant to section 3C1.1 of the Guidelines which states: "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 (1991). Factual determinations made in the application of section 3C1.1 are reviewed for clear error. United States v. Ford, 989 F.2d 347, 351 (9th Cir.1993) (Ford ). The legal conclusion that Acuna's conduct constituted an obstruction of justice within the meaning of section 3C1.1 is reviewed de novo. Id.

The district court based the two level enhancement for obstruction of justice on two findings: (1) that Acuna breached his plea agreement with the government by failing to cooperate with government investigators, and (2) that he provided false testimony at his coconspirators' trial.

Acuna argues that the plea bargain did not require him to cooperate with the government. The government responds that the plea bargain obligated him to provide truthful information to investigators and to testify truthfully at his coconspirators' trial.

According to the terms of the plea bargain, Acuna agreed to be questioned about his and others' involvement in the case and to testify truthfully at trial regardless of who asked the questions. At the plea hearing, Acuna stated under oath that he agreed to these conditions. Although the plea agreement did not contain the word "cooperate," it is clear that Acuna was obligated to cooperate to the extent that he agreed to be interviewed and to testify truthfully at trial.

Acuna alleges that he told the truth at all times. He contends that the information he provided to the government agents and the testimony he gave at trial were fully consistent with his attorney's description given at the plea hearing of what his testimony would be. Acuna also argues that the district court erred by finding that he admitted the truth of the overt acts contained in the indictment. Thus, Acuna asserts that the district court's finding that he gave false testimony was clearly erroneous.

The government contends that Acuna lied to the agents and perjured himself on the witness stand. According to the government, immediately following the entry of the plea bargain, Acuna refused to talk with the agents. Subsequently, they interviewed him in his jail cell but he provided only limited information that was obviously false. Based on this interview, the government decided not to call Acuna as a witness because of a fear that he would not tell the truth. The government presented no evidence in support of these assertions at the sentencing hearing; therefore, these arguments are disregarded. However, the government further asserts that when the defense called Acuna, he testified falsely about his own conduct and that of his coconspirators.

The transcript of the plea hearing indicates that Acuna did not admit the truth of the overt acts alleged in the indictment at that time. However, the presentence report states,

A copy of the Superseding Indictment was shown to defendant with special attention being noted to the overt acts contained in Count I of the Superseding Indictment [Conspiracy to possess]. Defendant stated that the information contained [sic] was accurate. There was nothing in Count I of the Information that he wanted to change or alter.

The district court also found that Acuna's trial testimony contradicted tape recorded statements that he made to undercover agents during the course of the conspiracy. Based on this evidence, the district court's finding that Acuna's trial testimony was "clearly false and unworthy of belief" is not clear error. The fact that Acuna's attorney accurately described the content of his subsequent testimony does not change this conclusion. Neither does it indicate that the court's finding that Acuna breached his plea agreement was clearly erroneous.

Acuna also argues that these findings must be clearly erroneous because the district court did not identify which portions of his testimony were false. He suggests that such findings are particularly important in this case because no obstruction of justice occurred unless the false statements pertain to the instant offense. However, a district court is not required to enumerate specifically which portions of a defendant's testimony are false to justify an enhancement for obstruction of justice. United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.), cert. denied, 498 U.S. 961, 111 S.Ct. 394, 112 L.Ed.2d 403 (1990). The district court's factual findings underlying its application of section 3C1.1 were not clearly erroneous.

The issue subject to de novo review is whether Acuna's breach of his plea bargain is an obstruction of justice within the meaning of section 3C1.1. At the plea hearing, Acuna told the court that he would tell the truth at trial. Three days later, he gave testimony that the district court found to be "clearly false and unworthy of belief." The commentary to section 3C1.1 lists "providing materially false information to a judge or magistrate" as an example of the type of conduct that warrants an enhancement for obstruction of justice. U.S.S.G. § 3C1.1 comment. (n. 3(f)). In addition, violation of a plea bargain warrants a sentence enhancement for obstruction of justice. United States v. Duke, 935 F.2d 161, 162 (8th Cir.1991).

Acuna argues that even if his trial testimony was false, it was not an obstruction of justice related to his "instant offense" because he only testified falsely about his coconspirators' conduct. However, section 3C1.1 applies when "a defendant attempts to obstruct justice in a case closely related to his own, such as that of a codefendant." United States v. Bernaugh, 969 F.2d 858, 861 (10th Cir.1992); cf. United States v. Morales, 977 F.2d 1330, 1331 (9th Cir.1992) (concluding that refusal to testify at codefendant's trial after receiving immunity is obstruction of justice), cert. denied, --- U.S. ----, 113 S.Ct. 1399, 122 L.Ed.2d 772 (1993).

III

Acuna argues that the district court erred in failing to reduce his sentence by two levels for acceptance of responsibility pursuant to section 3E1.1 of the Guidelines. The district court's determination of this issue is reviewed for clear error. Ford, 989 F.2d at 352. The sentencing judge's evaluation of Acuna's acceptance of responsibility "is entitled to great deference on review." Id.

The commentary to section 3E1.1 states that "[c]onduct resulting in an enhancement under § 3C1.1 ... ordinarily indicates that the...