2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-8-2003

USA v. Clark

Precedential or Non-Precedential: Precedential

Docket 02-1327

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Recommended Citation

"USA v. Clark" (2003). 2003 Decisions. Paper 824.

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PRECEDENTIAL 

 Filed January 8, 2003 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 02-1327 

UNITED STATES OF AMERICA, 

 Appellee 

v. 

ANDRE PAUL CLARK, a/k/a Paul Green, 

 Appellant 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

(D.C. Crim. No. 01-cr-00242-1) 

District Judge: Honorable James F. McClure, Jr. 

Argued October 31, 2002 

Before: NYGAARD and WEIS, Circuit Judges, and 

IRENAS,* District Judge. 

Filed: January 8, 2003 

_________________________________________________________________ 

* The Honorable Joseph E. Irenas, United States District Judge for the 

District of New Jersey, sitting by designation. 

 

 Daniel I. Siegel, Esquire (ARGUED) 

 Assistant Federal Public Defender 

 James V. Wade, Esquire 

 Federal Public Defender 

 100 Chestnut Street, Suite 306 

 Harrisburg, PA 17101 

 Attorneys for Appellant 

 Andre Paul Clark, a/k/a 

 Paul Green 

 George J. Rocktashel, Esquire 

 (ARGUED) 

 Assistant United States Attorney 

 Thomas A. Marino, Esquire 

 United States Attorney 

 Federal Building, Suite 316 

 240 West Third Street 

 Williamsport, PA 17701 

 Attorneys for Appellee 

 United States of America 

OPINION OF THE COURT 

WEIS, Circuit Judge. 
The District Court imposed an enhancement for 

obstruction of justice because in addition to oral 

statements, defendant produced a bogus birth certificate to 

support his false claim of United States citizenship. We 

reverse concluding that supplying the forged document was 

a constituent part of the charged offense and, hence, 

enhancing the sentence amounted to double counting. 

Defendant pleaded guilty to one count under 18 U.S.C. 

S 911 for falsely representing himself to be a citizen of the 

United States. The indictment charged "that defendant did 

falsely state to agents and employees of the United States 

Department of Justice, Immigration and Naturalization 

Service, Bureau of Prisons, and the United States Probation 

Office, United States District Court for the District of 

Columbia, that he was born in the Virgin Islands" when, in 

fact, he was born in Jamaica. 

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During the plea colloquy, the Assistant United States 

Attorney advised the court that the government had 

evidence of information supplied to the New York 

Department of Corrections that identified defendant, not as 

Andre Paul Clark, but as Paul Green, birthplace, Jamaica. 

The Immigration and Naturalization Service at Riker’s 

Island had also been supplied similar information. 

On several different occasions, defendant stated that he 

was born in the Virgins Islands. During a 1997 presentence 

investigation, he told a probation officer in the District of 

Columbia that his name was Andre Paul Clark and he had 

been born on March 10, 1966 in the Virgin Islands. 

On February 10, 1999 when defendant was confined at 

FCI McKean, he informed an INS agent during a telephone 

conversation that his name was Andre Paul Clark and he 

had been born in the Virgin Islands. During an interview 

with an INS agent at FCI Allenwood on January 24, 2000, 

defendant repeated that misinformation. A check of the 

Virgin Island Birth Certificate Records at that time proved 

negative. 

On May 11, 2000, defendant gave a Bureau of Prison 

official a forged birth certificate from the Virgin islands. The 

document was forwarded to the INS, which then reviewed 

its computer entries. These records revealed that defendant 

was, in fact, Paul Green. After inquiry, Jamaican 

authorities confirmed that defendant was Paul Green who 

had a conviction record on that Island. 

18 U.S.C. S 911 is a model of brevity. It reads: "Whoever 

falsely and willfully represents himself to be a citizen of the 

United States shall be fined under this title or imprisoned 

not more than three years, or both." 

The presentence report recommended an enhancement 

for obstruction of justice under U.S.S.G. S 3C1.1, 
application note 4(c), because the defendant attempted to 

hinder the INS investigation by providing a counterfeit birth 

certificate. At sentencing, the government contended that 

providing the bogus birth certificate was additional criminal 

conduct separate and apart from the basic underlying 

offense of falsely representing identity and nationality. 

Accepting that argument and applying the enhancement, 

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the district judge sentenced defendant to 18 months 

imprisonment, the minimum term within the applicable 

guideline range. 

U.S.S.G. S 3C1.1 reads: 

 "If (A) the defendant willfully obstructed or impeded, 

 or attempted to obstruct or impede, the administration 

 of justice during the course of the investigation, 

 prosecution, or sentencing of the instant offense of 

 conviction, and (B) the obstructive conduct related to 

 (I) the defendant’s offense of conviction and any 

 relevant conduct; or (ii) a closely related offense, 

 increase the offense level by 2 levels." 

Application note 4(c) of the guideline lists as an example 

of conduct to which the enhancement would apply: 

"producing or attempting to produce a false, altered, or 

counterfeit document or record during an official 

investigation or judicial proceeding." 

The government relies on United States v. Imenec , 193 

F.3d 206 (3d Cir. 1999), where we upheld an obstruction 

enhancement. In that case, defendant failed to appear in 

state court for a preliminary hearing on drug charges, and 

remained a fugitive for more than three years. Imenec, 193 

F.3d at 207. Defendant was indicted by a federal grand jury 

on the same drug charges, and after he was finally 

apprehended, he pleaded guilty in the District Court. Id. 

We concluded that Imenec had obstructed the federal 

prosecution based on his failure to appear at the state 

preliminary hearing. Id. at 210. We explained "that the 

Sentencing Commission’s intent was to impose an 

enhancement for any conduct that obstructs an 

investigation . . . that is based on the criminal conduct 

underlying the specific statutory offense for which 

defendant is being sentenced." Id. at 208. 

As we observed in United States v. Jenkins, 275 F.3d 

283, 291 (3d Cir. 2001), "[d]espite several amendments, 

U.S.S.G. S 3C1.1 is no model of clarity. [O]bstructive 

conduct cannot merely affect some global application of the 

‘administration of justice.’ [T]here must be a nexus between 

the defendant’s conduct and the investigation. . . ." In that 

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case, we decided that the obstruction enhancement did not 

apply because the defendant’s failure to appear in state 

court did not "compromise[ ] the federal investigation in any 

way." Id. at 290. "Only conduct obstructing the ‘instant 

offense of conviction’ is relevant to sentencing." Id. at 289. 

The Court in United States v. Agoro, 996 F.2d 1288, 1293 

(1st Cir. 1993), found the enhancement proper when the 

defendant made false statements to a probation officer in 

connection with the presentence report because that speech 

"further" obstructed the investigation. The Court noted, 

however, that there was "no risk of double counting" in that 

situation. Id. 

In United States v. Sabino, 307 F.3d 446 (6th Cir. 2002), 

the trial court judge declined to impose an obstruction 

enhancement because he believed it would amount to 

double counting. He reasoned that the enhancement was 

inappropriate because the defendant’s lies to the grand jury 

were part and parcel of the charged conspiracy. Id. at 448. 

The Court of Appeals disagreed, concluding that false 

statements to a grand jury were qualitatively different in 

their tendency to impede the administration of justice in 

the courts. Id. at 451. 

Coming to the opposite conclusion, however, in United 

States v. Lloyd, 947 F.2d 339, 340 (8th Cir. 1991), the 

Court reversed an obstruction enhancement on a conviction 

for concealing assets from civil officers where the defendant 

committed perjury during bankruptcy proceedings. The 

Court held that "[s]ection 3C1.1 does not apply to conduct 

that is part of the crime itself." Id. 

Similarly, in United States v. Lamere, 980 F.2d 506, 517 

(8th Cir. 1992), the Court reversed an obstruction 

enhancement based on an attempt to conceal evidence 

consisting of counterfeit money. The Court noted that the 

defendant had pleaded guilty to possessing or concealing 

counterfeit currency, and thus the "obstruction 

enhancement . . . was based upon conduct that was 

coterminous with the conduct for which he was convicted." 

Id. The Court explained that such an enhancement 

amounted to "double counting." Id. See also United States 

v. Fredette, 15 F.3d 272, 275 (2d Cir. 1994) (observing that 

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the Sentencing Commission did not intend sentence 

enhancement to be applicable when it would amount to 

double counting). 

It appears that a conflict exists between the Courts of 

Appeal for the Sixth and Eighth Circuits. In reviewing their 

respective interpretations of the Sentencing Guideline, we 

are persuaded by the Eighth’s reasoning rather than that of 

the Sixth. 

Here, the conduct that is cited as an obstruction is 

actually activity that is part of the underlying charged 
offense. The indictment states that "[f]rom on or about 

September, 1997, exact date unknown, and continuing 

through the date of this indictment [July 25, 2001], in 

Lycoming County . . . and elsewhere . . . the [d]efendant did 

falsely and wilfully . . . represent himself. . . ." The 

production of the bogus birth certificate occurred within the 

cited period, and thus is encompassed within the time the 

crime was said to have occurred. 

Moreover, we have no difficulty in holding that the 

production of the counterfeit birth certificate to the federal 

authorities constituted a false representation that the 

defendant had been born in the Virgin Islands and 

consequently was a United States citizen. Although of a 

different order than the defendant’s oral statements, it had 

precisely the same effect and was a violation of 18 U.S.C. 

S 911. 

We conclude that the production of the counterfeit birth 

certificate was coterminous with the offense to which 

defendant pleaded guilty. Consequently, it cannot be the 

basis of an obstruction of justice enhancement. 

Accordingly, the sentence will be vacated and the case 

remanded to the District Court for resentencing. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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