Isabel v. U.S.

• Decision Date: 25 November 1992
• Docket Number: No. 92-1421,92-1421
• Citation: 980 F.2d 60
• Parties: Maurice ISABEL, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 60

980 F.2d 60

Maurice ISABEL, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 92-1421.

United States Court of Appeals First Circuit.

Submitted July 8, 1992.

Decided Nov. 25, 1992.

Maurice Isabel, on brief, pro se.

Jeffrey R. Howard, U.S. Atty., and Peter E. Papps, First Asst. U.S. Atty., Concord, N.H., on motion for summary disposition, for respondent, appellee.

Before SELYA, CYR and BOUDIN, Circuit Judges.

BOUDIN, Circuit Judge.

Appellant Maurice Isabel was convicted on April 30, 1990 of conspiring to file false tax documents and conspiring to launder drug trafficking proceeds, in violation of 18 U.S.C. §§ 371, 1956(a)(1)(B)(i). On July 23, 1990, he was sentenced to fifty-seven months' imprisonment. On appeal, his conviction was affirmed. United States v. Isabel, 945 F.2d 1193 (1st Cir.1991). Isabel then filed a motion under 28 U.S.C. § 2255 seeking to have his sentence vacated, set aside or corrected. The district court denied relief, and Isabel filed the present appeal.

On this appeal, Isabel argues that the district court erred at sentencing by enhancing his sentence for obstruction of justice and by failing to reduce his base offense level to reflect acceptance of responsibility. He also says that he received ineffective assistance of counsel at sentencing and that findings required by Fed.R.Crim.P. 32(c)(3)(D) were not made. ¹ We affirm in part and remand in part.

I. THE OBSTRUCTION ENHANCEMENT

Isabel's primary claim on the appeal is a challenge to an obstruction of justice enhancement that the district court made in originally sentencing him. The court enhanced his base offense level under section 3C1.1 of the Sentencing Guidelines because Isabel made false statements to investigators after his arrest. The guideline in effect at the time of sentencing reads as follows: "If the defendant willfully impeded or obstructed, or attempted to impede or obstruct, the administration of justice during the investigation or prosecution of the instant offense, increase the offense level by 2 levels." U.S.S.G. § 3C1.1 (1989). It was Isabel's position at sentencing, as now, that any false or misleading statements he made at the time of his arrest did not in fact hamper the investigation.

In his section 2255 motion, Isabel argued to the district court that an amendment to the commentary to section 3C1.1, which occurred after his sentencing, made clear that the court should not have applied the enhancement in his case. ² The version of the commentary in effect when he was sentenced did not explicitly address the question whether false or misleading statements that fail to mislead still merit the enhancement. It did, however, contain general language stating that the section 3C1.1 enhancement applied to "a defendant who engages in conduct calculated to mislead or deceive authorities ... in respect to the instant offense." U.S.S.G. § 3C1.1, comment (1989). Based on the guideline's language, the pre-sentence report recommended an enhancement for obstruction which, after a sentencing hearing, the district court found to be justified.

Several months after Isabel was sentenced, the commentary to section 3C1.1 was amended. It now states that materially false statements to law enforcement officers "that significantly obstructed or impeded the official investigation or prosecution of the instant offense" warrant an enhancement, but other "false statements, not under oath," to law enforcement officers do not. U.S.S.G. § 3C1.1, application notes 3(g) and 4(b) (1992). We have interpreted that provision to mean precisely what it says: that an enhancement may be made for unsworn, false statements to law enforcement officers only if the government shows that the statements significantly obstructed or impeded the official investigation or prosecution of the offense. See United States v. Manning, 955 F.2d 770, 774-75 & n. 5 (1st Cir.1992). Isabel argues that his statements did not obstruct the government's investigation or prosecution, and that thus the district court erred in enhancing the base offense level used in calculating his sentence.

In rejecting the section 2255 motion, the district court found that Isabel's argument had no "legal merit" because the sentencing court was required to apply the law in effect at the time of sentencing. The court also stated that its findings at the time of sentencing meant that it would necessarily have enhanced Isabel's sentence even under the amended commentary. We think that the district judge's original decision to enhance was entirely understandable in light of the general language of the 1989 guideline and commentary. But we conclude for the reasons stated below that the new and explicit commentary language favoring Isabel, contained in the subsequent amendment, is properly treated as a clarification rather than a substantive change. The pertinent language, as we noted at the outset, makes the guideline inapplicable to an unsworn lie to law enforcement officials that does not in fact hinder an investigation. Giving Isabel the benefit of that clarification, we do not believe that the district court's findings to date, either at sentencing or in the section 2255 proceeding, show that the enhancement was warranted.

It is true that a sentencing court applies the law in effect at the date of sentencing. Nevertheless, in interpreting an applicable guideline virtually all circuits have found or stated that it is appropriate to consider post-sentencing amendments that clarify but do not substantively change the guideline. Among numerous cases to this effect are United States v. Perdomo, 927 F.2d 111, 116-17 (2d Cir.1991), United States v. Howard, 923 F.2d 1500, 1504 & n. 4 (11th Cir.1991), and United States v. Caballero, 936 F.2d 1292, 1299 n. 8 (D.C.Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 943, 117 L.Ed.2d 113 (1992), but many more could be cited. We readily follow this uniform approach and turn to the guideline and amendment at issue in this case.

It is a close question whether the commentary amendment here in issue should be treated as a "clarification" or instead as a substantive "revision" of the guideline. These are not clear-cut categories. Where the line is to be drawn may well reflect not only language and intent but also implicit judgments as to the Sentencing Commission's function and the role of guideline commentary. In this case, the language of the guideline itself, unqualified by any contrary commentary prior to the 1990 amendment, provides an enhancement for a defendant who "attempted to impede or obstruct" an investigation. This language surely permits--even encourages--one to think that a deliberate material lie, although unsuccessful, might qualify as attempted obstruction. Indeed, a number of circuits so held prior to the 1990 amendment. See e.g., United States v. Blackman, 904 F.2d 1250, 1259 (8th Cir.1990); United States v. Irabor, 894 F.2d 554, 556 (2d Cir.1990).

Nevertheless, the Sentencing Commission regards its amended commentary on the obstruction issue as a clarification, for the Commission stated that "[t]his amendment clarifies the operation of § 3C1.1...." U.S.S.G.App. C at 166 (1992). The amended commentary does not in any sense read the term "attempted" out of the guideline, nor prevent all attempted but unsuccessful obstructions from triggering an enhancement. Rather, it modulates the guideline by excluding some actions that could literally be described as attempts (and indeed some actions that could literally be described as obstructions), presumably on the ground that they are not significant enough to warrant enhancement. ³ We give due weight to the Commission's view not merely as the drafter of the guideline and the amendment but as the expert entity with on-going responsibility for clarifying and amending the guidelines. ⁴

One sister circuit has already held that the 1990 amendment to the section 3C1.1 commentary, insofar as it dealt with an attempt to obstruct, was a clarifying amendment and should be applied to a defendant who was sentenced before the amendment. United States v. Fiala, 929 F.2d 285, 290 (7th Cir.1991). This court, without directly ruling on the present issue (a post-amendment sentence was involved), has described that language as "clarify[ing]" the guideline. United States v. Moreno, 947 F.2d 7, 10 (1st Cir.1991). Finally, although sentencing policy is a matter primarily for Congress and the Commission, the amendment offers a realistic and lenient solution for the defendant who blurts out false answers at the time of arrest but does not in fact hinder the inquiry. Thus, we follow Fiala and hold that the amendment applies in this case.

In its section 2255 decision, the district court concluded that Isabel's conduct would constitute an obstruction of justice even under the amended commentary, but the court's explanation seems to us to be flawed. The district court's memorandum on this point briefly referred to the government's statement at sentencing, citing to specific pages of the transcript. These pages, however, show that the prosecutor at sentencing took the view that "the success or lack of success of Mr. Isabel's lies" should not be the test, an understandable position in light of then existing guideline language and commentary. Nor does anything in the evidence described in the prosecutor's statement show an actual obstructive effect. The facts available to us, admittedly not complete, suggest that Isabel's lies may well not have hindered the investigation.

Under these circumstances, we think the issue of enhancement for obstruction of justice needs to be remanded to the district court for a new determination under the clarified guideline. If the government can show that Isabel's statements significantly obstructed the inquiry, the enhancement will stand; otherwise, resentencing will be required based on a reduced offense level. On remand, assuming the government...