Unpublished Disposition, 911 F.2d 739 (9th Cir. 1990)

No. 89-30267.

United States Court of Appeals, Ninth Circuit.

Before BROWNING, ALARCON and KOZINSKI, Circuit Judges

MEMORANDUM^* 

Defendant Terrell Lynn King appeals her sentence for unarmed bank robbery. She contends the district court erred in imposing a two-point enhancement under the Sentencing Guidelines for obstruction of justice, failing to make a finding on a disputed issue as required by F.R.Crim.P. 32, and refusing to grant a two point sentence reduction for acceptance of responsibility. We affirm.

* Defendant first argues that the district court in imposing the enhancement for obstruction of justice impermissibly considered defendant's misrepresentation of her criminal history in response to a question by the probation officer which defendant's attorney had told the probation officer defendant would not answer. She raises 5th and 6th amendment objections and invokes the court's supervisory powers on the ground the probation officer interfered with the attorney-client relationship.

Defendant's 5th and 6th amendment arguments are raised for the first time on appeal. We therefore need not hear them. United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983). Unlike United States v. Hayden, 860 F.2d 1483, 1485 (9th Cir. 1988), the issue here involves a mixed question of law and fact: whether King's answers to probation officer's questions were involuntary or interfered with her right to counsel.¹ 

Defendant did argue before the district court that the probation officer's questioning interfered with the attorney-client privilege. The short answer is that asking a question the probation officer knows the defendant's attorney has advised the defendant not to answer, does not, without more, violate the attorney-client relationship. The defendant knew she was free to remain silent. She simply chose to disregard her attorney's advice.

II

Defendant claims the district court failed to make a finding resolving a conflict as to defendant's correct birthdate, thus violating Fed. R. Crim. P. 32(c) (3) (D). The district judge clearly signaled his intention to make findings. He then did so, stating that he overruled defense counsel's objections to the presentence report and "adopted the recommendations furnished by Ms. Zimmerman, specifically, as set forth in paragraphs 12, 13, 14, 15, 16 and 17 and thus that produces under paragraph 26 a two point upward adjustment." Paragraph 12 of the presentence report recites the defendant's statement that her date of birth was February 9, 1939; paragraph 14 recites the evidence establishing the correct birthdate of February 9, 1935. By adopting these paragraphs the district court could only have been making a finding as to the allegations. This conclusion is bolstered by inclusion in the record of the required "Findings of Fact Order." See United States v. Fernandez-Angulo, 897 F.2d 1514, 1517 (9th Cir. 1990) (en banc).

III

Defendant admits she furnished false information to the probation officer, an obstruction of justice under U.S.S.G. Sec. 3C1.1, comment. (n. 1(c)). She argues her action was not "willful" because the information related to long past mistakes for which she had already paid her debt to society. Defendant's argument in itself reflects a deliberate attempt to choose which elements of her past she would share with the probation officer. It is not the defendant's role to determine what information a sentencing judge will have and withhold the rest.

Defendant argues the falsehoods were not material to the sentencing determination. However, both the statute and the Guidelines provide that courts may consider any information on the background, character and conduct of the defendant. See 18 U.S.C. § 3661; see also United States v. Christman, 894 F.2d, 339, 342 (9th Cir. 1990). The fact that the probation officer could obtain the withheld information from other sources by normal investigatory means is irrelevant to materiality. On its face, section 3C1.1 encompasses attempts to obstruct or impede. In United States v. Baker, 894 F.2d 1083, 1084-85 (9th Cir. 1990) we held that misstatements were material even though the information could have been obtained readily from a "rap sheet."

IV

Defendant argues the district court should have allowed a two-point reduction of sentence for acceptance of responsibility despite the finding of obstruction of justice. We recently addressed that issue in United States v. Avila, No. 89-10390, slip op. 5899, 5905-06 (9th Cir. June 8, 1990), and held that the 1989 version of Application Note 4 could not affect the application of the 1987 version, which expressly precludes a downward adjustment for acceptance of responsibility in such circumstances.

The judgment of the district court is AFFIRMED.