United States v. McMaster , 459 F. App'x 65 ( 2012 )

11-0943-cr
United States v. McMaster
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16th day of February, two thousand twelve.
5
6 PRESENT: BARRINGTON D. PARKER,
7 RICHARD C. WESLEY,
8 RAYMOND J. LOHIER, JR.,
9 Circuit Judges.
10
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 v. 11-0943-cr
18
19 JOSEPH MCMASTER,
20
21 Defendant-Appellant.
22
23
24
25
26
27 FOR APPELLANT: DAVID TOUGER, Peluso & Touger, LLP, New
28 York, NY.
29
30 FOR APPELLEE: TELEMACHUS P. KASULIS, Assistant United
31 States Attorney (Katherine Polk Failla,
32 Assistant United States Attorney, on the
33 brief), for Preet Bharara, United States
34 Attorney for the Southern District of New
35 York, New York, NY
1
2 Appeal from the United States District Court for the
3 Southern District of New York (Sullivan, J.).
4
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
6 AND DECREED that the judgment of the United States District
7 Court for the Southern District of New York imposing a
8 sentence of 90 months’ imprisonment is AFFIRMED.
9 Appellant Joseph McMaster contests only the district
10 court’s imposition of a two-level Guidelines enhancement for
11 obstruction of justice under U.S.S.G. § 3C1.1. We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history.
14 We review a district court’s imposition of an
15 enhancement for obstruction of justice under a mixed
16 standard of review. The district court’s findings “as to
17 what acts were performed, what was said, what the speaker
18 meant by her words, and how a listener would reasonably
19 interpret those words will be upheld unless they are clearly
20 erroneous.” United States v. Cassiliano, 137 F.3d 742, 745
21 (2d Cir. 1998). The district court’s determination that the
22 “facts constitute obstruction . . . under the Guidelines,
23 however, is a matter of legal interpretation reviewed de
24 novo, giving due deference to the district court's
2
1 application of the guidelines to the facts.” Id. (internal
2 quotation marks and citations omitted).
3 McMaster argues that the district court erred by
4 imposing an obstruction of justice enhancement without
5 making the requisite finding that he had the “specific
6 intent to obstruct justice, i.e., that [he] consciously
7 acted with the purpose of obstructing justice.” United
8 States v. Woodard, 239 F.3d 159, 162 (2d Cir. 2001)
9 (internal quotation marks omitted). Section 3C1.1 provides:
10 “If the defendant willfully obstructed or impeded, or
11 attempted to obstruct or impede, the administration of
12 justice with respect to the investigation, prosecution, or
13 sentencing of the instant offense . . . increase the offense
14 level by 2 levels.” U.S.S.G. § 3C1.1. Generally, in order
15 to apply this enhancement, the district court must find that
16 the defendant acted with “specific intent to obstruct
17 justice.” Woodard, 239 F.3d at 162 (internal quotation
18 marks omitted). We have held, however, that “[c]ertain
19 conduct . . . such as intentionally failing to appear as
20 required at judicial proceedings, is so inherently
21 obstructive of the administration of justice that it is
22 sufficient that the defendant willfully engaged in the
3
1 underlying conduct, regardless of his specific purpose.”
2 United States v. Reed, 49 F.3d 895, 900 (2d Cir. 1995). For
3 instance, in United States v. Labella-Szuba, 92 F.3d 136,
4 139 (2d Cir. 1996), we held that “the fact that [the
5 defendant] consciously failed to appear at a judicial
6 proceeding is sufficient for [an obstruction of justice]
7 enhancement.”
8 Here, the undisputed facts are that McMaster knew that
9 he had been ordered to appear for a bail hearing on October
10 16, 2009. On that day, McMaster contacted the case agent and
11 informed him that he was considering not appearing in court
12 as ordered. Although the case agent attempted to convince
13 McMaster to surrender or appear in court, McMaster instead
14 chose not to appear and fled to Arizona where he remained
15 until his arrest in February 2010. Thus, regardless of
16 whether McMaster acted with the specific purpose of
17 obstructing the administration of justice, the fact that he
18 consciously failed to appear at a judicial proceeding is
19 sufficient for a § 3C1.1 enhancement. Labella-Szuba, 92
20 F.3d at 139. Accordingly, the district court’s two-level
21 enhancement of McMaster’s offense level was not erroneous.
22
4
1 We have considered McMaster’s remaining arguments and,
2 after a thorough review of the record, find them to be
3 without merit.
4 For the foregoing reasons, the judgment of the district
5 court imposing a sentence of 90 months’ imprisonment is
6 hereby AFFIRMED.
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
5