U.S. v. Hopper, 93-10183

• Decision Date: 09 February 1994
• Docket Number: No. 93-10183,93-10183
• Citation: 27 F.3d 378
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby Lee HOPPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 378

27 F.3d 378

63 USLW 2047

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Lee HOPPER, Defendant-Appellant.

No. 93-10183.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 9, 1994. ^*

Decided June 15, 1994.

Mace J. Yampolsky, Las Vegas, NV, for defendant-appellant.

J. Gregory Damm, Asst. U.S. Atty., Las Vegas, NV, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: POOLE, BEEZER, and T.G. NELSON, Circuit Judges.

Opinion by Judge T.G. NELSON.

T.G. NELSON, Circuit Judge:

OVERVIEW

Bobby Lee Hopper (Hopper) appeals his sentence following a plea of guilty to several counts of an indictment charging various federal crimes arising from two robberies of the Stardust Casino in Las Vegas, Nevada. We are asked to decide whether the district court erred in denying his request for an additional one-level offense reduction for acceptance of responsibility pursuant to

U.S.S.G. Sec. 3E1.1(b). Also, Hopper contests the offense enhancement for obstruction of justice pursuant to U.S.S.G. Sec. 3C1.1, contending where a defendant receives a two-level offense reduction for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1(a), it is not appropriate to increase the offense level for obstruction of justice. We affirm.

FACTS

In September 1991, Hopper's father, Royal Mayne Hopper (Royal), was employed as a security guard at the Stardust Casino in Las Vegas, Nevada. Hopper and Royal planned to rob the Stardust using Royal's knowledge of the Stardust's security procedures, physical layout and movement of currency. In the early morning hours of September 25, 1991, Royal was escorting a coworker who was transferring money. Hopper entered the Stardust armed with a .45 caliber semi-automatic pistol and forced the coworker, who was unaware of Royal's complicity in the robbery, to hand over $153,000. Hopper then fled the scene in a taxi, while Royal contacted security to report the robbery.

After the first robbery, Hopper and Royal planned to commit another robbery by holding up a Loomis armored guard at the Stardust. They recruited other participants to assist them in the second robbery including Hopper's brother, Jeffrey Hopper (Jeffrey), and Wesley E. Carroll (Carroll). After two aborted attempts, a second successful robbery occurred on April 6, 1992. Jeffrey diverted security's attention by calling security and falsely reporting a fight occurring at the swimming pool. Meanwhile, Hopper and Carroll entered the Stardust disguised in beards and wigs and armed with guns. They waited for the Loomis guard, and when he arrived, they lit smoke bombs to create a screen between the gambling area and the Loomis guard. Hopper and Carroll knocked the guard to the floor and took three bags of money, containing approximately $489,000 in cash and $627,000 in negotiable instruments. Carroll also grabbed the guard's gun which Royal later buried in the desert. Hopper and Carroll then fled the Stardust in a vehicle driven by Royal. While still in the Stardust parking lot, all three men climbed over a wall into an adjacent hotel parking lot, getting into a second vehicle. After driving to another hotel parking lot, they again changed vehicles.

On April 8, 1992, following leads involving the various vehicles used during the robbery, the police arrested Royal in Las Vegas. The other participants, upon hearing of Royal's arrest, began making efforts to establish false alibis and hide evidence. Hopper and Jeffrey burned the negotiable instruments obtained and the disguises used in the robbery. The day after Royal's arrest, Hopper attempted to buy a false alibi for $20,000, and he hid robbery proceeds in a storage unit, later moving them to another unit.

Hopper was indicted for various federal crimes. His trial was scheduled for January 4, 1993. On December 16, 1992, he pled guilty to conspiracy, 18 U.S.C. Sec. 371; interference with commerce by violence, 18 U.S.C. Sec. 1951; use of a deadly weapon in a crime of violence, 18 U.S.C. Sec. 924(c); and interstate transportation of stolen property, 18 U.S.C. Sec. 2314. Finally, on December 30, 1992, he disclosed information on the robberies to the FBI.

Hopper was sentenced on March 3, 1993, under the 1992 version of the Sentencing Guidelines. The district court granted him a two-level offense reduction for acceptance of responsibility pursuant to Sec. 3E1.1(a), but denied his request for an additional one-level offense reduction under Sec. 3E1.1(b) because it found Hopper's acceptance of responsibility to be untimely. Also, the district court enhanced Hopper's offense level by two-levels for obstruction of justice pursuant to Sec. 3C1.1. Hopper appeals.

DISCUSSION

A. Standard of Review

We review the district court's decision that a case is an extraordinary case justifying a simultaneous adjustment for obstruction of justice and acceptance of responsibility for clear error. See United States v. Lato, 934 F.2d 1080, 1083 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 271, 116 L.Ed.2d 224 (1991). Acceptance of responsibility under Sec. 3E1.1 is a factual determination which we review for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir.1990). The sentencing judge is entitled to great deference because he "is in a unique position to evaluate a defendant's acceptance of responsibility." U.S.S.G. Sec. 3E1.1 comment. (n. 5). Accordingly, we review the district court's withholding of an additional one-level reduction under Sec. 3E1.1(b) for clear error. See United States v. Donovan, 996 F.2d 1343, 1343-44 (1st Cir.1993); United States v. Schau, 1 F.3d 729, 731 (8th Cir.1993).

B. Obstruction of Justice

The district court enhanced Hopper's offense level by two levels for obstruction of justice under Sec. 3C1.1 ¹ because he burned evidence and attempted to buy false alibis after hearing Royal had been arrested. Hopper argues the district court erred because it relied on unsworn testimony to conclude he obstructed justice and because an increase in the offense level for obstruction of justice under Sec. 3C1.1 and a decrease for acceptance of responsibility under Sec. 3E1.1(a) ² are incompatible. We disagree.

At the sentencing hearing, the prosecution offered unsworn statements indicating Hopper had attempted to purchase false alibis and had burned evidence. Hopper admitted to this obstructive conduct by signing a Plea Memorandum which expressly stated that he burned evidence and attempted to buy false alibis. The district court did not indicate if it relied on the unsworn statements to conclude Hopper had obstructed justice. However, in the event the district court considered the unsworn statements, we conclude it did not err.

As a general rule, "[i]n determining the relevant facts, sentencing judges are not restricted to evidence that would be admissible at trial." United States v. Burns, 894 F.2d 334, 337 (9th Cir.1990); see also Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir.) ("[A] sentencing judge has broad discretion to hear a variety of evidence normally inadmissible during trial."), cert. denied, 493 U.S. 942, 110 S.Ct. 344, 107 L.Ed.2d 332 (1989). An exception to this general rule is that inadmissible evidence cannot be considered if it lacks "sufficient indicia of reliability to support its probable accuracy." Burns, 894 F.2d at 337 (quotation omitted). However, Hopper failed to object on these grounds. By failing to object to the accuracy and reliability of the evidence, Hopper waived the issue on appeal. See United States v. Livingston, 936 F.2d 333, 335 (7th Cir.1991) (failure to object to the facts considered in sentencing resulted in waiver of issue on appeal), cert. denied, --- U.S. ----, 112 S.Ct. 884, 116 L.Ed.2d 787 (1992). Moreover, Hopper signed a Plea Memorandum which stated he burned evidence and attempted to buy false alibis. This admission alone is sufficient for the district court to grant an increase for obstruction of justice.

Hopper relies on United States v. Avila, 905 F.2d 295 (9th Cir.1990), for the proposition that an increase in his offense level for obstruction of justice is incompatible with a decrease for acceptance of responsibility. In Avila, we held Application Note 4 of Sec. 3E1.1 precluded simultaneous adjustments for obstruction of justice and acceptance of responsibility. Id. at 298. However, Avila is inapposite because it reviewed a sentence imposed under the 1987 version of the Sentencing Guidelines. Application Note 4 has since been amended to state:

Conduct resulting in an enhancement under Sec. 3C1.1 ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both Secs. 3C1.1 and 3E1.1 may apply.

U.S.S.G. Sec. 3E1.1 comment. (n. 4 (emphasis added)). Under the amended version of Application Note 4 applicable at the time Hopper was sentenced, in an extraordinary case, a defendant may be entitled to a reduction for acceptance of responsibility even though he has obstructed justice. ³

Although we have not previously established a standard for determining what is an extraordinary case within the meaning of Application Note 4, we have affirmed the district court's denial of simultaneous adjustments under Secs. 3C1.1 and 3E1.1 when the obstructive conduct is not consistent with the defendant's acceptance of responsibility. In Lato, 934 F.2d at 1083, we held the district court did not clearly err in finding the case was not an extraordinary case; we noted the "purposeful and methodical way" in which the defendant obstructed justice by attempting to suborn perjury and the insincerity of his expression of remorse. In United States v. Acuna, 9 F.3d 1442, 1446 (9th Cir.1993), the defendant, after pleading guilty, testified falsely on behalf of his coconspirators. We found this false testimony to be inconsistent with an acceptance of...