Filed: Aug. 10, 2018
Latest Update: Mar. 03, 2020
Summary: citizen, Nelson Calderon.admitted his true identity.decisions of the sentencing court. 1994) (affirming obstruction, enhancement for defendant who provided false name to probation, officer in order to conceal his criminal history); United, States v. Wilson, 197 F.3d 782, 785-86 (6th Cir.
United States Court of Appeals
For the First Circuit
No. 17-1914
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS MANUEL PÉREZ-CRISOSTOMO, a/k/a Nelson Calderon,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.
MiAngel Cody on brief for appellant.
Benjamin M. Block, Assistant United States Attorney, and
Halsey B. Frank, United States Attorney, on brief for appellee.
August 10, 2018
LYNCH, Circuit Judge. Carlos Manuel Pérez-Crisostomo
("Crisostomo") appeals from his 121-month sentence, arguing that
the district court erred in calculating his Guidelines sentencing
range ("GSR") because it imposed an unwarranted sentence
enhancement for obstruction of justice and denied him credit for
acceptance of responsibility. Having carefully reviewed the
record –- which shows that Crisostomo maintained a false identity
throughout his criminal proceedings -- we disagree and affirm.
I.
For many years predating this offense, Crisostomo, a
citizen of the Dominican Republic, used the identity of a U.S.
citizen, "Nelson Calderon." On March 7, 2016, Crisostomo was
charged with one count of conspiracy to distribute cocaine and
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), and 846. Crisostomo pleaded guilty without any plea
agreement as "Nelson Calderon" on November 21, 2016. He maintained
this false identity throughout his criminal proceedings.
While the U.S. Probation Office ("USPO") was preparing
Crisostomo's presentence investigation report ("PSR"), the
government came across evidence of his false identity: it found a
Puerto Rico driver's license photo of the real Nelson Calderon and
a Dominican passport at Crisostomo's apartment under the name
"Manuel Carlos." Confronted with this evidence, Crisostomo
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nevertheless continued to assert that he was, in fact, Nelson
Calderon.
Crisostomo refused to provide the USPO with any
information to verify his identity. Instead, he claimed that he
was born in Puerto Rico and orphaned at a young age, but could not
name the church he was allegedly raised by or the school he had
attended. He claimed that he had a brother in New York (and no
other family), but was unable to provide his brother's name. He
claimed to have a significant drug and alcohol addiction. And he
claimed to have a doctor (who treated him for various other
ailments) in Maine, but the USPO could not find any evidence that
such a doctor actually existed. As a result, the USPO was unable
to piece together an accurate social or criminal history.
The PSR calculated that Crisostomo's offense level was
32 (which included a two-level obstruction enhancement, and no
credit for acceptance of responsibility), and that his criminal
history category was I, resulting in a GSR of 121-151 months of
imprisonment, see U.S.S.G. ch. 5, pt. A, sentencing table.
Crisostomo's counsel objected to the obstruction of justice
enhancement in the PSR, arguing that Crisostomo "ha[d] no memory
of any other identity," and had "suffered a series of head traumas
which affect his cognition and memory." However, defense counsel
later filed a motion to continue because Crisostomo finally
admitted his true identity.
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Sentencing was delayed to September 7, 2017. At the
outset of the hearing, Crisostomo still maintained that he was
"Nelson Calderon," but added that "[he] heard [he was] known as
Carlos."
Two of his relatives testified at the hearing and flatly
contradicted Crisostomo's previous statements. His sister-in-law
stated that she had always "called him Carlos," and was "definitely
sure" he had never used drugs. She also revealed that he used the
name "Nelson Calderon" in order "to be a U.S. citizen" to avoid
deportation. His niece stated that he often visited her family in
Providence, Rhode Island, and that he was helpful to her family.
In light of this testimony and other facts provided by
the prosecution, the district court adopted the PSR's Guidelines
calculation, over the objection of Crisostomo's counsel. The
district court stated:
I am particularly troubled by repeated
attempts by this defendant to mislead the
Court. . . . I have indicated earlier that
his family history, in my view, was
deliberately falsified. His personal history
was falsified. Where he lived was
falsified. . . . Most troubling is that even
today when he is fully aware that I have become
aware of his true identity he continues to
attempt to mislead me with regard to his true
identity.
Nevertheless, the district judge imposed a sentence at the low end
of the GSR: 121 months' imprisonment. He also added a condition
to the PSR's terms of supervised release requiring Crisostomo to
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surrender to the Department of Homeland Security for possible
deportation upon the completion of his sentence. Crisostomo timely
appealed.
II.
Crisostomo raises two procedural challenges to the
district court's calculation of his GSR; he does not contest the
substantive reasonableness of his sentence. We review the district
court's findings of fact for clear error and conclusions of law de
novo. See United States v. Flores-Machicote, 706 F.3d 16, 20 (1st
Cir. 2013). Because Crisostomo's claims are meritless, we affirm
his sentence.
A. Obstruction of Justice Enhancement
The Sentencing Guidelines state that "providing
materially false information" to a probation officer regarding an
"investigation for the court", or to a judge or magistrate judge,
merits application of a two-level obstruction of justice
enhancement. U.S.S.G. § 3C1.1, cmt. n.4(F),(H). Crisostomo
nevertheless argues that the district court erred in imposing the
enhancement in his case because (1) he did not act "willfully,"
and (2) his false statements did not pose a "significant hindrance"
to the government's prosecution. Both arguments are unavailing.
First, the record contains ample support for the
district court's finding that Crisostomo acted with "conscious
motivation to fabricate" his identity. He not only repeatedly
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lied about his name and citizenship status, but also concealed the
fact that he had family members in Rhode Island, whom he regularly
visited, and provided the name of a fictitious doctor, who he
alleged had treated him for his various claimed medical ailments.
Further, Crisostomo's only defense -- that he
unwittingly maintained a false identity due to "memory problems
related to a brain injury and lifelong substance abuse" -- is
highly implausible. He failed to provide any evidence of his
supposed condition, and his assertions about his memory loss and
drug abuse were flatly contradicted by his sister-in-law's
statements at the sentencing hearing. That ends the matter.
Crisostomo's second argument -- that his false
statements were not "material" -- is plainly wrong and foreclosed
by circuit precedent. As a threshold matter, the correct standard
of materiality here is not, as Crisostomo asserts, whether the
statements "resulted in a significant hindrance to the
investigation or prosecution of [his] instant offense." U.S.S.G.
§ 3C1.1, cmt. n.5(A). That only applies to defendants who provide
a false identity upon arrest. Id. Here, Crisostomo continually
maintained a false identity until sentencing. Accordingly, we
need only decide whether the falsehood "could have impacted the
decisions of the sentencing court." See United States v. Kelley,
76 F.3d 436, 441 (1st Cir. 1996).
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The district court expressly found that Crisostomo's
false statements impacted its decisions. The court stated that
Crisostomo's insistence that he was Nelson Calderon made it
"difficult for probation to prepare [an accurate] life history"
and led the court "down the wrong path."
This court has also repeatedly affirmed that lying about
one's name and nationality during criminal proceedings is material
and merits an obstruction enhancement.1 See, e.g., United States
v. Berrios, 132 F.3d 834, 840 (1st Cir. 1998) (affirming
obstruction enhancement for providing a false name, date of birth,
and other personal information during trial); United States v.
Restrepo,
53 F.3d 396, 397-98 (1st Cir. 1995) (affirming
obstruction enhancement for providing false identification
information to pretrial services officer); United States v.
Biyaga,
9 F.3d 204, 205-06 (1st Cir. 1993) (affirming obstruction
enhancement for lying about name and citizenship status to
probation officer). The obstruction enhancement here was plainly
warranted.
1 Other circuits have held the same. See, e.g., United
States v. Trujillo, 502 F.3d 353, 359 (5th Cir. 2007) (affirming
obstruction enhancement for defendant who provided false statement
about his nationality to probation officer); United States v.
Mohammed,
27 F.3d 815, 823 (2d Cir. 1994) (affirming obstruction
enhancement for defendant who provided false name to probation
officer in order to conceal his criminal history); accord United
States v. Doe,
661 F.3d 550, 566-67 (11th Cir. 2011); United States
v. Bedolla-Zavala,
611 F.3d 392, 396-97 (7th Cir. 2010); United
States v. Wilson,
197 F.3d 782, 785-86 (6th Cir. 1999).
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B. Acceptance of Responsibility Credit
Crisostomo also contends that the district court erred
in denying him credit for acceptance of responsibility –- a two-
level reduction defendants often receive for timely pleading
guilty, see U.S.S.G. § 3E1.1(a) -- because he says that the denial
was based solely on the court's erroneous obstruction finding.
This argument merely rehashes his previous objection, which we
squarely rejected above.
To the extent that Crisostomo is also arguing that he
is entitled to credit notwithstanding the district court's
determination that he "willfully obstructed . . . the
administration of justice," id. § 3C1.1, that argument clearly
fails. "Conduct resulting in [such] an enhancement . . .
ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct."
Id. § 3E1.1, cmt. n.4.
Although this court has noted that an exception may be made in
"extraordinary cases," district courts are certainly not required
to give such a credit to defendants whenever they waive formal
indictment or do not object to the government's characterization
of their offense in the PSR. See United States v. Maguire,
752
F.3d 1, 6 (1st Cir. 2014). The record shows that the district
court here carefully considered the circumstances and found that
Crisostomo did not warrant the two-level reduction. There was no
error, clear or otherwise.
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The sentence is affirmed.
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