U.S. v. Aymelek

• Citation: 926 F.2d 64
• Decision Date: 07 January 1991
• Docket Number: No. 90-1510,90-1510
• Parties: UNITED STATES of America, Appellee, v. Kaya AYMELEK, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 64

926 F.2d 64

UNITED STATES of America, Appellee, v. Kaya AYMELEK, Defendant, Appellant.

No. 90-1510.

United States Court of Appeals, First Circuit.

Heard Jan. 7, 1991.

Decided Feb. 15, 1991.

Barbara A. McCarthy, for defendant, appellant.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., was on brief, for the U.S.

Before SELYA, Circuit Judge, ALDRICH and BOWNES, Senior Circuit Judges.

SELYA, Circuit Judge.

Two centuries ago, Benjamin Franklin wrote that "in this world nothing is certain but death and taxes." The author was, of course, long departed when Congress enacted the Sentencing Reform Act, as amended, 18 U.S.C. Sec. 3551 et seq. (1982 & Supp.1988); 28 U.S.C. Secs. 991-998 (Supp.1988). Were that not the case, one suspects that federal sentencing appeals might have achieved a place in Franklin's litany. This is one such appeal.

The facts of the case are not complex. In August 1989, defendant-appellant Kaya Aymelek was charged with being a deported alien unlawfully present in the United States, in violation of 8 U.S.C. Sec. 1326(a) (1988). He was tried before a jury and duly convicted. The district court sentenced him to five years in prison plus a term of supervised release.

In this appeal, Aymelek concedes his conviction. He reserves his fire for the sentence imposed, challenging both the trial court's construction of the guideline sentencing range (GSR) and its subsequent decision to sentence above that range. Finding appellant's volleys to be wide of the target, we affirm.

I. HOW THE SENTENCE EVENTUATED

Applying the 1987 version of the guidelines, ¹ the court began with a base offense level of eight pursuant to U.S.S.G. Sec. 2L1.2(a). Adopting, provisionally, the criminal history assessment contained in the presentence investigation report, the court placed appellant in criminal history category V. After taking evidence, the judge found that appellant had made false statements of material fact, warranting a two-level increase in the offense level and hiking the GSR from 15-21 months to 21-27 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). The court then departed upward to 60 months, grounding the extent of its departure on three interim calculations. See generally United States v. Harotunian, 920 F.2d 1040 (1st Cir.1990) (discussing difference between eventual departure and interim calculations upon which departure may be predicated; also discussing use of analogues in measuring extent of departure). We will address each of the court's critical rulings separately. Before doing so, however, we outline the court's sentencing paradigm, including its interim calculations, in chart form.

District Court's Interim Calculations

1. STEP 1 INITIAL GSR

A. U.S.S.G. Sec. 2L1.2 sets base offense level at 8.

B. Criminal History Category is V.

C. GSR (OL-8/CHC-V) = 15-21 months.

2. STEP 2 ADJUSTMENT OF GSR

A. Increase offense level by 2 for obstruction of justice, U.S.S.G. Sec. 3C1.1.

B. GSR (OL-10/CHC-V) = 21-27 months.

3. STEP 3 FIRST PORTION OF UPWARD DEPARTURE (INTERIM CALCULATION)

A. Increase offense level by 4; analogy drawn to U.S.S.G. Sec. 2L1.2(b)(1) (1989) (providing four-level upward adjustment for deported felons).

B. HYPOTHETICAL GSR (OL-14/CHC-V) = 33-41 months.

4. STEP 4 SECOND PORTION OF UPWARD DEPARTURE (INTERIM CALCULATION)

A. Increase criminal history category by one numeral; analogy drawn to what CHC would have been if computation of criminal history score had included prior remote convictions.

B. HYPOTHETICAL (cumulative) GSR (OL-14/CHC-VI) = 37-46 months.

5. STEP 5 THIRD PORTION OF UPWARD DEPARTURE (INTERIM CALCULATION)

A. Increase offense level by 3; no direct analogy (court attributes increase to defendant's pledge to continue committing crime).

B. HYPOTHETICAL (final) GSR (OL-17/CHC-VI) = 51-63 months.

6. STEP 6 FINAL SENTENCE: 60 months (within hypothetical GSR; represents aggregate upward departure of 33 months over top end of actual [adjusted] GSR [see Step 2, ante].

II. OBSTRUCTION OF JUSTICE--THE STEP 2 CALCULATION

The judge concluded that appellant had endeavored to obstruct prosecution of the case and mislead the court on two separate occasions. We offer a thumbnail sketch of each incident.

1. In a pretrial motion to dismiss the indictment, appellant contended that his 1986 deportation violated due process, and could not be counted against him, because he was denied law library access while incarcerated during the period of judicial review. In opposing this motion, the government submitted an affidavit from the chief detention officer of the penal institution where appellant had been held. The affiant stated that, during the period of Aymelek's immurement, (1) the prison had a law library; (2) appellant had access to it; and (3) the library contained adequate materials on immigration law. The court denied the dismissal motion. Later, based on this affidavit and supplemental testimony offered at the sentencing hearing, the court concluded that defendant had knowingly misrepresented the facts.

2. In a letter sent to the court on 9 April 1990 (after his conviction but prior to sentencing), appellant stated: "I have not been afforded an opportunity to personally receive or review my presentence report as required by Rule 33 of the Federal Rules of Criminal Procedure." It was subsequently established that this statement was literally false; appellant had been given, and used, close to an hour to review the report. Although appellant tried strenuously to put an innocent face on the seeming contradiction, the judge found to the contrary.

U.S.S.G. Sec. 3C1.1 instructs the sentencing judge to increase a defendant's offense level 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...." The government has the burden of proving upward adjustments in offense levels by preponderant evidence, not beyond all reasonable doubt. See United States v. Sklar, 920 F.2d 107, 112 (1st Cir.1990) ("the government must prove facts central to increasing a defendant's offense level by a preponderance of the evidence"); cf. United States v. Ocasio, 914 F.2d 330, 332 (1st Cir.1990) (defendant has corresponding "burden of proving his entitlement to a downward adjustment in the offense level"). Where, as here, nisi prius determines that the government carried the devoir of persuasion, bringing section 3C1.1 into play, we review the ensuing adjustment under the clearly erroneous standard. United States v. Akitoye, 923 F.2d 221, 229 (1st Cir.1991); United States v. Wheelwright, 918 F.2d 226, 228 (1st Cir.1990). We limit our inquiry, therefore, to the question of whether there is sufficient evidence in the record to support a reasoned conclusion that appellant obstructed, or attempted to obstruct, the proceedings.

Appellant mounts a four-pronged attack on the obstruction adjustment. First, he argues that the court erred by considering the detention officer's affidavit at sentencing because it was hearsay. This argument is jejune. It disregards the well-established doctrine that a sentencing court may rest upon hearsay evidence so long as it appears reliable. See United States v. Zuleta-Alvarez, 922 F.2d 33, 37 (1st Cir.1990); United States v. Wright, 873 F.2d 437, 441 (1st Cir.1989); see also U.S.S.G. Sec. 6A1.3(a) ("[T]he court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy."). Aymelek provided no evidence whatever suggesting that the affiant in this case lacked personal knowledge or had reason to prevaricate. The court was entitled to rely upon the affidavit.

Next, appellant charges that the lower court erred in refusing to permit his sister to testify at sentencing anent the library issue. The charge is baseless. For one thing, the testimonial proffer was not made until after the court had resolved the question. That was too late. When belatedly advanced, the proffer showed that the witness had no personal knowledge of the situation, but could only have testified that her brother complained to her about the dearth of law books. That was too little. It is surpassingly difficult to imagine what probative value, if any, such testimony might have had.

Appellant's third asseveration invokes the commentary to section 3C1.1, which states in part that the defendant's "testimony and statements should be evaluated in a light most favorable to [him]." U.S.S.G. Sec. 3C1.1, comment. (n. 2). This court, joining a host of other circuits, ruled only recently that the quoted language does not require settlement of all evidentiary disputes favorably to the defendant. See Akitoye, 923 F.2d at 228. Rather, the note, read in context, suggests only that the sentencing judge "resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction." United States v. Franco-Torres, 869 F.2d 797, 801 (5th Cir.1989).

Here, the court had before it sufficient evidence to discredit appellant's claims of sanctimony, even when viewed in their most positive light. The record shows unequivocally that the court, after duly considering all the evidence, was resolute in its determination that appellant had willfully misrepresented material facts. In the section 3C1.1 environment, as elsewhere under the guidelines, "matters of credibility are normally for the trial court, not this court, to decide." Wheelwright, 918 F.2d at 228; see also Akitoye, 923 F.2d at 228 (application note 2 to Sec. 3C1.1 must be interpreted to "allow[ ] reasonable latitude for credibility assessments" by the sentencing judge). Hence, the judge was free to question, and ultimately to discount, Aymelek's self-serving interpretation of the April 9 letter,...