in an enhancement under section 3C1.1, obstructing or impeding the administration of justice, ordinarily indicates that the defendant has not accepted responsibility for criminal conduct and no reduction will be allowed. On this basis, the probation officer determined that the reduction of two points for the acceptance of responsibility should not be given because Ms. Italiano obstructed justice by failing to comply with her bail conditions.
I will first consider the seriousness of Ms. Italiano's obstruction of justice.
Section 3C1.1, application note 2, provides that conduct that obstructs justice can vary widely. Section 3C1.1 refers to application note 3 as descriptive of conduct for which enhancement is applicable, while application note 4 refers to less serious conduct that can be sanctioned by sentencing within the guideline range.
Application note 3(e) refers to escaping from custody before trial. Application note 4(d) refers to avoiding or fleeing from arrest. Neither application note 3 nor application note 4 refer specifically to failing to comply with the conditions of bail. I conclude, however, that failing to comply with a condition of bail is more like the conduct referred to in application note 4(d), that is, avoiding or fleeing from arrest, then it is to escaping from custody, application note 3(e). I do so on the basis of the other sections of note 3. The conduct there is more serious then failing to comply with bail conditions and becoming a fugitive. For example, application note 3(a) deals with threatening a co-defendant or witness, while 3(b) refers to suborning of perjury, and 3(c) to producing a counterfeit document. The conduct referred to in application note 4 is of a less serious nature, albeit still obstructive of justice. For example, 4(a) refers to providing a false name for an identification document at the time of arrest. Note 4(b) refers to making a false statement while not under oath to a law enforcement officer, and 4(c) refers to providing incomplete or misleading information, not amounting to a material falsehood.
Moreover, by its plain language, application note 3(e) does not apply. Application note 3(e) refers to a person who escapes or attempts to escape from custody before trial. Ms. Italiano was not in custody -- she was out on bail, she failed to comply with her bail conditions, and she became a fugitive. Nonetheless, she did not "escape" from "custody."
I therefore conclude that application note 3(e) is not descriptive of Ms. Italiano's conduct, that her offense level should not be enhanced for the obstruction of justice, and that her conduct is more in keeping with that described in application note 4(d), section 3C1.1. In other words, it is conduct that can be sanctioned by sentencing within the guideline range.
Paragraph 25 sets forth the probation officer's reasons for not reducing the offense level. This failure to reduce is based upon the probation officer's conclusion that enhancement for obstruction of justice was proper. As I have just concluded, enhancement for Ms. Italiano's obstructive behavior would be improper. It follows that the offense level should be reduced by two for the acceptance of responsibility, it being admitted that in all other respects she would qualify for the reduction of two levels.
In summary, I conclude that the defendant's offense level should be computed as follows:
Offense level 26
Adjustment for role in offense 0
Enhancement for gun-possession 0
Adjustment for obstruction of justice 0
Adjustment for acceptance of responsibility -2
The pre-sentence report should be corrected accordingly.
An order follows.
AND NOW, this 24th day of September, 1992, the defendant's objections to the guideline-computations contained in the pre-sentence report are sustained in part and overruled in part:
1. The objection to the probation officer's offense- level computation in paragraph 19 of the pre-sentence report is overruled.
2. The objection to the probation officer's failing to deduct four points from the total offense level because the defendant's role in the offense was minimal is overruled. (See section 3.31.2(a).
3. The objection to the probation officer's failing to deduct two points from the total offense level because the defendant was a minor participant is overruled. (See Section 3B1.2(b).
4. The objection to paragraph 20 of the pre-sentence report, which refers to section 2D1.1(b)(1) and provides for enhancement for the possession of a dangerous weapon is sustained.
5. The objection to paragraph 23 of the pre-sentence report, which refers to section 3C1.1 and provides for enhancement for obstruction of justice is sustained.
6. The objection to paragraph 25 of the pre-sentence report, which refers to section 3E1.1 but fails to adjust for acceptance of responsibility is sustained.
It is further ordered that the total offense level as set forth in paragraph 26 of the pre-sentence report shall be reduced by six points.
BY THE COURT:
J. WILLIAM DITTER