U.S. v. Gaddy, s. 89-3037
| Decision Date | 26 July 1990 |
| Docket Number | 89-3038,Nos. 89-3037,s. 89-3037 |
| Citation | 909 F.2d 196 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James H. GADDY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Daniel P. Bach, Asst. U.S. Atty., Madison, Wis., for plaintiff-appellee.
Stephen J. Meyer, Vanmetre, Hanson & Meyer, Madison, Wis., for defendant-appellant.
James Gaddy, Chicago, Ill., pro se.
Before WOOD, Jr., FLAUM, and KANNE, Circuit Judges.
Defendant James H. Gaddy appeals his sentence under the Sentencing Guidelines. He claims that the addition of two points to his base offense level for obstruction of justice was not warranted. In addition, he argues that the district court's upward departure for possession of a gun was not supported by the facts and that the court unreasonably relied on pending charges to depart upward in his criminal history category. We affirm.
On May 19, 1989, Gaddy entered Americoin and Jewelry, a coin and jewelry store in Madison, Wisconsin. Identifying himself as Wayne Sterling, he gave the proprietor of the store a cashier's check for $4,200 for the purchase of ten gold coins. Two FBI agents were waiting for the defendant at the store. The agents had been alerted that someone using Wayne Sterling as an alias who matched the description of an individual wanted for bank fraud was in Madison attempting to purchase gold coins and a diamond. The agents arrested Gaddy after he presented the cashier's check to the proprietor.
After arresting Gaddy, the agents searched him and found four receipts from coin dealers in Illinois for the purchase of 33 gold coins. The receipts indicated that the 33 coins had been purchased with fraudulent cashier's checks between May 17 and 19, 1989, for a total price of $12,823.50. The checks purported to be drawn on the same fictitious bank as the one presented to the proprietor at Americoin. The coins were recovered from the glove box of Gaddy's rental car during a consensual search after his arrest. The agents also found a loaded .387 caliber revolver tucked into Gaddy's pants.
When arrested, Gaddy identified himself as Christopher B. Fox, III. The agents found two wallets in Gaddy's possession containing identification with Gaddy's photograph but in the names of Michael Wayne Sterling, George Allen, and Christopher B. Fox. Gaddy told the arresting agents that he used several aliases, including those reflected in the identifications. He did not tell the agents that his real name was James H. Gaddy.
On May 20, 1989, FBI agents interviewed Gaddy at the Dane County Jail. The agents told Gaddy that they wanted information about his background. In response, Gaddy replied that he had never been arrested and that he had no fingerprints on file. He continued to identify himself as Christopher B. Fox.
On May 22, 1989, Gaddy asked to speak to one of the FBI agents who had arrested him. During that meeting, Gaddy informed the FBI for the first time that his real name was James H. Gaddy. A subsequent record check revealed that Gaddy was wanted in several states on both federal and state charges concerning financial crimes.
Gaddy was charged with the interstate transportation of 33 fraudulently obtained coins in violation of 18 U.S.C. Sec. 2314. In addition, two counts of bank fraud pending against him in the Western District of Pennsylvania were transferred to the Western District of Wisconsin pursuant to Rule 20 of the Federal Rules of Criminal Procedure. Gaddy pleaded guilty to all charges.
The presentence report recommended, and the court agreed, that Gaddy should be assessed an additional two points for obstruction of justice pursuant to Guideline Sec. 3C1.1 because he gave a false name and represented that he had never been arrested or had any fingerprints on file. The court also agreed with a recommendation for an upward departure pursuant to Sec. 5K2.6 of the Guidelines based on possession of a firearm. Finally, the presentence report concluded that Gaddy's criminal history category of II underrepresented his criminal history. The government suggested an upward departure to category VI and the court agreed. Gaddy was sentenced to 52 months, followed by three years of supervised release, and was ordered to pay $6,002.57 in restitution. Gaddy appeals each of the above enhancements.
Our standard of review is well established. We review a district court's departure from the Guidelines' sentencing range to determine whether it was reasonable in light of the district court's explanations for its departure at the time of sentencing. 18 U.S.C. Secs. 3553(c), 3742(e)(3); United States v. Williams, 901 F.2d 1394, 1396 (7th Cir.1990). First we determine whether the court has adequately stated grounds that justify departure. This is a question of law and we apply a de novo review. Id. Second, we determine whether the facts that underlie the grounds for departure actually exist. Id. We accept the district court's factual findings unless they are clearly erroneous. Id. Finally, we review the degree of departure. The degree of departure must be linked to the structure of the Guidelines. United States v. Ferra, 900 F.2d 1057, 1062 (7th Cir.1990). We give deference to the district court's findings on what degree of departure is appropriate so long as it adequately reflects the structure of the Guidelines. United States v. Schmude, 901 F.2d 555, 560 (7th Cir.1990).
Gaddy contends that the two point increase for obstruction of justice was erroneous. Section 3C1.1, Willfully Obstructing or Impeding Proceedings, provides:
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.
Gaddy received an increase because he gave a false name to the FBI agents and lied about his arrest and fingerprint record. Gaddy argues that because he recanted and gave his true name two days later that he did not obstruct justice. He claims that the false name had no impact on his investigation or prosecution and therefore, the increase was not warranted.
Gaddy's argument fails to recognize that Section 3C1.1 provides an increase for attempts to obstruct justice as well as actual obstruction of justice. There can be no doubt that Gaddy attempted to obstruct justice. He had much to gain by concealing his identity. He had jumped bail in California. A magistrate, not knowing his identity or that he had jumped bail, would very likely have set bail too low to account for the risk that Gaddy would jump bail again. Moreover, Gaddy was wanted on bank fraud charges in several states. Revealing his name would have allowed prosecution on those charges. Had Gaddy successfully concealed his identity, he would have substantially interfered with the administration of justice. He attempted to do so by lying about his name, and arrest and fingerprint records. He abandoned his attempt, but the district court was not clearly erroneous in finding that he had gone sufficiently forward to constitute an attempt.
We are not alone in our conclusion that a defendant's concealment of his identity at the outset of a criminal investigation merits an increase under Sec. 3C1.1. In United States v. Brett, 872 F.2d 1365 (8th Cir.1989), the Eighth Circuit upheld a similar finding where the defendant had given a false name to the authorities at the time of his arrest. In United States v. Blackman, 897 F.2d 309 (8th Cir.1989), the Eighth Circuit required a finding that the use of the alias was a material falsehood. As noted above, had Gaddy been successful, the falsehood would have been material. The enhancement for obstruction of justice was, therefore, not erroneous.
The district court departed upward for possession of a gun. Section 5K2.6 specifically allows for upward departure for the use or possession of a weapon in the commission of an offense. The court found that Gaddy possessed the gun during the commission of the offense and that it would depart upward by sentencing Gaddy as if two points were added to the offense level. It based its degree of departure on a comparison of the increase for possession of a weapon during a drug crime and a finding that the loaded .387 caliber revolver made Gaddy similarly dangerous.
Gaddy does not object to the reason for this departure or to its degree. He only claims the district court was clearly erroneous when it found that he possessed a weapon during the commission of the offense. The offense charged was the interstate transportation from Illinois to Wisconsin of 33 gold coins which had been obtained by fraud. A gun was found on Gaddy in Wisconsin, but he claims the government did not produce evidence that he had the gun in Illinois. On this basis, Gaddy argues that the enhancement was not supported by the facts.
We do not agree. There is no dispute that Gaddy purchased some of the 33 gold coins in Rockford, Illinois on the day of his arrest in Wisconsin. After purchasing the coins, Gaddy left his car in Itasca, Illinois, a Chicago suburb, and drove a rental car to Madison where he was arrested that afternoon with a loaded revolver. Gaddy had little opportunity to obtain a gun during this time. In addition, that he carried a gun during the purchase in Madison and used the same modus operandi in Rockford as...
To continue reading
Request your trial
-
U.S. v. Sablan
...1464, 117 L.Ed.2d 610 (1992); United States v. Rodriguez, 882 F.2d 1059, 1067 (6th Cir.1989) (3-step analysis); United States v. Gaddy, 909 F.2d 196, 199 (7th Cir.1990) (similar test); United States v. Lang, 898 F.2d 1378, 1379-80 (8th Cir.1990) (similar test); United States v. White, 893 F......
-
Harris v. Old Ben Coal Co.
... ... to Section 718.202(a)(1) requires us to instruct the ... administrative law judge to reconsider some of his findings ... ...
-
U.S. v. Schweihs
...degree of departure adequately reflect the structure of the Guidelines, we will give deference to those findings. United States v. Gaddy, 909 F.2d 196, 199 (7th Cir.1990). This is not a case like Ferra, 900 F.2d at 1063-64, where the district judge gave no explanation for the degree of his ......
-
U.S. v. Coonce
...prosecutor must show it bears "sufficient indicia of reliability." The government responds to this argument by citing United States v. Gaddy, 909 F.2d 196 (7th Cir.1990), which held that a defendant must make some objection to a PSR before a court is required to make findings as to conteste......