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.
Before: Nygaard and Weis, Circuit Judges, and
IRENAS,*fn1 District Judge.
The opinion of the court was delivered by: 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.
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 ...