U.S. v. Delgado, s. 90-1545

• Decision Date: 06 September 1991
• Docket Number: Nos. 90-1545,90-2433,s. 90-1545
• Citation: 936 F.2d 303
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan A. DELGADO, Defendant-Appellant. Juan A. DELGADO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 303

936 F.2d 303

UNITED STATES of America, Plaintiff-Appellee, v. Juan A. DELGADO, Defendant-Appellant.

Juan A. DELGADO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Nos. 90-1545, 90-2433.

United States Court of Appeals,

Seventh Circuit.

Argued Dec. 11, 1990.

Decided July 3, 1991.

Rehearing and Rehearing In Banc

Denied Sept. 6, 1991.

R. Jeffrey Wagner, Asst. U.S. Atty., Office of the U.S. Atty., Milwaukee, Wis., for the U.S.

Frederick F. Cohn, Chicago, Ill. and Paul E. Sicula, Atinsky, Kahn, Sicula & Teper, Milwaukee, Wis., for Juan A. Delgado.

Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

Juan Delgado appeals his conviction and sentence, pursuant to a plea agreement, of one hundred forty-four months of confinement on one count of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and Sec. 846 as well as from the district court's dismissal of his motion for postconviction relief under 28 U.S.C. Sec. 2255. We affirm.

I. FACTUAL BACKGROUND

Delgado's conviction resulted from a series of cocaine sales made to an undercover agent of the Wisconsin Department of Justice from June through August, 1989. Delgado was indicted on one count of conspiracy to possess cocaine with intent to distribute and two counts of possession of cocaine with intent to distribute. On August 14, 1989, the court set bail in the amount of $75,000, and further conditioned his release on his reporting to the court's pre-trial services office weekly and undergoing a urinalysis test at times directed by the court's pre-trial services office. Delgado's urinalysis produced positive results for codeine on October 5, 1989 and October 19, 1989, and for cocaine on November 9, 1989 and December 11, 1989. In his responses to inquiries from pre-trial services personnel following the positive drug tests Delgado denied any drug use while out on bail.

Defendant pled guilty on December 22, 1989, and, in the course of the pre-sentence investigation, he denied that he had been convicted of illegal possession of a weapon in Passaic County, New Jersey, under the alias of Juan Martinez. Delgado made this denial even though he was an absconder from court imposed probation on this conviction. An arrest warrant was issued on May 6, 1977, for his failure to appear for a probation violation hearing and thereafter a detainer was filed after his apprehension. During his sentencing hearing on February 20, 1990, Delgado finally admitted to both his drug use and his New Jersey weapons conviction.

In sentencing Delgado the district court imposed a two-level upward adjustment for obstruction of justice based upon Delgado's false statements to the probation officer concerning his criminal record as well as his untrue declarations to pre-trial services personnel denying drug use while released on bail.

Delgado appealed his sentence. During the pendency of this appeal, Delgado filed a motion for post-conviction relief with the district court under 28 U.S.C. Sec. 2255, attempting to vacate his sentencing based upon ineffective assistance of counsel. The trial court summarily dismissed the post-conviction relief motion and Delgado appeals from the dismissal. Pursuant to Delgado's request, we consolidated his appeals.

II. ISSUES PRESENTED

This case presents the following:

(1) Did the district court err in providing Delgado with a two-level upward enhancement for obstruction of justice under Guideline Sec. 3C1.1;

(2) Should Delgado have received a two-level downward adjustment for acceptance of responsibility under Sec. 3E1.1 of the Guidelines;

(3) Should the trial court have summarily dismissed Delgado's motion for post-conviction relief under 28 U.S.C. Sec. 2255?

III. OBSTRUCTION OF JUSTICE

Delgado challenges the court's two-level upward adjustment for his obstruction of justice under Guidelines Sec. 3C1.1. ¹ As we noted in United States v. Osborne, 931 F.2d 1139, 1153 (7th Cir.1991):

"In reviewing a district court's finding that a preponderance of the evidence supported a determination that a defendant obstructed justice, we have held that: 'The sentencing court's determination that a defendant obstructed justice is ... a finding of fact. Thus, our review is under a clearly erroneous standard.' United States v. Brown, 900 F.2d 1098, 1103 (7th Cir.1990)."

Delgado misrepresented his criminal history to the probation officer conducting his pre-sentence investigation. As we noted in United States v. Jordan, 890 F.2d 968, 973 (7th Cir.1989), a case upholding an upward adjustment for obstruction of justice: "The application notes [to Guideline Section 3C1.1] list examples suggestive of behavior that would call for the adjustment, including '... furnishing material falsehoods to a probation officer in the course of pre-sentence or other investigation of the court.' " (Quoting Application Note 1(e)). It is difficult to conceive of a more material falsehood than a defendant lying to a probation officer concerning the extent of his criminal record during the pre-sentence investigation. This is particularly true 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 (detainer filed). Thus, the false information Delgado gave the court officer concerning his New Jersey criminal record provided a sufficient factual basis for the court to find obstruction of justice under Sec. 3C1.1 of the Guidelines. See also United States v. Ojo, 916 F.2d 388, 392-93 (7th Cir.1990) (upholding obstruction of justice adjustment where a defendant provided false information concerning her "name, date of birth, length of residence in the United States, current address, family history, financial status and arrest record" to a pre-trial services officer during an investigation concerning setting the amount of an appearance bond); United States v. Gaddy, 909 F.2d 196, 199 (7th Cir.1990) (upholding obstruction of justice adjustment where a defendant provided a false name to FBI agents and lied about his arrest and fingerprint record).

In United States v. Osborne, 931 F.2d 1139, 1164-68 (7th Cir.1991), we considered the related issue of whether the government was required to honor a term of a plea agreement requiring it to recommend a particular criminal history category under the Sentencing Guidelines in light of the defendant's inaccurate representation of his criminal record. Id. at 1166. We held that: "Where a defendant has failed to fully disclose his complete criminal history during plea agreement negotiations, the government is not required to be bound by an inaccurate recitation of the defendant's criminal history." Id. Just as the Osborne court held that the defendant's misrepresentations regarding his criminal record relieved the government of an obligation to carry out the agreement to recommend a particular criminal history category, it was proper for the trial court here to conclude that Delgado's inaccurate declarations regarding his criminal record in combination with his false statements concerning his drug use, interfered with the Probation Office's investigations and recommendations and merited application of the upward adjustment for obstruction of justice.

Although Delgado's provision of false information concerning his criminal record, in itself, justifies the application of the obstruction of justice adjustment, this enhancement is further supported by Delgado's denial of drug use while released on bail to pre-trial services personnel following positive drug tests. In Jordan, we also considered a situation where a defendant denied drug use when confronted with a drug test which was positive for the presence of cocaine. We held that:

"The district court did not clearly err in finding that Jordan's continued drug use while out on bail for a drug-related conviction was material to the disposition of his case, and therefore that his lie about that conduct was a material falsehood. Jordan's drug abuse during the pendency of his drug-dealing prosecution was directly relevant to both the Probation Officer and the district court in determining how Jordan's case should be handled. Monitoring the behavior of convicted defendants is a integral and critical function of the Probation Officer and of the courts in criminal case management. Such monitoring is particularly important in cases involving defendants with criminal records who have pleaded guilty to drug dealing. The importance of monitoring is buttressed by the very fact that the Probation Office takes urine specimens from defendants in Jordan's position.

We infer that the district court found that Jordan was trying to obstruct investigation of his drug-related activities as a whole, a finding bolstered by the two incidents of drug dealing that followed his plea on the urinalysis test. Jordan willfully attempted to hinder the prosecution and disposition of his case. A false statement about drug use during the sentencing stage of criminal court proceedings could thus be seen as constituting 'obstruction of justice during ... prosecution' of the case against Jordan."

Jordan, 890 F.2d at 973. Although Jordan's positive drug test and denial of drug use took place while awaiting sentencing, and Delgado's occurred when he was on bail prior to the entry of his guilty plea, we have determined that furnishing false information to court officials prior to conviction can constitute obstruction of justice. In United States v. Ojo, 916 F.2d 388, 392-93 (7th Cir.1990), we held that provision of false information concerning name, date of birth, residence in the United States, current address, family history, financial status and arrest record to a pretrial services officer in connection with the setting of bail conditions constituted obstruction of justice under Section 3C1.1 of the Guidelines. Likewise, the...