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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1386
UNITED STATES,
Appellee,
v.
JACK BIYAGA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Boudin, Circuit Judge,
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and Pollak,* Senior District Judge.
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James S. Dilday, by Appointment of the Court, with whom Grayer &
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Dilday was on brief for appellant.
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Timothy Q. Feeley, Assistant United States Attorney, with whom A.
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John Pappalardo, United States Attorney, was on brief for appellee.
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November 17, 1993
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*Of the Eastern District of Pennsylvania, sitting by designation.
POLLAK, District Judge. Jack Biyaga pled guilty in the
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United States District Court for the District of
Massachusetts to one count of bank robbery brought under 18
U.S.C. 2113(a). On February 24, 1993, he was sentenced to
41 months of incarceration to be followed by a conditional
period of supervised release. Before sentencing, a
probation officer interviewed Biyaga to prepare a
presentence report. Biyaga told the officer that (1) his
name was Jacques Bonato Biyaga, (2) he was born in St.
Thomas, U.S. Virgin Islands, and (3) he was an American
citizen. He had previously averred the same facts to the
magistrate judge during his bail hearing. Unable to verify
Biyaga's information, the probation officer confronted
defendant in the presence of counsel. Biyaga then admitted
that (1) his real name was Jacques Bonaventure Biyaga, (2)
he was born in Mbanga, Cameroun, and (3) he was an illegal
alien. Because of Biyaga's false statements, the
presentence report enhanced his offense level by two points
for obstruction of justice pursuant to U.S.S.G. 3C1.1.1
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1U.S.S.G. 3C1.1 (1992) directs the sentencing judge to
increase the Guidelines offense level by two "[i]f the
defendant willfully impeded or obstructed, or attempted to
impede or obstruct, the administration of justice during the
investigation, prosecution, or sentencing of the instant
offense."
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At his sentencing hearing, Biyaga objected to the two-point
enhancement. The district court acknowledged that Biyaga's
falsity was not relevant to the elements of the bank robbery
offense with which Biyaga was charged, but held that the
enhancement was warranted "because the misrepresentation
that the defendant is an American citizen born in the Virgin
Islands is material to the sentencing decision in this
case." On appeal Biyaga argues that the district court
erred in imposing the two-point increase because Biyaga's
misrepresentation did not relate to the count on which he
was charged, and therefore was not material under U.S.S.G.
3C1.1. On review, we conclude that the judgment of the
district court should be affirmed.
Discussion
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As a threshold matter, we find that under U.S.S.G
3C1.1 false information need not relate to the underlying
charge to be material. As amended in 1992, 3C1.1 states
that a judge shall increase the offense level by two "if 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
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offense." (Emphasis added.) The guideline thus clearly
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allows sentencing judges to enhance penalties for material
falsehoods relevant to sentencing.
We further find that sentencing judges have broad
discretion in deciding whether a falsehood is material.
Materiality is a determination by the sentencing judge that
we review only for clear error. United States v. Pineda,
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981 F.2d 569, 572 (1st Cir. 1992) (clear error standard
applies whether district court's finding based on factual
determination or application of sentencing guidelines). In
this case the question of materiality is framed by
application note 3 of U.S.S.G. 3C1.1, which provides a non-
exhaustive list of examples of the types of conduct to which
the obstruction of justice enhancement applies. Example
3(h) is "providing materially false information to a
probation officer in respect to a presentence or other
investigation for the court". We have held that "the test
of materiality for purposes of Application Note 3(h) is not
a stringent one." United States v. St. Cyr, 977 F.2d 698,
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705 (1st Cir. 1992). Appellant therefore bears a heavy
burden in trying to show that the district judge erred in
applying 3C1.1.
Biyaga tries to meet this burden by citing two
cases in which courts of appeal have found
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misrepresentations not to be material under the guidelines:
United States v. Tabares, 951 F.2d 405, 411 (1st Cir. 1991)
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(fake social security number not material), and United
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States v. Belletiere, 971 F.2d 961, 968 (3rd Cir. 1992)
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(lying about prior drug use not material). Yet each of
those cases made clear that materiality is a case-by-case
issue, and that identical falsehoods could be material
elsewhere. Belletiere, 971 F.2d at 968 ("misstatement was
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not material to the probation officer's investigation in
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this particular case) (emphasis added); Tabares, 951 F.2d at
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411 ("however material [the false statement] might have been
in some other case, it does not seem 'material' in this
one"). Thus, the question to be addressed is whether, in
the case at bar, the defendant's statements could have
interfered with the district judge's proper carrying out of
the sentencing function had the falsity of those statements
not been discovered.
The district judge explained that in this case the
false statements were material because it was his practice
when sentencing an illegal alien to suspend supervised
release from the time the defendant is deported until, and
if, he returns to the United States. The judge explained
that when a defendant is deported there is (1) no way for
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the defendant to comply with his release requirements, and
(2) no way for the supervisor to supervise.
On appeal Biyaga contends that the court can have
no reasonable concern about supervising someone not on
American soil, so a falsehood affecting whether a period of
supervised release is suspended cannot be considered
material. Biyaga's argument falls short. The judge stated
a connection between citizenship and the discretionary
sentencing decision of whether to suspend supervised
release. By definition, then, Biyaga's falsehood involved
information material to sentencing. Biyaga is also
incorrect that the district judge's sentencing practice is
irrational. The judge's explanation indicates a reasonable
concern that, in the event a defendant returns to the United
States after deportation, he then be subject to the full
period of supervised release. It was clearly within the
district court's discretion to find appellant's
misrepresentation as to citizenship to be material in this
case.2
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2We note that Biyaga's sentence is supportable elsewhere in
the record. Biyaga lied about his citizenship not only to
the probation officer, but also to the magistrate judge
during his bail hearing. Application note 3(f) to U.S.S.G.
3C1.1 suggests the two-point enhancement for providing
materially false information to a judge or magistrate. As
citizenship is material to the issue of bail, Biyaga's
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For the foregoing reasons, the judgment of the
district court is affirmed.
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misrepresentation to the magistrate judge fits the
definition of obstruction of justice under section 3C1.1.
Although the district judge never reached this issue in
overruling Biyaga's objection to the enhancement, we may
affirm on any grounds supported by the record. U.S. v.
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Arias-Santana, 964 F.2d 1262, 1264 (1st Cir. 1992); U.S. v.
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Mendoza-Acevedo, 950 F.2d 1, 3 (1st Cir. 1991).
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Document Info
Docket Number： 93-1386
Filed Date： 11/17/1993
Precedential Status： Precedential
Modified Date： 9/21/2015