U.S. v. Rickett, 95-40877
| Decision Date | 15 July 1996 |
| Docket Number | No. 95-40877,95-40877 |
| Citation | 89 F.3d 224 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Norris Claude RICKETT, Defendant-Appellant. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mary Ann Cozby, Special Assistant U.S. Attorney, Office of the United States Attorney, Tyler, TX, for plaintiff-appellee.
Wayne R. Dickey, Federal Public Defender, Tyler, TX, for defendant-appellant.
Appeal from the United States District Court for the Eastern District of Texas.
Before GARWOOD, WIENER and PARKER, Circuit Judges.
FACTS AND PROCEEDINGS BELOW
On December 4, 1994, Texas Department of Public Safety officers stopped Norris Claude Rickett ("Rickett") and his co-defendant, Rodney Terrell Elliott ("Elliott"), for changing lanes without signaling. Rickett, the driver, gave the officers a Tennessee driver's license identifying himself as Harold Dwayne Wiggins ("Wiggins"). Rickett appeared nervous as the officer was writing a warning ticket. Elliott also appeared nervous while being questioned.
While questioning Elliott, the officer detected the odor of marijuana smoke coming from the vehicle. Elliott produced the ashtray for the officer's inspection. The officer smelled the ashes contained in the ashtray and detected what he believed to be the odor of marijuana. When Elliott and Rickett were questioned concerning where they had been and where they were going, they gave conflicting statements.
As a result of the conflicting stories provided to the officers, the officers requested the assistance of a canine unit was requested to search the vehicle. After the canine unit arrived, an outside search of the vehicle was conducted. The dog showed interest at the passenger door of the vehicle. Rickett then gave the officers permission to search the interior of the vehicle. While searching the interior of the vehicle the dog alerted on the driver's side rear quarter panel where the seat belt comes from the floor next to the seat and quarter panel. After noticing that several screws were missing from the panel, the officer removed it and observed a plastic bag wrapped in duct tape. An examination of the bag revealed that it contained a white powdery substance, which was later determined to be cocaine. Two more packages were then removed from behind the panel, and both of the individuals were placed under arrest and subsequently booked into the Panola County Jail on charges of possession of cocaine and no state drug tax stamp.
On January 11, 1995, an indictment was filed charging "Harold Dwayne Wiggins" with possession of cocaine (Count 1) and conspiracy to possess with the intent to distribute cocaine (Count 3). On February 6, 1995, the real Wiggins was arrested at his place of employment by officers of the Memphis Drug Enforcement Administration ("DEA") Task Force. Wiggins told the officers he had never been to Texas and was at work on the date of the alleged offense. Wiggins explained that he gave his social security card to Rickett, his cousin, so that Rickett could obtain a Tennessee driver's license in Wiggins' name. Wiggins was released and a warrant was issued for Rickett's arrest.
Rickett surrendered himself to officers at the Memphis DEA office on February 13, 1995. A superseding indictment was filed on March 7, 1995, naming Rickett in Counts 1 and 3. On March 10, 1995, Rickett entered a plea of "not guilty" and was released on bond pending trial. On May 30, 1995, pursuant to a written agreement, Rickett pleaded guilty to Count 3 of the superseding indictment. On that same day, Rickett was interviewed by a probation officer and admitted that he had smoked marijuana on May 27, 1995. Rickett's urine specimen tested positive for THC metabolite.
A presentence report ("PSR") was then prepared. The PSR recommended that Rickett receive a two-level upward adjustment for obstruction of justice and that he receive no points for acceptance of responsibility. Rickett objected to these provisions of the PSR. Thereafter, on September 29, 1995, the parties were provided with an Addendum to the Presentence Report in response to Rickett's objections.
Rickett appeared for sentencing on October 25, 1995. At sentencing, the district court stated that it had considered Rickett's objections to the PSR, but that it had decided to adopt the findings of the PSR. Based on a total offense level of 30 and a Criminal History Category of I, the applicable guideline range for imprisonment was 97 to 121 months. Rickett was then sentenced to 105 months imprisonment, to be followed by a five-year term of supervised release. On October 27, 1995, Rickett filed a notice of appeal.
On appeal, Rickett contends that the district court erred when it sentenced him. Specifically, he argues that the district court erred when it ruled that Rickett receive a two-level upward adjustment for obstruction of justice and that he receive no points for acceptance of responsibility. We address both of these arguments below.
A district court's finding that a defendant has obstructed justice under U.S.S.G. § 3C1.1 is reviewed for clear error. United States v. McDonald, 964 F.2d 390, 392 (5th Cir.1992). Section 3C1.1 provides for the enhancement of a defendant's offense level "[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[.]" U.S.S.G. § 3C1.1. Providing a false name or identification at arrest or making false statements, not under oath, to law enforcement officers does not warrant the enhancement, unless the conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense. Id. comment. (n.4(a) and (b)). Therefore, we must examine the district court's determination as to whether Rickett's actions significantly hindered the investigation or prosecution.
At sentencing, Rule 32 requires the district court either to make findings on matters contained in the PSR that are controverted by the defendant or to make "a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing." Fed.R.Crim.P. 32(c). In the instant case, Rickett objected to the PSR's recommendation that he receive a two-level upward adjustment for obstruction of justice, thereby creating the need for a finding on this issue.
The district court made no specific finding concerning the significance of the hindrance caused by Rickett's use of the "Wiggins" driver's license. However, in complying with Rule 32, the district court may accept the facts set forth in the PSR even when those facts are disputed. United States v. Mora, 994 F.2d 1129, 1141 (5th Cir.), cert. denied, 510 U.S. 958, 114 S.Ct. 417, 126 L.Ed.2d 363 (1993). Although the district court made no finding regarding whether Rickett's action significantly hindered his investigation or prosecution, it did adopt the findings contained in the PSR in their entirety. Therefore, we review the findings contained in the PSR as if they had been made by the court.
Rickett argues that the district...
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