USCA1 Opinion

August 27, 1992

[NOT FOR PUBLICATION]

___________________
No. 92-1220

UNITED STATES,
Appellee,
v.
ISAO ISADORUS IMA,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
___________________
Before
Torruella, Cyr, and Stahl,
Circuit Judges.
______________
___________________

Stephen H. Mackenzie on brief for appellant.

____________________
Richard S. Cohen, United States Attorney, Richard W. Murphy,
________________
_________________
Assistant United States Attorney and Margaret D. McGaughey,
______________________
Assistant United States Attorney, on brief for appellee.
__________________
__________________

Per Curiam.
___________
guilty
the

The

to one count of

appellant, Isao

Isadorus Ima,

violating 8 U.S.C.

pled

1326, entering

United States after having been deported.

His appeal is

addressed solely to the district court's sentencing decision,

specifically to the court's adding

a 2 level enhancement for

obstruction of justice and declining to subtract 2 levels for

acceptance of responsibility.
The base offense
1326 is 8.

U.S.S.G.

level for
2L1.2(a).1

a violation of

8 U.S.C.

The district court

found

that Ima had obstructed justice by providing materially false

information to the probation officer, in an attempt to affect

the sentence

ultimately imposed,

officer's preparation of the

therefore,

pursuant

to

during the course

presentence report.

U.S.S.G.

3C1.1,2

concluded

that

Ima was

not

entitled

The court,

increased

offense level by 2 to a total offense level of 10.

also

of that

to

the

The court
a 2

level

____________________
1. This reference, as well as all subsequent references, are
to the guidelines in effect as of November 1991.
2. "If the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice during the investigation, prosecution, or sentencing
of the instant offense, increase the offense level by 2
levels." U.S.S.G.
3C1.1.
Among the examples of the types of conduct to which this
enhancement
applies,
the
guideline
commentary
lists
"providing
materially false information to a probation
officer in respect to a presentence or other investigation
for the court." U.S.S.G.
3C1.1, comment. (n.3(h)).
Material
information, as used
in
3C1.1, means
information "that, if believed, would tend to influence or
affect the issue under determination."
U.S.S.G.
3C1.1,
comment. (n.5).
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downward adjustment for

resulting
in

acceptance of

applicable guideline range

criminal history

category I,

responsibility.

The

for someone, like Ima,

is 6-12

months.

sentenced to an 8 month term of imprisonment.

Ima was

As an initial matter,
appeal

is

expected

moot

because

to terminate on

the government contends that this

Ima's term
or about May

subject to immediate deportation

that

date has now

whether, in fact,
neither

of

does he contest

27, 1992 and

upon his release.

passed, counsel for

Ima has

incarceration

Ima has

been released

he was
Although

not told us

and deported,

either of these

was

but

assumptions, so we

will accept them as accurate.

Counsel contends,
moot

because

reasoning

runs

of

nonetheless, that this appeal

potential collateral
as

follows:

The

is not

consequences.

collateral

His

consequences

pertain to a potentially increased sentence if Ima should, in

the

future, once again,

again,

face

federal

enter the
criminal

sentence, presently at issue,

of

at least 60

United States

sentencing.

and, once

Because

the

was a sentence of imprisonment

days, this sentence would

be counted in any

future sentence, by adding 2 points to Ima's criminal history

category.
Ima's

See U.S.S.G.
___

arguments on

increasing

the

4A1.1(b).

If, however,

merits, i.e.,

the offense level by

there

we accept

was error

2 (from offense

in

level 8 to

level 10) for obstruction of justice as well as in failing to

-3-

decrease the
level 6)

offense level by

for

acceptance of

sentencing guideline
0-6

months.

court

guideline)
could

to

not be

responsibility, the

remand in

resentence

of less

offense level

range for the instant

If upon

were

2 (from

than

counted

to

60 days,

applicable

offense would be

this appeal,

Ima

the district

term

(within

this corrected

in determining

8 to

this

sentence

his criminal

history

category in any future sentence.

We pass
these

an initial

multiple

contingencies

collateral consequences
negate mootness.

question whether the

too

occurring

likelihood of

make

speculative and

the

attenuated

Because there could be a benefit

corrected

to

to Ima in

having

his sentence

served

that sentence, we decline to find the appeal moot and

we proceed to the merits.

even though

claimed

he already

United States v. Dickey,

_____________
______

has

924 F.2d

836, 838 (9th Cir.) (appeal is not moot because appellant was
sentenced to a term of imprisonment in

excess of 60 days and

any possible

the guidelines

future sentencing

result in an increase
instead

under

of criminal history score by

of single point he

would have received

would

2 points

had he been

sentenced to probation), cert. denied, 112 S. Ct. 383 (1991);

____________
United States v.
______________

Mares-Molina, 913 F.2d

____________

770, 773

n.3 (9th

Cir.

1990) (similar); United States v. Montenegro-Rojo, 908

______________
_______________

F.2d 425, 431 n.8 (9th Cir. 1990) (similar).

-4-

We flesh out
made.

In the

the context in

course of the

on

business

corporation,

he entered the United States

to consult with his lawyers

and immigration
U.S. Japan

are

presentence investigation, Ima

told the probation officer that

on September 1, 1991

which Ima's arguments

matters.

Hitech Hitouch

He said

and others
that

his

Research Institute,

was legally registered in the United States and was set up to

invest up to
States

$500 million

in

cooperation

institutions.
encouraged

of Japanese funds
with

Bowdoin

He said that "the

him to

come

to the

in the

College

United

and

other

people concerned" strongly

United

States as

soon

as

possible.
He also claimed

that he was

Embassy in Tokyo" that every

"informed by the

American

entrepreneur, who, on and after

October

1, 1991,

brings $1

million or

more to

the United

States

and thereby creates at least ten jobs, would be given

United

States citizenship.

lawyers about his entire

He wanted

to consult

with his

family immigrating here using a

$5

million start-up fund.

By

this

exposition,

Ima

sought to

entered the United

States in

which

in following

would occur

lawful entry.
went

to Nomura

explain

haste and to

that

avoid the

the procedure

he

delay

required for

Ima then explained that, on September 13th, he

International

Securities in

York and picked up three checks,

Manhattan, New

totally $5 million.

On his

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return

trip to

Portland, Maine,

however, he

was in

a car

accident in Connecticut, and the checks blew away.

In investigating these claims, the probation office
advised by

Peter Chepucavage, the general

International

Securities,

that,

although

was

counsel at Nomura
Ima

was

there

briefly on September 13th, there is "no record of significant

activity during Mr. Ima's visit or any indication that checks

were

issued."

Further,

the

Ima's car

accident reported

documents

strewn

about

police

officer investigating

that there

at

the

were

accident

indication

that documents were

lost.

but intact

and towed from the

scene.

no papers
scene

The

or

or
any

car was damaged,

Ima and

his wife had

access to their vehicle after the accident and removed

their

many belongings from the car.

In

finding

concluded that
officer
the

an

obstruction

the story

provided by

concerning his intended

securing and

of

subsequent

the

Ima to the

court

probation

investment undertakings and

loss of

checks was materially false.

justice,

$5

million worth

The court also

of

concluded that

this obstruction of justice negated Ima's claim of acceptance

of

responsibility.

("Conduct

resulting

(Obstructing
ordinarily

or

See
___

U.S.S.G.

in

an

3E1.1, comment.

enhancement

under

(n.4)
3C1.1

Impeding

the

Administration

of

Justice)

indicates that

the

defendant has

not

accepted

responsibility for his criminal conduct").

-6-

On appeal,
(1)

Ima contends

in assessing the

information
assessing
obstruction

2 level upward

provided
a

2
of

that the district

was

not

downward

justice

finding

demonstrated sincere

adjustment because the

material3

level

and

adjustment
was

contrition and

court erred

(2)

in

not

because

the

erroneous

remorse.

We

and

he

need only

consider the first contention.

The

standard of review

support

an enhancement

materially
views.

(4th Cir.

pursuant

false information

Compare
_______

United States
_____________

1991) (the

of a finding

is

to

of materiality to
materiality

3C1.1 for

the subject

v. Hicks, 948
_____

question of

of

providing
disparate

F.2d 877,

materiality is

886

a factual

determination subject to the clearly erroneous standard) with

____
United States v. Rodriguez, 943 F.2d 215, 218 (2d Cir. 1991)
______________
_________
(the appropriate interpretation of the definition of the word
"material" is a
novo

matter of legal interpretation subject to de

review); see also

________

United States v.
_____________

Cusumano, 943 F.2d

________

305, 315 (3d Cir. 1991) (assuming, without deciding, that the
____________________
3. We summarily reject Ima's additional claim that the
burden of showing the
falsity of the information was
inappropriately placed on him.
The reported statements of
Mr. Chepucavage and of the police officer investigating Ima's
automobile
accident belie
Ima's
contention that
the
government failed to put forth evidence of the untruthfulness
of his statements.
Likewise, we summarily reject Ima's contention that the
district court failed to determine that he intended to

obstruct justice by making the statements at issue.

The
court expressly rejected Ima's assertion of a language
barrier and concluded that his statements were an obvious
effort to affect his criminal sentence.
-7-

standard

of review is plenary), cert. denied, 112 S. Ct. 881

____________

(1992); cf. United States v. Moreno, 947 F.2d 7, 10 (1st Cir.

___ _____________
______
1991) (whether conduct

is encompassed within the

3C1.1 is subject to de novo review).

deciding, that our review
novo,

scope of

We will assume, without

of a finding of materiality

for even pursuant to this

is de

standard, more favorable to

Ima, there was no error.

A probation officer conducts a presentence investigation
to

aid the

sentence.

court

in its

determination

Information that,

if

of an

believed,

appropriate

would tend

to

influence or affect the

issue under determination, i.e., the

appropriate

is

sentence,

comment. (n.5);

material.

see also United States v.

________ _____________

164, 166-67 (11th Cir. 1992)

not

affect

the criminal

U.S.S.G.

3C1.1,

Dedeker, 961 F.2d

_______

(a past conviction, which would

history

category,

is nonetheless

material to the
failure to

choice of a sentence within a range and thus

disclose this conviction

pursuant to

3C1.1).

Ima's

of why

story

designed

of

he

entered the

country

that

illegally was

of illegal entry

in the most

light and to gain the court's sympathy in the hope

a lower

might

We agree with the district court

to place his conduct

favorable

can warrant enhancement

sentence within

well impose

although entering
impression of

the guideline

a shorter

sentence on

range.

a defendant

unlawfully, did so because

urgency in pursuit of

A court
who,

of a misguided

legitimate business and

-8-

family

concerns,

misapprehension

to a

defendant with

or benign intentions.

district court's
information

as compared

finding that Ima

as described by

no such

There was no error in

provided materially false

3C1.1 and imposing

a 2 level

enhancement for obstruction of justice.

We note that
depends on our
merits.

We

Ima's claim

acceptance of

have rejected

that his appeal

both of his

is not

arguments on

his contention that

the 2

moot
the
level

increase

(from

justice
other

level

was error.

8 to

level

10)

for

obstruction of

Consequently, even were we to accept his

contention, that he should

have been given

a 2 level

reduction for acceptance of responsibility, the offense level

would simply
of 8.

revert back to the original

Ima gains no benefit in only having his offense level

reduced to level 8.
is

2-8 months.

necessarily

future

Any sentence imposed within this range would

again

face

of

determination.

imprisonment of at

We

criminal

the

least 60 days.

We,

therefore,

add only

need

2 comments.

refusal to award a 2

of responsibility, is, in

sentencing,

acceptance

obstruction of justice, which was

court's

level 8

in the criminal history category, should Ima in

irrespective

argument.

The guideline range for offense

be a term of

The increase
the

base offense level

of

would

occur

responsibility

not
First,

address
a finding

that
of

the basis for the district

level reduction for acceptance

the usual case, sufficient support

-9-

for such refusal.

United States v. Aymelek, 926

_____________
_______

F.2d 64, 69

(1st Cir. 1991);

the district
illegal

purposes,

was

of its

false

his

not

Second,

explanation for his

clearly

erroneous

obstruction

is inconsistent

and,

of justice

with acceptance

See United States v. DeFelippis,

___ ______________
__________

444, 447 (7th Cir. 1991)

to

is

materiality for

such conduct

responsibility.

as

3E1.1, comment. (n.4).

court's finding that Ima's

entry

independent

U.S.S.G.

of

950 F.2d

(defendant's false characterization

employment status,

while

not

material

to the

presentence

investigation, evidenced a continuing attempt to

rationalize

and

minimize

his

conduct

and

supported

rejection of a reduction for acceptance of responsibility).

We summarily affirm.
_______

Loc. R. 27.1

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