U.S. v. Alpert, Nos. 91-8957

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore TJOFLAT, Chief Judge, KRAVITCH, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK and CARNES; BLACK; ANDERSON; EDMONDSON; CARNES; BIRCH; Barkett
Citation28 F.3d 1104
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Helene Donna ALPERT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carl Henry ALPERT, Defendant-Appellant.
Docket Number91-9034,Nos. 91-8957
Decision Date17 August 1994

Page 1104

28 F.3d 1104
63 USLW 2182
UNITED STATES of America, Plaintiff-Appellee,
v.
Helene Donna ALPERT, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Carl Henry ALPERT, Defendant-Appellant.
Nos. 91-8957, 91-9034.
United States Court of Appeals,
Eleventh Circuit.
Aug. 17, 1994.

Page 1105

Alan J. Baverman, Atlanta, GA, for Helene Donna Alpert.

Donald F. Samuel, Garland & Samuel, P.C., Atlanta, GA, for Carl Henry Alpert.

Martin James Weinstein, Amy Weil, Asst. U.S. Attys., Atlanta, GA, for U.S.

Appeals from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, KRAVITCH, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK and CARNES, Circuit Judges. *

BLACK, Circuit Judge:

In this appeal we discuss the proper application of the United States Sentencing Guidelines (Guidelines or USSG) Sec. 3C1.1 enhancement for obstruction of justice. We also review whether it was permissible under the circumstances of this case for the district court to depart upward from the Guidelines

Page 1106

sentencing range to account for the duration and extent of fraudulent conduct. We hold that, to permit meaningful appellate review, district courts must make specific findings of fact when they enhance sentences under Guidelines Sec. 3C1.1. We also hold that upward departure from the Guidelines sentencing range to reflect the duration and extent of fraudulent conduct was inappropriate because the Guidelines adequately account for the defendant's fraudulent conduct.

I. FACTS

In 1988, the United States began investigating credit card and credit-related fraud being committed by Carl and Helene Alpert. By February 1990, the Government had located, served grand jury subpoenas on, and questioned the Alperts. In March, the Alperts' attorneys entered into plea negotiations with the Government; a final session was scheduled for April 1990. The Government withheld indictment during plea negotiations, intending to proceed later by information. 1

Before the last scheduled plea negotiation meeting in April, the Alperts disappeared. They did not leave a forwarding address with the post office, their landlord, their creditors, Helene's mother, or the Government. Their son did not return to school following a spring holiday, although school officials were not notified of his withdrawal. A U-Haul trailer they rented on April 3, 1990, was later found abandoned in Lebanon, Ohio, but the Government was unable to locate the Alperts. Consequently, plea negotiations ended and the Government presented its case against the Alperts to a grand jury. In September 1990, Carl Alpert was indicted on forty-one counts and Helene Alpert on five counts of credit card and credit-related fraud.

A few days after the indictment, Carl Alpert was arrested in California, where the family had moved, for fraudulently leasing an automobile. Carl gave police a false name upon arrest. A subsequent search of the Alperts' California home revealed dozens of false documents, indicating that the Alperts had continued to engage in their criminal activity from California. After officials determined that the Alperts had arrest warrants outstanding in Georgia, Carl was transported across the country in custody while Helene was permitted to return to Georgia on her own. In July 1991, Carl pled guilty to forty counts and Helene pled guilty to two counts of the September 1990 indictment.

At the sentencing hearing, the district court determined that the Alperts had defrauded eight financial institutions of almost $500,000 between 1984 and 1990. The district court inferred that their disappearance and subsequent activities slowed down the criminal process and enhanced both of their sentences by two levels under Sec. 3C1.1 for obstructing justice. In addition, the district court enhanced Carl Alpert's sentence by two levels under Sec. 2F1.1(b)(2) because his offenses involved more than minimal planning. The district court then departed upward by an additional three levels in Carl Alpert's sentence: two levels after determining that the Guidelines did not adequately account for the duration and extent of his fraudulent activity, and one level to ensure that his sentence would be double that of his wife.

II. DISCUSSION

A. Obstruction of Justice

Guidelines Sec. 3C1.1 provides that a sentence may be enhanced by two levels "[i]f 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." USSG Sec. 3C1.1. In applying the enhancement, the district court stated, "the defendants leaving town in the middle of plea negotiations without notifying the government and their use of phony names in California once they got there constitutes an obstruction of justice since I infer that it

Page 1107

slowed down the criminal process." The Alperts maintain that the district court erroneously applied the two-level obstruction enhancement. We agree.

This Court is bound by the Guidelines, including the commentaries that interpret or explain a guideline. Stinson v. United States, --- U.S. ----, ----, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). 2 The commentary accompanying Sec. 3C1.1 states plainly that avoiding or fleeing from arrest does not warrant an enhancement. USSG Sec. 3C1.1, comment. (n. 4(d)). This circuit and other circuits have recognized that successfully avoiding arrest, alone, does not warrant an enhancement for obstruction of justice. United States v. Burton, 933 F.2d 916, 918 (11th Cir.1991) (holding that the obstruction enhancement does not apply to flight from law enforcement officers about to make an arrest); United States v. Madera-Gallegos, 945 F.2d 264, 266-67 (9th Cir.1991) (holding obstruction enhancement inapplicable to defendants who successfully avoided arrest for nine months, knowing that Government agents were searching for them, but noting that "flight, coupled with other 'obstructive' conduct, may justify the Sec. 3C1.1 enhancement"); United States v. Sanchez, 928 F.2d 1450, 1459 (6th Cir.1991) (holding obstruction enhancement inapplicable when "defendants undoubtedly abandoned their known residence in an attempt to avoid being arrested" after learning of the arrest of a co-conspirator). This rule does not mean that such uncooperative conduct must go unpunished. When a district court finds that a defendant engaged in uncooperative conduct that does not warrant the obstruction enhancement, like flight to avoid arrest, the Guidelines note that the district court may sanction that conduct within the applicable guideline range. USSG Sec. 3C1.1, comment. (n. 4).

We conclude that the Sec. 3C1.1 enhancement does not apply to persons engaged in criminal activity who learn of an investigation into that activity and simply disappear to avoid arrest, without more. Such persons do not face a two-level enhancement for failing to remain within the jurisdiction or for failing to keep the Government apprised of their whereabouts during its pre-indictment investigation. 3 The disappearance may be considered only in determining the defendant's sentence within the otherwise applicable guideline range. In this case, then, the Alperts' sentences should not have been enhanced simply because they moved to California to avoid arrest. The Alperts may have engaged in additional conduct while avoiding arrest, however, that would warrant application of the obstruction enhancement, particularly if that conduct significantly hindered the investigation or prosecution of their offenses.

Certain uncooperative conduct deserves enhancement under Sec. 3C1.1 if it actually obstructs justice. See USSG Sec. 3C1.1, comment. (nn. 3 & 4). For example, application note 3(g) mandates the enhancement if a defendant's materially false statement to a law enforcement officer significantly obstructed or impeded the investigation or prosecution of the offense. Id. at (n. 3(g)). In order to permit meaningful appellate review, when a district court applies the obstruction enhancement because a defendant made false statements, not under oath, to law enforcement officers, it must find that the statements were false and material. It must also explain how the statements significantly obstructed or impeded the investigation or prosecution of the offense. Similarly, because "providing a false name or identification document at arrest" does not justify the enhancement "except where such conduct actually resulted in a significant hindrance to the investigation or prosecution," id. at (n. 4(a)), a district court applying the enhancement because a defendant gave a false name

Page 1108

at arrest must explain how that conduct significantly hindered the prosecution or investigation of the offense.

While we are loathe to further ritualize the sentencing process by requiring district courts to make findings of fact that may perhaps appear obvious to a judge so familiar with the parties and their circumstances, our review of the application of the Sec. 3C1.1 enhancement is a fact-specific inquiry. See Burton, 933 F.2d at 917. In this case, the district court's inference that the Alperts' activities slowed down the criminal process does not permit this Court to review the enhancement with a sufficient understanding of the factual circumstances underlying the district court's decision. Clear factual findings are necessary to assess whether one or both of the Alperts did more than simply move to avoid arrest, so that we may review whether they engaged in conduct for which the enhancement was appropriately applied under application notes 3 and 4 of the Guidelines.

We do not suggest that the record in this case cannot support a sentence enhancement for obstruction of justice. We merely hold that the district court's findings were insufficient to permit application of the enhancement. On remand, if the district court applies the Sec....

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44 practice notes
  • United States v. Hesser, No. 13–11712.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 8, 2015
    ...why that conduct warranted the enhancement.” United States v. Taylor, 88 F.3d 938, 944 (11th Cir.1996) (citing United States v. Alpert, 28 F.3d 1104 (11th Cir.1994) (en banc)). In the absence of such findings, we will remand unless “the record clearly reflects the basis for the enhancement ......
  • United States v. Rodella, No. CR 14-2783 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 5, 2015
    ...hindered the investigation or prosecution of the offense.'" United States v. Mason, 168 F. App'x at 907 (quoting United States v. Alpert, 28 F.3d 1104, at 1108 (11th Cir. 1994)(en banc)). The Eleventh Circuit did not state that, every time a district court applies § 3C1.1, it should state h......
  • United States v. Welbig, No. CR 14-3347 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 5, 2015
    ...to avoid arrest." United States v. Fread, 73 F.3d 374, at *4 (10th Cir. 1995)(table opinion)(unpublished)(quoting United States v. Alpert, 28 F.3d 1104, 1107 (11th Cir. 1994) (reversing district court's application of the obstruction-of-justice enhancement when the defendants moved states a......
  • United States v. Hesser, No. 13-11712
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 8, 2015
    ...why that conduct warranted the enhancement." United States v. Taylor, 88 F.3d 938, 944 (11th Cir. 1996) (citing United States v. Alpert, 28 F.3d 1104 (11th Cir. 1994) (en banc)). In the absence of such findings, we will remand unless "the record clearly reflects the basis for the enhancemen......
  • Request a trial to view additional results
44 cases
  • United States v. Hesser, No. 13–11712.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 8, 2015
    ...why that conduct warranted the enhancement.” United States v. Taylor, 88 F.3d 938, 944 (11th Cir.1996) (citing United States v. Alpert, 28 F.3d 1104 (11th Cir.1994) (en banc)). In the absence of such findings, we will remand unless “the record clearly reflects the basis for the enhancement ......
  • United States v. Rodella, No. CR 14-2783 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 5, 2015
    ...hindered the investigation or prosecution of the offense.'" United States v. Mason, 168 F. App'x at 907 (quoting United States v. Alpert, 28 F.3d 1104, at 1108 (11th Cir. 1994)(en banc)). The Eleventh Circuit did not state that, every time a district court applies § 3C1.1, it should state h......
  • United States v. Welbig, No. CR 14-3347 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 5, 2015
    ...to avoid arrest." United States v. Fread, 73 F.3d 374, at *4 (10th Cir. 1995)(table opinion)(unpublished)(quoting United States v. Alpert, 28 F.3d 1104, 1107 (11th Cir. 1994) (reversing district court's application of the obstruction-of-justice enhancement when the defendants moved states a......
  • United States v. Hesser, No. 13-11712
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 8, 2015
    ...why that conduct warranted the enhancement." United States v. Taylor, 88 F.3d 938, 944 (11th Cir. 1996) (citing United States v. Alpert, 28 F.3d 1104 (11th Cir. 1994) (en banc)). In the absence of such findings, we will remand unless "the record clearly reflects the basis for the enhancemen......
  • Request a trial to view additional results

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