United States v. Gary ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4718
FRANCIS BURT GARY, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-96-949)
Submitted: May 19, 1998
Decided: June 22, 1998
Before LUTTIG and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Lionel S. Lofton, Frances Cain-Lofton, LAW OFFICES OF LIONEL
S. LOFTON, Charleston, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Matthew R. Hubbell, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Francis B. Gary, Jr., appeals the district court's enhancements of
his base offense level and its denial of a downward adjustment for
acceptance of responsibility under the United States Sentencing
Guidelines. Finding no error, we affirm.
I.
The facts of this case are not in dispute. Gary was the sole District
Adjudications Officer ("DAO") for the United States Immigration and
Naturalization Service ("INS") in Charleston, South Carolina. As
such, Gary would determine whether applicants for naturalization had
satisfied the requirements for citizenship. To do so, Gary would inter-
view the alien, administer a civics test, and gather other evidence nec-
essary to determine eligibility for citizenship.
Agents of the Department of Justice, Office of Inspector General,
received information that Gary was taking bribes from aliens who had
applied for naturalization. An ensuing investigation revealed that
Gary was accepting bribes from aliens in exchange for favorable
treatment in connection with INS naturalization examinations.
Gary, along with six co-defendants, was charged in a sixteen count
indictment. Gary pled guilty to conspiracy to bribe a public official
and to obtain, contrary to law, the naturalization and citizenship of
persons, in violation of 18 U.S.C. § 371 (1994), and accepting a bribe
with the intent of being influenced in the performance of official acts,
in violation of 18 U.S.C. § 201(b)(2) (1994). At sentencing, the dis-
trict court enhanced Gary's base offense level by eight under U.S.S.G.
§ 2C1.1(b)(2)(B) (1997); increased Gary's base offense level by three
under U.S.S.G. § 3B1.1(b) (1997); and refused to adjust Gary's base
2
offense level for acceptance of responsibility under U.S.S.G.
§ 3E1.1(a) (1997). This appeal followed.
II.
The district court enhanced Gary's base offense level pursuant to
U.S.S.G. § 2C1.1(b)(2)(B), which states, in relevant part, that:
If the offense involved a payment for the purpose of influ-
encing an elected official or any official holding a high-level
decision-making or sensitive position, increase by 8 levels.
Gary contends that he was not an "official holding a high-level
decision-making or sensitive position."1 In support of this argument,
Gary asserts that he did not possess final decision making authority
on petitions for naturalization. He notes that his supervisors made the
ultimate determinations on such petitions.
We find that Gary's position as the sole adjudicator for the INS in
South Carolina is covered by U.S.S.G. § 2C1.1(b)(2)(B). As Gary's
title denotes, he was an adjudicator--he had the authority to subpoena
witnesses, procure testimony, analyze the credibility of witnesses, and
judge their moral character, language ability, and familiarity with
civics.2 Application note one to§ 2C1.1(b)(2)(B) provides that an "of-
ficial holding a high-level decision-making or sensitive position"
includes "prosecuting attorneys, judges, agency administrators, super-
visory law enforcement officers, and other governmental officials
with similar levels of responsibility."3 In addition, Gary held a "sensi-
tive position." As DAO, he was given access to classified and sensi-
tive information from law enforcement agencies. 4 Such information
included classified INS and FBI files, as well as access into various
data bases within the INS, the Drug Enforcement Administration, the
United States Treasury, and United States Customs. 5 Accordingly, we
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1 The government concedes that Gary was not an elected official.
2 See J.A. at 78-79.
3 U.S.S.G. § 2C1.1, comment. (n.1).
4 See J.A. at 69-71.
5 See Appellee's Br. at 7.
3
hold that the district court did not clearly err in enhancing Gary's base
offense level pursuant to § 2C1.1(b)(2)(B). 6
The district court enhanced Gary's base offense level by three
under U.S.S.G. § 3B1.1(b) to reflect Gary's role as manager or super-
visor of the bribery scheme. Gary contends that the Government
failed to produce evidence showing that he exercised any control or
otherwise supervised participants in the criminal conduct. We dis-
agree.
Application note four directs a district court to consider a non-
exhaustive list of factors when applying § 3B1.1, which include:
the exercise of decision making authority, the nature of par-
ticipation in the commission of the offense, the recruitment
of accomplices, the claimed right to a larger share of the
fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal
activity, and the degree of control and authority exercised
over others.7
The Government presented ample evidence showing that Gary
recruited others into the conspiracy and instructed them on how to
advance the scheme. Such instructions included: (1) how to falsify
naturalization applications; (2) how to arrange naturalization inter-
views with aliens in motels instead of Gary's INS office; and (3) how
to set up post office boxes in furtherance of the scheme. Gary's con-
trol and authority over others was sufficient to support the application
of the three-level enhancement, and accordingly, we hold that the dis-
trict court did not clearly err in making this adjustment.
Finally, the district court determined that Gary did not qualify for
a decrease in his base offense level for acceptance of responsibility
under U.S.S.G. § 3E1.1. Gary contends that his admission of guilt,
combined with his cooperation with the Government and his guilty
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6 See United States v. Blake, 81 F.3d 498, 503 (4th Cir. 1996) (stating
the standard of review).
7 U.S.S.G. § 3B1.1, comment. (n.4).
4
plea, demonstrate that a downward adjustment for acceptance of
responsibility was warranted. We disagree.
The Government proved, and Gary conceded, that he had
obstructed the Government's investigation. Gary withheld informa-
tion, lied about the scope of the bribery conspiracy, instructed a co-
defendant to "disappear," and told another co-defendant to deny
knowing him. Under such circumstances, a downward departure for
acceptance of responsibility is inappropriate absent extraordinary
circumstances.8 A guilty plea alone does not create "extraordinary"
circumstances warranting a finding of acceptance of responsibility
despite obstruction of justice.9 In addition, considering the extensive
nature of Gary's obstruction of justice, and the fact that he did not
plead guilty until after he had both failed a polygraph examination
and withheld information, we cannot find error in the district court's
determination.
III.
We affirm the district court's rulings. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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8 Section 3E1.1, comment. (n.4), provides:
Conduct resulting in an enhancement under § 3C1.1 (Obstructing
or Impeding the Administration of Justice) ordinarily indicates
that the defendant has not accepted responsibility for his criminal
conduct. There may, however, be extraordinary cases in which
adjustments under both §§ 3C1.1 and 3E1.1 may apply.
9 See generally United States v. Melton, 970 F.2d 1328, 1335 (4th Cir.
1992) (holding that district court did clearly err in refusing to award a
downward adjustment for acceptance of responsibility even though
defendant had entered a conditional plea of guilty).
5