USCA1 Opinion

July 6, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-1772

UNITED STATES,

Appellee,

v.

CHRISTOPHER ONYEJEKWE,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

__________________________

____________________

Before

Torruella, Chief Judge,

___________
Selya and Stahl, Circuit Judges.
______________

____________________

Christopher Onyejekwe on brief pro se.

_____________________
Sheldon Whitehouse, United
__________________

States Attorney, and James H. Leav

______________

Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per Curiam.
___________

Onyejekwe pled

Sentence

On

May

guilty to

2,

one

1994, appellant

count of

was imposed on July 8, 1994.

Christopher

credit card

fraud.

This appeal followed.

Appellant seeks to vacate his guilty plea and sentence on the

ground of ineffective assistance of counsel.

various sentencing

errors.

the district court erred

In particular,

He also alleges

he contends that

(1) in applying the obstruction-of-

justice enhancement based on a finding that he lied about his

residence at

two

criminal

the suppression

history points

hearing; (2) in

based

on

assessing him

a finding

committed the instant offense (i.e., relevant

that

he

conduct) while

serving a state sentence of probation; and (3) in determining

the amount

of restitution.

For the

following reasons,

we

affirm.

BACKGROUND

Because

plea,

we derive

portion of

well

appellant's conviction

the

the

resulted from

pertinent facts

from the

Presentence Investigation

as the remainder of the

record.1

a guilty

uncontested

Report (PSR),

as

See United States v.

___ _____________

____________________

1.

This

record

includes transcripts

evidentiary

hearing

disposition

hearing.

includes many documents

court--including

on

the
We

note

motion
that

of

the arraignments,
to

suppress,

and

appellant's appendix

which were not filed in the district

transcripts of

testimony before

jury--and are, thus, outside the record.

the grand

See Fed. R. App. P.

___

Tejada-Beltran, 50 F.3d 105, 107 (1st

______________

15,

1993, appellant and

his co-defendant, Elizabeth Mogaji,

were secretly indicted with five

access

devices.2

arrested on

was

maiden names,

18 U.S.C.

October 20, 1993.

carrying "a

list

etc."

Cir. 1995). On October

counts of fraudulent use of

1029(a)(2), 2.

Appellant was

At the time of his arrest, he

of names,

dates

An arraignment

of birth,

mothers'

and bail hearing

were

held

on

services

October 21,

and the

1993.

Appellant informed

magistrate that

Avenue, Providence.

he lived at

pre-trial

202 Bellevue

The government proffered that

appellant

actually resided at 10 Stamford Avenue, Providence.

On October 22, 1993, Mogaji

Avenue,

Medeiros.

where

she

was

On October

living

25, 1993,

was arrested at 10 Stamford

under

the

name

federal agents

search warrant at 10 Stamford Avenue.

of Althea

executed a

Among the items seized

were credit cards in the names of Althea Medeiros and John P.

Medeiros and documents in the names of

On

from

Onyejekwe and Mogaji.

October 29, 1993, a federal agent seized two plastic bags

the

cellar

of

the

Stamford property.

contained incriminating documents, including GM

in

the names

of

Althea and

Leonard Medeiros;

These

bags

credit cards

counterfeit

drivers' licenses in various false names with a photograph of

____________________

10(a).

These latter documents, of

course, cannot inform our

decision.

2.

Elizabeth Mogaji is appellant's girlfriend.

-33

appellant

or Mogaji;

a list

of names

and other

data; and

blank credit card applications.

On

November

returned

which added

U.S.C.

2-6).

1993,

superseding

a conspiracy count

indictment

(Count 1),

was

see 18
___

371, to the five counts of credit card fraud (Counts

Several

suppress

months

the evidence

October 29, 1993.

8,

3,

1994.

later, appellant

seized

at the

filed a

motion to

Stamford property

An evidentiary hearing was held

on

on April

At this hearing, appellant testified that he lived

at 10 Stamford Avenue, and that he had placed the two plastic

bags of documents

in his own laundry dryer in

that address.

admitted that he told the

he

two

He

lived at 202 Bellevue

residences.

the cellar at

magistrate that

Avenue, but testified

The district

court denied

that he had

the motion

to

suppress

on the ground that appellant

lacked standing.

The

court stated in pertinent part:

It further

seems to me

that insofar

as

Mr. Onyejekwe is concerned we're going to

hold him to
Judge.

what he told

That

he lived

the Magistrate

at 202

Bellevue.

That was his home.

So that he would have

no

privacy in

expectation of

number 10

Stanford Street [sic] in any event.

Appellant

pled guilty

May

1994.

Count 3

The

of the

superseding

remaining

counts were

indictment

on

dismissed.

Prior to sentencing, a PSR was prepared.

The PSR

identified appellant's legal address as 202 Bellevue

Avenue.

Appellant objected on

2,

to

the ground that the PSR should reflect

-44

that he maintained

a second address

at 10 Stamford

Avenue.

The probation officer responded that during the course of his

presentence

address

interview,

that

his

appellant would periodically

her but maintained his legal

Avenue.

advised

legal

was 202 Bellevue Avenue, that Mogaji had moved to 10

Stamford Avenue, and that

with

appellant

stay

residence as 202 Bellevue

A sentencing hearing was held on July 8, 1994.

a total offense level

of III,

of 15 and a criminal

the court determined the

to be 24-30

months.

Based on

history category

guideline sentencing range

Appellant was sentenced

to 28

months

imprisonment, followed by a period of supervised release.

was also

ordered to pay restitution to

He

Chase Manhattan Bank

in the amount of $7,036.17.

DISCUSSION

I.

INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant,

court-appointed

was

inept and

rendered

who

was

represented

by

three

successive

attorneys, argues that each of his attorneys

that

their

combined

his guilty plea involuntary.

deficient

performance

He also contends that

his third attorney's assistance at the sentencing hearing was

incompetent.

Ordinarily,

we

do not

assistance of counsel arguments on

is no

exception.

attorneys failed

Appellant

address

direct appeal.

alleges, inter
_____

to investigate his case,

-55

ineffective

This case

alia, that
____

his

were ignorant and

ill-prepared, and provided

These charges depend upon

him with misleading

information.

evidentiary matters which are best

considered by the district court in the first instance.

e.g.,
____

United States
_____________

v. McGill,
______

1991)

(fact-specific claims

952 F.2d

of ineffective

16, 19

See,
___

(1st Cir.

assistance must

originally be presented to the district court).

Accordingly,

appellant's claim

not properly

of ineffective assistance is

before us.

II.

SENTENCING

A. Obstruction of Justice

U.S.S.G.

3C1.1 directs

a defendant's offense

the district court to increase

level by two levels

willfully obstructed or impeded,

"if the defendant

or attempted to obstruct or

impede,

the

investigation,

offense."

perjury.

administration

prosecution,

The enhancement

See U.S.S.G.
___

United States v.
______________

found

justice

during

sentencing of

the

the

instant

applies where a defendant commits

3C1.1, comment. (n.3(b)); see also

_________

113 S.

In the instant

that appellant

hearing.

or

Dunnigan,
________

(defining perjury).

of

perjured

Accordingly,

Ct.

(1993)

case, the district court

himself

the court

1111, 1116

at the

made a

suppression

two level

upward

adjustment to appellant's offense level.

Appellant contends

identify which

false.

that

portions of his

This contention

the district

court failed

testimony it believed

is misplaced.

The district

to

to be

court

-66

specifically found

that appellant was not

telling the truth

when he testified that he lived at 10 Stamford Avenue, a fact

material to the issue of his

suppress.

The

district

further subsidiary

appellant's

standing to bring the motion to

court

was

not required

findings or to explain

testimony.

See United States

to

make

its evaluation of

v. Tracy, 36 F.3d

___ _____________

199, 203 (1st

Cir.), cert. denied, 115 S. Ct. 609 (1994).

____________

Appellant

evidence

also

to support

falsely.

We

residence

argues

the court's

disagree.

was an

that

stated

there

is

insufficient

finding that

he testified

Although

issue from

the

the very

consistently maintained that he

until the

_____

location

lived at 202 Bellevue Avenue

district court

residence at 10 Stamford

that he

Avenue.

greet this conveniently-timed

his

beginning, appellant

suppression hearing where, for the

to the

of

first time, he

maintained a

second

The court was

entitled to

announcement with

skepticism.

Moreover, the record discloses that appellant professes to be

indigent.

two

Under the circumstances, his testimony that he has

residences is

implausible,

at

least

without

further

explanation.

We are, of course, mindful that, at the arraignment, the

government proffered that

Avenue.

out" that

house.

The government

appellant resided

stated that federal

address and arrested

In addition,

at 10

appellant when

documents belonging to

-77

Stamford

agents "staked

he left

the

appellant were

seized

from 10

Stamford

probation that

Avenue.

However, appellant

he would periodically stay

she moved to 10 Stamford Avenue.

told

with Mogaji after

This may explain why he was

observed

departing 10

personal

papers

suggests

that it was Mogaji, not appellant, who lived at the

Stamford address.

be drawn from

sentencing

in

hearing.3

were found

there,

but

why some

of his

the evidence

also

Given the conflicting inferences which may

the evidence,

court's superior

credibility, we

erred

Stamford Avenue and

cannot say

finding that

and with due

opportunity

to assess

that the district

appellant

United States v.
______________

deference to

lied

Brum, 948
____

at the

the

witness

court clearly

suppression

F.2d 817,

819 (1st

Cir.

1991) (finding

of perjury

reviewed for

clear error);

United States v. Martinez, 922 F.2d 914, 925 (1st Cir. 1991)
______________
________

(where

there

is

circumstances,

more

than

one

plausible

view

of

the

a sentencing court's choice among supportable

alternatives cannot be clearly erroneous).

B. Criminal History

____________________

3.

We

court

also reject appellant's

contention that the district

erred in failing to evaluate his testimony "in a light

most favorable to the defendant[,]" as required by U.S.S.G.

3C1.1, commentary n.1.

We

have repeatedly stated that

this

"commentary" merely requires the district court to resolve in

the

defendant's

favor

"`those

conflicts about

which

the

judge, after weighing the evidence, has no firm conviction.'"

Tracy, 36 F.3d at 204 (quoting United States v. Rojo-Alvarez,
_____
_____________
____________

944 F.2d 959, 969 (1st Cir. 1991) (quoting

In this case, the

district court did have a

other circuits)).
firm conviction

that perjury had been committed.

-88

Appellant's criminal history includes a January 21, 1993

state

conviction for embezzlement and an April 2, 1993 state

conviction for credit

was sentenced to

card fraud.

probation.

Acting

In

both cases, appellant

pursuant to U.S.S.G.

4A1.1(c),

the

history points

district

court

assessed

for these prior

him

sentences.

two

criminal

The court

added two additional criminal history points under

on the

ground that appellant committed

then

4A1.1(d)

the relevant conduct

while serving a sentence of probation.4

Appellant

argues

that

the

district

court

assessing him the two additional points under

particular,

he

accountable

for the

eighteen

Mastercard

cash

contends

that

conduct

withdrawals

between

October

he

should

involved in

made

26,

by

erred

in

4A1.1(d).

In

not

Count 6,

Mogaji

1992 and

be

using

June

13,

held

namely,

GM

1993.

Appellant claims that he was under immigration detention when

these withdrawals

use of the

were made

same credit

card.

and was facing

Under

prosecution for

the circumstances,

he

argues, Mogaji's

relevant

conduct was

conduct

within the

not foreseeable, and,

meaning

of

so, not

U.S.S.G.

1B.3.

____________________

4.

The

commentary to

points are added if

U.S.S.G.

(n.4).

that "[t]wo

the defendant committed any part

instant offense (i.e., any

____
criminal

4A1.1 states

relevant conduct) while under any

justice sentence."

U.S.S.G.

4A1.1,

Relevant conduct is defined at U.S.S.G.

United States v.
______________
1993) (holding

Smith,
_____

of the

991 F.2d

includes "relevant conduct" pursuant to

-99

1B1.3.

1468, 1470-71

that "instant offense"

under
1B1.3).

comment.
See
___

(9th Cir.

4A1.1(d)-(e)

Accordingly, he further argues, the district court should not

have considered

history under

this

conduct in

calculating

his

criminal

4A1.1(d).

We need not resolve this issue of foreseeability or

question,

raised

4A1.1(d)

permits a

conduct

committed

defendant's

in

appellant's

sentencing

by

reply

court

co-defendant

criminal history.

Count

brief,

to consider

in

1 of

the

whether

relevant

calculating

the superseding

indictment alleged a conspiracy between appellant and Mogaji.

Based on the undisputed

facts in the PSR, we

think there is

ample evidence that appellant conspired to commit credit card

fraud and that his involvement in the conspiracy continued at

least until the date of his arrest, October 20, 1993, when he

was found

to be carrying "a

mothers'

maiden names, etc."

list of names, dates

See
___

of birth,

United States v. Pinnick,

_____________
_______

47 F.3d 434, 437 (D.C. Cir. 1995) (district court may rely on

undisputed facts in PSR

any extraneous

to conclude that defendant committed

acts offered

as relevant conduct).

Indeed,

appellant's possession of the list of names and other data on

October

20,

conspiracy.

defendant,

1993 was

an overt

This was

himself,

relevant

while

act

in furtherance

conduct

serving

of the

committed by

state

sentence

the

of

-1010

probation.

Accordingly,

there was

criminal history points under

no error

4A1.1(d).5

in adding

two

C.

Restitution

Appellant

contends that

ordering him to

the amount of

the

district

pay restitution to

$7,036.17 for

court erred

in

Chase Manhattan Bank

in

the loss involved

in Count

3.

The dollar amount was apparently based on credit card charges

made by appellant

and Mogaji

Lechmere using

Chase

on two

Manhattan

separate occasions

Mastercard.

at

Appellant

contends that the amount owed to the bank should be offset by

the

value of

carrying away

certain goods

from Lechmere.

which they

did not

We decline to

succeed in

entertain this

____________________

5.

We

also reject

court failed to

PSR

R. Crim. P.

32(c)(1)).

history

The

points under

guilty

PSR assessed
4A1.1(d).

the specific

(Count 3)

probation.

district

fact as required

32(c)(3)(D) (current version

and at sentencing, defense

error because

that the

resolve disputed issues of

by former Fed.
Rule

appellant's argument

occurred

appellant two
In his

at

criminal

objections to the

counsel argued that this was

offense to which

Onyejekwe pled

before Onyejekwe

was placed

This objection to the PSR's legal conclusion

not dispute a factual assertion.

on
did

We add that in the addendum

to the PSR, the probation officer clarified that the criminal

history
conduct.

points

under

Defense

4A1.1(d) were
counsel

conclusion that the conduct

never

took

based

on

issue

relevant
with

the

involved in the dismissed counts

was relevant conduct.

-1111

claim since it was never raised below.

See
___

United States v.
_____________

Alzanki, 1995 WL 319028 at *12 (1st Cir. June 1, 1995).6

_______

Affirmed.7
________

____________________

6.

Appellant

also

argues that

receive a windfall since

pay

$7,036.17

in

Chase

Manhattan

he and Mogaji were each

restitution.

appellant will receive credit

We

think

it

Bank will
ordered to
plain

that

for restitution paid by Mogaji

towards the loss involved in Count 3, and vice versa.

7.

We

also

district

deny

court

suppression

determined

to

produce

hearing.

reporter prepared
hearing,

appellant's

request that
the

Appellant

two transcripts

the two

order

audio

recording

contends

that

the

of his testimony

that the transcripts differ,

which of

we

of

the
the
court

at that

and that it cannot be

is accurate

without comparing

them

to

the audio

recording.

He

also suggests

that the

district court may have relied on an inaccurate transcript of

his testimony
Appellant

has

clarifying the

when it
not

determined that he
followed

record.

the

See Fed.
___

proper

perjured himself.
procedure

R. App. P. 10(e).

for
In any

event, we see nothing to be gained by remanding the matter to

the

district

court.

The

differences

transcripts are insignificant.

-1212

between

the

two