U.S. v. Fine

Decision Date01 October 1991
Docket NumberNo. 90-50280,90-50280
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert FINE, aka: Anosh Toufigh, aka: Jacob Maarse, aka: Jack Patterson, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Appeal from the United States District Court for the Central District of California.

Michael J. Treman, Santa Barbara, Cal., for defendant-appellant.

Stephen A. Mansfield, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before NORRIS and THOMPSON, Circuit Judges, and KING, District Judge. *

WILLIAM A. NORRIS, Circuit Judge:

Fine appeals his sentence of 50 months. We affirm in part, reverse in part, vacate the sentence and remand to the district court for resentencing.

I

Appellant was charged in a multi-count indictment with a mail fraud scheme. According to the indictment, appellant engaged in four distinct fraudulent transactions in which he assumed the identities of various landowners and used their property as collateral to obtain loan proceeds. Appellant pled guilty to one count of mail fraud and one count of use of a fictitious name. These counts referred to an August 7, 1989 transaction in which appellant represented himself as a certain Anosh Toufigh and used property belonging to Toufigh as collateral without the owner's knowledge to receive $113,550.54. In return for appellant's guilty plea, the government agreed to drop the other counts which referred to similar transactions that occurred on different dates.

The Sentencing Guidelines provide for a base offense level of 6 for offenses involving fraud. See U.S.S.G. § 2F1.1(a). The Guidelines require that this base offense level be enhanced proportionately to the amount of the actual or intended monetary loss. See § 2F1.1(b). If the monetary loss exceeds $100,000 but is less than $200,000, the Guidelines in effect at the time of Fine's sentencing required that the base offense level be increased by 6 points. If the monetary loss exceeded $200,000, the Guidelines required an increase of 8 points.

In calculating the total monetary loss for enhancement purposes, U.S.S.G. § 1B1.3(a)(2) (the "Relevant Conduct" provision) requires that a sentencing judge aggregate the losses caused (or intended to be caused) by "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." (emphasis added). At sentencing, the government argued that the fraudulent transactions in the dropped counts were "relevant conduct" within the meaning of section 1B1.3(a)(2) and urged the district court to take into account losses arising from those transactions in determining the total loss. The district court agreed. Although the loss specified in the counts of conviction was less than $200,000, the district court enhanced the base offense level by 8 rather than 6 points because the total loss specified in the indictment was over $600,000.

On appeal, appellant argues that he was deprived of the benefit of his plea bargain when the district court took into consideration loss arising from counts which the government agreed to drop. Appellant's argument is squarely governed by our holding in United States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir.1991). In Castro-Cervantes, we held that a court may not rely on dismissed charges in calculating the defendant's sentence. Id. at 1082. In justifying the holding, we reasoned, "[F]or the court to let the defendant plead to certain charges and then be penalized on charges that have, by agreement, been dismissed is not only unfair; it violates the spirit if not the letter of the bargain." Id. In the present case, the district court relied on the dismissed counts to enhance appellant's sentence. Because this reliance is impermissible under our holding in Castro-Cervantes, we reverse the district court's computation of the base offense level.

II

Under U.S.S.G. § 3C1.1, if the "defendant willfully ... attempted to obstruct the administration of justice during the investigation ... of the instant offense," his base offense is enhanced by two points. Relying on the fact that appellant made false statements upon his arrest and generally provided misleading information during the initial interrogation, the government argued that appellant's base offense level should be increased by two points. The district court agreed.

We affirm the district court's enhancement of appellant's base offense level for obstruction of justice. Under United States v. Christman, 894 F.2d 339 (9th Cir.1990), "[t]he court's finding that [defendant] obstructed justice is a factual conclusion which we review for clear error." Id. at 342. Having examined the presentence report, we conclude that the court's finding that appellant obstructed justice was not clearly erroneous. Appellant made false statements to the investigating agent for several hours and he retracted his statements only after the investigating agent located evidence that directly contradicted his assertions. Appellant gave a false address after his arrest. Cf. United States v. Rodriquez-Macias, 914 F.2d 1204, 1205 (9th Cir.1990) (per curiam) (holding that a district court's finding that defendant obstructed justice simply because he used a false name at the time of his arrest was not clearly erroneous). He denied that Jack Patterson was his alias. He made up a whole story about Jack Patterson. He attempted to conceal the fact that a mailbox in Patterson's name was used in the fraudulent transactions. Considered in their totality, these facts, even when viewed in the light most favorable to appellant as mandated by Application Note 1 of Commentary to U.S.S.G. § 3C1.1, defeat his claim that the district court's finding was clearly erroneous.

III

The Guidelines further provide that a district court should reduce a base offense level by two points if the defendant has accepted responsibility. See U.S.S.G. § 3E1.1. Relying on the fact that he pled guilty to two counts, appellant argued for a reduction in the base offense level. Reasoning that, far from accepting responsibility, appellant had obstructed justice, the district court did not reduce the base offense level for acceptance of responsibility.

We affirm the district court's refusal to credit appellant for acceptance of responsibility. Under Application Note 4 of the Commentary to U.S.S.G. § 3E1.1 (Acceptance of Responsibility), "[c]onduct resulting in an enhancement under [obstruction of justice] ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct." Note 4 further provides that "there may ... be extraordinary cases in which adjustments under both [provisions] apply." Having found that appellant obstructed justice, the district court had to determine whether this case presents the extraordinary circumstances that would also warrant a finding of acceptance of responsibility. "Whether a defendant has accepted responsibility for a crime is a question of fact which the court reviews for clear error. The district court's determination will not be disturbed 'unless it is without foundation.' " United States v. Aichele, 941 F.2d 761 at 767 (9th Cir.1991) (quoting United States v. Rosales, 917 F.2d 1220, 1222 (9th Cir.1990) (quoting United States v. Smith, 905 F.2d 1296, 1301 (9th Cir.1990)) (emphasis in original). We find no basis in the record for concluding that the district court's finding that this case does not present extraordinary circumstances is without foundation.

IV

In calculating appellant's criminal history score, the presentence report treated two of appellant's prior sentences as distinct. According to the presentence report, both underlying convictions involved fraudulent transactions with very similar modus operandi. These transactions took place six months apart and appear to have been discovered as a result of a single investigation and resulted in a single arrest. They were consolidated for trial in state court. After appellant entered guilty pleas in both cases, the trial court imposed two concurrent sentences of 113 days each.

Under U.S.S.G. § 4A1.1, a defendant's criminal history category is determined, inter alia, by adding 2 points for each prior sentence of imprisonment of more than sixty days but less than thirteen months. In this case, the district court computed appellant's criminal history score by counting separately the two prior sentences of 113 days each.

Relying on U.S.S.G. § 4A1.2(a)(2) that "[p]rior...

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