The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
RULING RE APPLICATION OF OBSTRUCTION OF JUSTICE ENHANCEMENT IN SENTENCING
A sentencing evidentiary hearing was held on August 30, 2012. The evidentiary hearing concerned the government's contention that Defendant Scott James' July 6, 2012 Sentencing Memorandum, and James' handwritten letter attached thereto (ECF No. 37), contained falsehoods.
On July 20, 2012, the government filed a Reply to James' July 6th Sentencing Memorandum and letter, in which it argues James lied to the Court in claiming: "he (1) has lived a 'law-abiding life' since his release in 1998; (2) maintained 'gainful employment as a physician's assistant'; and (3) 'presents a very low probability of future criminal conduct.'" (ECF No. 40, 1:19-25.) The government contends that contrary to James' representations, "(1) defendant has committed innumerable crimes since his release; (2) his claims of employment are false and/or based on fraud; and (3) . . . defendant would continue to evade the law through fraud and identity theft." Id. at 1:24-2:1.
After reviewing the government's July 20th filing, the following Rule 32(h) Notice issued:
The parties are notified under Rule 32(h) of the Federal Rules of Criminal Procedure that the Court "may depart from the applicable sentencing range" and/or increase Defendant's offense level based upon the alleged misstatements contained in Defendant's handwritten letter filed in support of his Sentencing Memorandum (ECF No. 37-1). Application of Sentencing Guideline 3C1.1 (Obstruction of Justice) and/or the corresponding unavailability of Sentencing Guideline 3E1.1 (Acceptance of Responsibility) are being considered in connection with the referenced alleged misstatements. (ECF No. 45.)
James filed a response to the Rule 32 Notice on August 8th, in which he argues "application of U.S.S.G. § 3C1.1 and/or unavailability of U.S.S.G. § 3E1.1, amount to collateral issues wholly unrelated to the instant offense" and should not be used to depart upward in this case. (ECF No. 47, 2:15-24.) James also argues "the evidence to which the government points has no materiality . . . because 'the issue under determination,' the charged offense, has been resolved by means of Mr. James' unconditional guilty plea[,]" and "[t]he Court should adjust Mr. James' guideline range downward for acceptance of responsibility." Id. at 6:5-8, 7:4-5.
The government filed a reply to James' response on August 9th, in which it states, inter alia:
Here, defendant wrote in his own hand a letter asking the Court for a lower sentence based on his 'exemplary record,' his professional accomplishments, and service to his country. By his own attempt to get a lower sentence through these lies, defendant renders his statements material and thus subject to the obstruction adjustment. (ECF No. 48, 4:6-11.) Further, the government rejoins:
Based on defendant's lies to the Court and the corresponding necessity to investigate these lies, the government does not move for the third point of acceptance of responsibility under subsection (b). Specifically, defendant's representations have caused the government to contact various businesses and institutions, who have all confirmed that the statements in defendant's letter (filed July 6, 2012) are false.
At the August 30th evidentiary hearing, the government presented evidence through the testimony of Federal Bureau of Investigation ("FBI") Special Agent Brian Toy, who investigated statements James made in his July 6th handwritten letter. The government also moved for admission of the documents filed as pages 7 through 15 of ECF No. 40-1. The documents were offered in part to disprove statements in James' July 6th handwritten letter. Defendant's objection to the admission of this evidence was overruled. See United States v. Schwindt, 378 Fed. Appx. 721, 723 (9th Cir. 2010) ("Hearsay testimony may be considered [in sentencing]. . . as long as the information has sufficient indicia of reliability to support its probable accuracy."). The Court realized after the hearing that what the government moved into evidence is sealed, but a redacted version of the evidence has been filed on the public docket as ECF No. 42-1. Therefore, pages 7 through 15 of the redacted version (ECF No. 42-1) are substituted in place of the sealed, unredacted version (ECF No. 40-1).
Ultimately, what was at issue at the August 30th evidentiary hearing were James' representations in his July 6, 2012 letter that he was the "Dean of Medicine" at College America and Kaplan University and that his "record for the past twenty-four (24) [years] has been exemplary." See ECF No. 37-1 at pages 2-3.
The record evinces that James never held the title "Dean of Medicine." The FBI interviewed representatives of Kaplan and College America who denied James was ever employed as "Dean of Medicine." The FBI also found that James misrepresented to Kaplan in his employment application that he was not a convicted felon, and that he was in the military "Feb 1994-Mar. 1998," when he was in fact in prison at that time. See ECF No. 42-1, at 7, 13.
The FBI's investigation into James' background also revealed that he materially misrepresented to the Probation Officer that he is a licensed physician's assistant. See PSR at 10-11. Mr. Troy testified that he did not find in existence any physician's assistant licensing for James under any version ...