U.S. v. Bell, 91-1479

• Decision Date: 03 December 1991
• Docket Number: No. 91-1479,91-1479
• Parties: UNITED STATES of America, Appellee, v. Richard Harmon BELL, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 6

953 F.2d 6

UNITED STATES of America, Appellee, v. Richard Harmon BELL, Defendant, Appellant.

No. 91-1479.

United States Court of Appeals, First Circuit.

Heard Dec. 3, 1991.

Decided Jan. 2, 1992.

Sarah Jennings Hunt, for defendant, appellant.

Robert J. Veiga, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., was on brief, for U.S.

Before CAMPBELL and TORRUELLA, Circuit Judges, and POLLAK, ^* Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

In this sentencing guidelines appeal, defendant Richard Harmon Bell challenges the upward adjustment of his base offense level for obstruction of justice. We vacate the sentence and remand for resentencing.

On August 21, 1990, Bell was scheduled to stand trial on various firearms charges in the district court for the District of New Hampshire. When he failed to appear that day, a bench warrant was issued for his arrest. On August 29, 1990, Bell was indicted for failure to appear, a violation of 18 U.S.C. § 3146(a)(1). Slightly less than two months later, in early October 1990, Bell was arrested by United States Marshals in Newfield, Maine.

Although he was acquitted on the underlying firearms charges, Bell pleaded guilty to failure to appear. The district court set Bell's base offense level at 6 and his specific offense characteristic at 9. The court also granted a two point downward adjustment for acceptance of responsibility, and a two point upward adjustment for obstruction of justice, making a total offense level of 15. The sole issue in this appeal is whether the district court erred in adjusting upward for obstruction of justice.

The upward adjustment was based upon two sources of evidence. First, Deputy Marshal Robert J. Roberg testified at a sentencing hearing about the circumstances of Bell's arrest. Roberg stated that a group of seven law enforcement officers apprehended Bell and four other people at an auto body shop. When the officers approached the scene, Bell was standing next to a pickup truck with his hands on the hood. The officers shouted "get down, freeze, police," and the four other men immediately dropped to the ground. Bell, however, hesitated several seconds, "survey[ed] the area" and moved his hands "back off the truck" out of Roberg's view before dropping to the ground. A search revealed that Bell had on his person a loaded .357 magnum handgun and extra ammunition. In addition to this testimony, the presentence report stated that Bell had rented a post office box using the alias "Eric McGrath" prior to his arrest. At the time of his arrest, Bell was carrying the key to this post office box.

Based on this evidence, the district court imposed a two point upward adjustment for obstruction of justice. The court explained its reasoning as follows:

The fact the defendant had a loaded, concealed weapon on his person at the time of his apprehension in Maine and, in addition, had additional ammunition on his person, indicates a clear, willful intent to obstruct his apprehension.

Additionally, I find that his failure to immediately obey the officer's command to get down at the time of his apprehension ... also is a factor in the finding that I'm making.

Finally, I think that the acquisition of the post office box in an assumed name, false name, was done with a willful intention to obstruct in this case.

Although the court did not specify the guideline pursuant to which it imposed the adjustment, the presentence report and the government's sentencing memorandum recommended an obstruction adjustment pursuant to U.S.S.G. § 3C1.1. The government argued that its position was supported by § 3C1.2, a related provision, but stated that that section did not directly apply because it had been enacted after Bell's arrest.

In considering Bell's appeal, we review de novo the question whether the scope of the guidelines encompasses Bell's conduct. See United States v. Moreno, 947 F.2d 7, 9 (1st Cir.1991) (discussing § 3C1.1). And in conducting that review, we apply the guidelines in effect on the date of sentencing. United States v. Cousens, 942 F.2d 800, 802 n. 1 (1st Cir.1991) (absent ex post facto problem, sentence is reviewed under guidelines in effect at time of sentencing, not commission of offense). Because we are constrained to find that under guidelines in force on April 1, 1991, the date of Bell's sentencing, the conduct relied upon by the court was insufficient for a two point upward adjustment for obstruction of justice, we vacate Bell's sentence and remand for resentencing.

The relevant Sentencing Guidelines contain two provisions dealing with obstruction of justice. Section 3C1.1 provides that

If 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, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1. ¹ This was the only obstruction provision in effect until November 1, 1990. On November 1, 1990 § 3C1.2 took effect, codifying an adjustment for reckless endangerment during flight, which many courts had been imposing under § 3C1.1. See, e.g., United States v. John, 935 F.2d 644, 648 (4th Cir.1991); United States v. Hagan, 913 F.2d 1278, 1284-85 (7th Cir.1990) (both cases discussing obstruction adjustment for reckless endangerment before adoption of § 3C1.2). That section provides for a two level adjustment where the defendant "recklessly created a risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." U.S.S.G. § 3C1.2. In addition, a number of Application Notes were promulgated, clarifying the application of both § 3C1.1 and the new § 3C1.2.

We consider first whether Bell's use of an alias to obtain a post office box constituted an obstruction of justice under the post-November 1, 1990 guidelines. As such conduct does not relate to reckless endangerment, we apply § 3C1.1. The district court concluded that Bell had obtained the post office box with a "willful intention to obstruct," without explaining further. We think this conclusion may be treated as a finding that Bell's purpose in obtaining the post office box was to make it more difficult for the authorities to locate him. However, the November 1990 Application Notes to § 3C1.1 indicate that such conduct does not rise to the level of an obstruction of justice.

Application Note 4(d) by its terms prohibits an upward adjustment for "avoiding or fleeing from arrest." U.S.S.G. § 3C1.1 comment. (n.4(d)) (emphasis added). That is exactly what the district court found Bell to have done here, avoiding (or attempting unsuccessfully to avoid) arrest by using a false name on his post office box. Such conduct, while reprehensible, does not warrant an obstruction adjustment under § 3C1.1. Cf. United States v. Madera Gallegos, 945 F.2d 264 (9th Cir.1991) (no adjustment where defendant fled his home upon learning arrest was imminent and remained in Mexico for nine months). This conclusion is reinforced by Application Note 3, which sets forth a non-exhaustive list of conduct to which the enhancement applies. That list includes committing perjury, threatening witnesses, providing false information to a judge, and other conduct with a more direct and deleterious effect on the investigation than that at issue here. See United States v. Wilson, 904 F.2d 234, 236 (5th Cir.1990) ("Section 3C1.1 is meant to cover cases of destroying or concealing evidence, testifying untruthfully or suborning perjury, threatening witnesses or lying to an officer during the course of an investigation").

Moreover, the Application Notes also deal specifically with the use of false names and the making of false statements. While they do not directly address the use of a false name to attempt to avoid capture, their treatment of other conduct strongly suggests that an upward adjustment may not be based on the use of an alias to elude capture unless the investigation is actually impeded. Application Note 3 sets forth a "non-exhaustive list of the types of conduct to which this enhancement applies" which includes the following:

(f) providing materially false information to a judge or magistrate;

(g) providing a materially false statement to a law enforcement officer that significantly obstructed the official investigation or prosecution of the instant offense ....

U.S.S.G. § 3C1.1, comment. (n. 3). In contrast, Note 4 sets forth a nonexhaustive list of conduct which does not warrant enhancement, including

(a) providing a false name or identification document at arrest, except where such conduct actually resulted in a significant

hindrance to the investigation or prosecution of the instant offense.

(b) making false statements, not under oath, to law enforcement officers, unless Application Note 3(g) above applies....

U.S.S.G. § 3C1.1, comment. (n. 4).

Applying these Notes in United States v. Moreno, 947 F.2d 7, 9-10 (1st Cir.1991), this court held that an upward adjustment was erroneous where the defendant had done no more than give an alias to law enforcement officers during the investigation. We first found that, as there had been no false statement under oath (Note 4(b)), an adjustment could be imposed only if the defendant's conduct satisfied the requirement of Note 3(g) that there be an effect on the investigation. Id. at 10. We then found support for this holding in Note 4(a), which requires an effect on the investigation where the alias is given at arrest. We reasoned that, as proper identification is particularly important at arrest, the defendant's use of a false name during the investigation was less serious than the same conduct at arrest. Id. at 10 n. 2. We therefore concluded that an actual obstruction of the investigation would be required for adjustment, and, as there had been no such showing, the adjustment was error.

It follows from Moreno 's interpretation of the Application Notes that...