U.S. v. Surasky, 91-8553

• Decision Date: 19 October 1992
• Docket Number: No. 91-8553,91-8553
• Citation: 976 F.2d 242
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Gregory SURASKY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 242

976 F.2d 242

UNITED STATES of America, Plaintiff-Appellee, v. David Gregory SURASKY, Defendant-Appellant.

No. 91-8553.

United States Court of Appeals Fifth Circuit.

Oct. 19, 1992.

Bert W. Pluymen, Austin, Tex. (Court-appointed), for defendant-appellant.

Richard L. Durbin, Jr., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, GARWOOD, and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

David Gregory Surasky (Surasky) pleaded guilty to charges of attempting to escape from custody and conspiring to do so. He now appeals his thirty-month sentence on the ground that the district court erred in applying the United States Sentencing Guidelines (U.S.S.G. or Guidelines). Specifically, Surasky objects to the district court's decision, on the one hand, to enhance his base offense level for obstruction of justice and, on the other hand, not to reduce it for acceptance of responsibility. We vacate and remand.

Facts and Proceedings Below

Surasky, along with two other inmates, made an aborted effort to escape from the Hays County Jail in San Marcos, Texas, where he was being held in custody pending resolution of charges extraneous to this appeal. Using a metal tool which had been fashioned from an orthopedic brace and three hacksaw blades which had been smuggled into the jail, the would-be escapees had managed to remove two panes of plexiglass from a security window in the rear door of their cell block. The men had also manufactured a crude ladder using several hundred yards of dental floss, cardboard cylinders from salt and pepper shakers, and strips of cloth torn from a mattress cover. The plot was uncovered after jail officials received an anonymous tip that an escape attempt was being planned in the cell block in which Surasky was being held.

When the damaged window was discovered in the early morning hours of April 29, 1991, jail officials questioned each inmate in the cell individually. Suspicion fell on Surasky because he and one of his co-conspirators in the escape attempt, Arthur Harris Stier, occupied the two bunks nearest to the damaged window. However, when questioned, Surasky stated that he had nothing to do with the escape attempt. Nevertheless, blisters and cuts were found on Surasky's hands and other inmates told jail officials that they had witnessed Surasky's attempts to remove the window. Thus, on June 18, 1991, Surasky pleaded guilty to attempting to escape from custody in violation of 18 U.S.C. §§ 751 and 752, and conspiring to do so in violation of 18 U.S.C. § 371. When interviewed that same day by the probation officer preparing his Presentence Report (PSR), Surasky admitted his guilt and expressed remorse at his behavior.

In the PSR, the probation officer assigned Surasky a base offense level of thirteen under U.S.S.G. § 2P1.1(a)(1) and recommended that Surasky receive a two level decrease for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The PSR did not recommend an upward adjustment for obstruction of justice under U.S.S.G. § 3C1.1. After objections by the United States, however, the PSR's acceptance of responsibility recommendation was retracted in an addendum. The amended PSR still contained no obstruction of justice recommendation. At the sentencing hearing, the district court sustained the government's objection and denied Surasky an adjustment for acceptance of responsibility. The court also enhanced Surasky's base offense level by two levels for obstruction of justice on the ground that Surasky had lied about his involvement in the escape attempt when first questioned by jail officials.

So enhanced, Surasky's total offense level was fifteen which, when combined with a criminal history category of IV, produced a sentencing range of thirty to thirty-seven months. The district court sentenced Surasky to a term of thirty months imprisonment followed by three years of supervised release, a fine of $5,000, and a special assessment of $100. Surasky objected to the district court's sentencing decisions and now brings this timely appeal.

Discussion

We first consider whether the district court properly enhanced Surasky's base offense level for obstruction of justice. The district court's decision must be upheld unless it is contrary to law or clearly erroneous. See, e.g., United States v. Edwards, 911 F.2d 1031, 1033 (5th Cir.1990); 18 U.S.C. § 3742(e). The Guidelines provide that a defendant's offense level is to be enhanced if he "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. During his initial interview with jail officials, Surasky stated that he had nothing to do with the escape attempt. The government argues that this was a false statement, punishable as obstruction of justice. We disagree.

The proper scope of the Guideline's obstruction of justice provision is discussed in the Commentary to section 3C1.1:

"This provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant's denial of guilt (other than a denial of guilt under oath that constitutes perjury), ... is not a basis for application of this provision. In applying this provision in respect to alleged false testimony or statements by the defendant, such testimony or statements should be evaluated in a light most favorable to the defendant." U.S.S.G. § 3C1.1 application note 1.

The record does not reveal the exact language that Surasky used to exculpate his complicity in the escape attempt. The PSR states that when Surasky was first questioned "he stated that he had nothing to do with the escape attempt." PSR p 14, at 5. The government, in a letter objecting to the PSR signed by the Assistant United States Attorney, asserts, without any indication as to the source or precision of the information, that Surasky "stated when questioned that he knew nothing about the escape attempt, nor had he seen or heard anything." This same letter, however, continues by characterizing what Surasky then said as "a materially false statement denying his role in the offense." ¹ The district court made no findings as to just what Surasky said. In its brief in this Court, the government argues that "Surasky's denial of guilt was an attempt to obstruct justice."

Given this state of the record, Surasky's statement, when viewed, as it must be, in the light most favorable to him, is fairly described as a mere "denial of guilt" within the meaning of U.S.S.G. § 3C1.1. Accordingly, Surasky's statement cannot provide the basis for an obstruction of justice enhancement. ² See United States v. Fiala, 929 F.2d 285, 289-90 (7th Cir.1991) (reversing an obstruction of justice enhancement imposed upon a motorist who, when asked by a state trooper if he had anything illegal the car, replied that he did not, even though there was marijuana in the vehicle); see also United States v. Contreras, 937 F.2d 1191, 1194 (7th Cir.1991) (noting that "a simple denial of guilt--as in pleading not guilty, or saying to an arresting officer, 'I didn't do anything'--cannot be the basis for an obstruction enhancement under § 3C1.1."). ³

Even were we to determine that Surasky's statement was properly found to constitute more than a mere denial of guilt, we would still conclude that an obstruction of justice enhancement was improper. The application notes to U.S.S.G. § 3C1.1 provide a non-exhaustive list of examples of conduct warranting an enhancement for obstruction of justice. The example most directly on point is that of "providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense." U.S.S.G § 3C1.1 application note 3(g). ⁴ However, the Guidelines also provide as an example of what does not constitute obstruction of justice the following: "making false statements, not under oath, to law enforcement officers, unless Application Note 3(g) above applies." U.S.S.G. § 3C1.1 application note 4(b). It should be obvious that, when juxtaposed, the important ⁵ difference between these two provisions is the language in note 3(g) referring to a "significant[ ] obstruct[ion] or imped[iment]." Thus, by applying the rule of U.S.S.G. § 3C1.1, and its application notes 3(g) and 4(b), we hold that a false statement made by a defendant to law enforcement officers cannot constitute obstruction of justice unless the statement obstructs or impedes the investigation at issue significantly.

This holding is consistent with our precedents. In United States v. Rodriguez, 942 F.2d 899 (5th Cir.1991) (per curiam), cert. denied, --- U.S. ----, 112 S.Ct. 990, 117 L.Ed.2d 151 (1992), we upheld the application of an obstruction of justice enhancement to a defendant who provided the court with a fraudulent birth certificate. In so doing, we relied upon section 3C1.1's application note 3(c), which advises that a defendant obstructs justice by "producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding." However, prior to reaching this conclusion, the Rodriguez Court decided that it was unable to uphold the obstruction enhancement on the ground that the defendant had used an alias. As we said, "The fact that [the defendant used an alias] at his arrest and during the police investigation does not support the adjustment because the alias did not significantly hinder the investigation." Id. 942 F.2d at 902 (emphasis added). We based our conclusion on application note 4(a), which states that it is not obstruction of justice for a defendant to "provid[e] a false name or identification document at arrest, except where such conduct actually resulted in a significant hindrance to the...