Filed: Oct. 21, 2005
Latest Update: Feb. 21, 2020
Summary: a judge or magistrate.1, In response to defense counsel's characterization of, defendant's lying to the court about his name and citizenship as a, mistake, the district court said, Well, I don't call it a, mistake.-3-, bail.court in United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.
Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1735
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE DEL CARMEN CORCINO-RAMIREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Edward DeAngelo, on brief for the appellant.
Kenneth P. Madden, Donald C. Lockhart, Assistant United States
Attorneys, and Robert Clark Corrente, United States Attorney, on
brief for the appellee.
October 21, 2005
Per Curiam. Jose Del Carmen Corcino-Ramirez, a/k/a Juan
Rosado-Rivera, pled guilty to heroin trafficking charges and was
sentenced to 97 months in prison. On appeal, he claims that the
district court erred in enhancing his offense level for obstruction
of justice based on his materially false statements about his
identity and citizenship and, because of that obstruction,
declining to reduce his offense level for acceptance of
responsibility. He also claims that he is entitled to be
resentenced under United States v. Booker, 125 S. Ct. 738 (2005).
Finding those claims of error to be without merit, we affirm.
A. Obstruction of Justice
Guidelines section 3C1.1 provides for a two-level
enhancement of the offense level where "the defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the course of the investigation,
prosecution, or sentencing of the instant offense of conviction."
The commentary to this adjustment advises that it applies to, among
other kinds of conduct, "providing materially false information to
a judge or magistrate." USSG § 3C1.1, comment. (n.4(f)). On
appeal, defendant challenges the obstruction of justice enhancement
on two grounds--that he did not "willfully" provide false
information and that the false information he provided, concerning
his identity and citizenship, was not material.
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The short answer to defendant's willfulness argument is
that he waived it by conceding in the trial court that his false
statements were willfully made.1 United States v. Ruiz-Garcia, 886
F.2d 474, 476 (1st Cir. 1989). Moreover, even if this argument is
viewed as merely forfeited--and therefore subject to plain error
review, United States v. Rivera-Ruiz,
244 F.3d 263, 272 (1st Cir.
2001)--the district court did not plainly err in finding that
defendant's falsehoods were willful, given defendant's repeated use
of a false name and misrepresentation of his citizenship over a
five-month period to pre-trial services, a magistrate judge, and
the district court--including manufactured details about his
purported birth and early childhood in the United States--and the
absence of any innocent explanation of defendant's motive for doing
so. See United States v. Fox,
393 F.3d 52, 61 (1st Cir. 2004).
Nor has defendant met his heavy burden of challenging the
district court's materiality finding on appeal. See United States
v. Feldman, 83 F.3d 9, 13 (1st Cir. 1996). In making that finding,
the district court focused primarily on the materiality of
defendant's misrepresentation of United States citizenship to the
magistrate judge's consideration of whether or not to grant him
1
In response to defense counsel's characterization of
defendant's lying to the court about his name and citizenship as a
"mistake," the district court said, "Well, I don't call it a
mistake. I call it a willful act," at which point defense counsel
conceded: "That's fine. His erroneous willful act, then. He
should not have done that . . . . He knows that, and he knew it
then . . . ."
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bail. Defendant's argument that the bail determination ultimately
did not turn on that information (since bail was denied on other
grounds) is unavailing because materiality does not depend on
whether the false information actually affected the bail
determination but only on whether it could have done so. United
States v. Berrios, 132 F.3d 834, 840 (1st Cir. 1998); United States
v. Restrepo,
53 F.3d 396, 397-98 (1st Cir. 1995). The district
court's finding that defendant's citizenship was material, in that
sense, to the bail determination is not clearly erroneous.2 United
States v. Biyaga,
9 F.3d 204, 206 n.2 (1st Cir. 1993).
B. Acceptance of Responsibility
Where, as here, the district court has properly granted
an upward adjustment for obstruction of justice, a defendant bears
the burden of demonstrating that his case is so "extraordinary" as
to warrant an exception to the general rule that "[c]onduct
resulting in an enhancement [for obstruction of justice] ordinarily
indicates that the defendant has not accepted responsibility for
his criminal conduct." USSG § 3E1.1, comment. (n.4); see also
United States v. Gonzalez, 12 F.3d 298, 300 (1st Cir. 1993). Here,
defendant argues that his case was extraordinary because he
2
Because we conclude that the district court correctly granted
an upward adjustment based on defendant's material
misrepresentations to the magistrate judge at the bail hearing, we
need not consider whether his similar misrepresentations to pre-
trial services and to the district judge further supported an
upward adjustment under this section.
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attempted to correct his falsehoods shortly after the court
accepted his guilty plea. The district court rejected that
argument as, essentially, too little, too late. Given that
defendant waited more than four months to correct his repeated
false statements, that finding was not clearly erroneous.
C. Blakely/Booker Error
Defendant concedes that he did not preserve his
Blakely/Booker claim below and that the plain error standard
therefore applies. However, before arguing that he is entitled to
resentencing under the plain error standard articulated by this
court in United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.
2005), he argues that we should reconsider that standard and
conclude, instead, that a defendant need not show prejudice to
establish plain error. We have repeatedly rejected such arguments
as beyond the power of a post-Antonakopoulos panel, see, e.g.,
United States v. Villafane-Jimenez,
410 F.3d 74, 85 (1st Cir. 2005)
(per curiam); United States v. Bailey,
405 F.3d 102, 114 (1st Cir.
2005); and, for the same reason, we do so here.
Alternatively, in an attempt to show "a reasonable
probability that the district court would impose a different
sentence more favorable to the defendant under the new 'advisory
Guidelines' Booker regime," Antonakopoulos, 399 F.3d at 75,
defendant points to the fact that he was sentenced at the bottom of
the applicable Guidelines range and to various allegedly mitigating
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factors that were already proffered and rejected at his original
sentencing. That showing is insufficient to insufficient to
satisfy the third element of the plain error test. See United
States v. Sánchez-Berríos, 2005 WL 2277629, at *9 (1st Cir. Sept.
20, 2005); United States v. McLean,
409 F.3d 492, 505 (1st Cir.
2005).
For the above reasons, the district court's judgment is
affirmed. See Local R. 27(c).
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