UNITED STATES of America, Appellee, v. Jose ABREU, Defendant, Radhames Concepcion-Santos, aka Thomas Torres, aka Tomas Torres, Defendant-Appellant.
No. 12-1067-CR.
United States Court of Appeals, Second Circuit.
March 14, 2013.
Yuanchung Lee, Barry D. Leiwant, Assistant Federal Defenders, Federal Defenders of New York, Inc., New York, NY, for Appellant.
Present: GUIDO CALABRESI, ROSEMARY S. POOLER, and REENA RAGGI, Circuit Judges.
SUMMARY ORDER
Defendant-Appellant Radhames Concepcion-Santos, following a November 29, 2011 bench trial, was found guilty of one count of conspiring to commit access device fraud, in violation of
We review a district court‘s decision to enhance a defendant‘s sentence for obstruction of justice for “reasonableness,” “which is akin to review for abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds of allowable discretion, committed an error of law in the course of exercising discretion, or made a clearly erroneous finding of fact.” United States v. Leslie, 658 F.3d 140, 142 (2d Cir. 2011) (per curiam) (quoting United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007) (internal quotations and citations omitted)). A district court commits “procedural error where it fails to” (1) “calculate the Guidelines range (unless omission of the calculation is justified),” (2) “makes a mistake in its Guidelines calculation,” (3) “treats the Guidelines as mandatory,” (4) “does not consider the
Section 3C1.1 of the United States Sentencing Guidelines instructs the district court to increase the offense level by two levels if “the defendant willfully ... attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction,” and “the obstructive conduct related to ... the de
Having considered whether the district court‘s findings were clearly erroneous see United States v. Stewart, 686 F.3d 156, 174 (2d Cir. 2012), giving “special deference” to conclusions based on witness testimony, United States v. Beverly, 5 F.3d 633, 642 (2d Cir. 1993), we conclude that the district court did not err in imposing the obstruction enhancement. Here, Defendant-Appellant‘s affidavit stated that the documents were not “out in the open” but “hidden from view.” The district court, however, credited three government witnesses who gave consistent, copious testimonies “in a fair amount of detail” that there were “numerous documents ... [including] credit cards, credit reports, bank statements” not only in plain view but “strewn about the defendant‘s room on the bed and on the dresser,” thus, we do not disturb the district court‘s finding of credibility. See Lincecum, 220 F.3d at 80 (finding the district court‘s credibility determination as to an obstruction of justice enhancement was not clearly erroneous).
Unlike the case of United States v. Agudelo, 414 F.3d 345, 349-50 (2d Cir. 2005), Defendant-Appellant pointed to no evidence showing his affidavit statement was the result of confusion or mistake. Instead Defendant-Appellant re-emphasized, at the suppression hearing, that his documents were not in plain view. Based, in part, on Defendant underscoring his previous affidavit statement, the court found the enhancement for obstruction is applicable because Defendant “did not walk away from but rather emphasized” the affidavit, thus his statement was “not the type ... that results from honest confusion or error.” App. 404. This is distinguishable from the case of Agudelo where the defendant was able to show confusion as to his statements. While we take seriously, that
Defendant-Appellant also alleges that the district court erred in imposing the obstruction of justice enhancement because it failed to make specific findings as to willfulness and specific intent. An obstruction of justice enhancement under
Here, the district court held a hearing and made its own findings rather than relying on facts in the presentence report. Cf. United States v. Ben-Shimon, 249 F.3d 98, 103 (2d Cir. 2001). In particular, the court found that defendant‘s affirmation was “not the type of statement that results from honest confusion or error.” App. 404. Moreover, the court recognized the deliberate nature of defendant‘s statements in finding that “he did not walk away” from but rather “emphasized” his statement at the conclusion of the suppression hearing. Id. The court thereby found willfulness, despite “not using the specific word.” Lincecum, 220 F.3d at 81. Thus, we conclude the court did not err in its findings as to the element of willfulness.
Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.