Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

MEMORANDUM^** 

Flordeliza Canlas Enriquez appeals her sentence, imposed following a guilty plea, for one count of mail fraud in violation of 18 U.S.C. § 1341 and one count of bank fraud in violation of 18 U.S.C. § 1344. Enriquez contends that the district court erred by (1) adjusting her base offense level under the United States Sentencing Guidelines (Guidelines) upward by two levels for abuse of a position of trust and failing to make the required factual findings in support of that adjustment, and (2) failing to adjust her offense level downward by two levels for acceptance of responsibility. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Enriquez contends that the district court erred by adjusting her offense level upward by two levels because she abused a position of trust within the meaning of U.S.S.G. Sec. 3B1.3. The government argues that she has waived review of this issue because she failed to object at sentencing to the district court's application of the adjustment. We agree.

Whether a defendant's position is one of trust within the meaning of the Guidelines is a legal question reviewed de novo. United States v. Hill, 915 F.2d 502, 505 (9th Cir. 1991). Enriquez suggests that we can therefore address the issue for the first time on appeal. Nevertheless, we have also held that a defendant's failure to object to the presentence report's recommendation of an upward adjustment constitutes agreement to the adjustment and waives the issue for appeal. United States v. Visman, 919 F.2d 1390, 1394 (9th Cir. 1990) (failure to object to adjustment for obstruction of justice constituted waiver.)

Here, Enriquez entered into a plea agreement which contemplated that she would receive a two-level upward adjustment under either section 3B1.1 (role in the offense) or section 3B1.3 (abuse of a position of trust).¹  The agreement also stated that she would receive a downward adjustment for acceptance of responsibility under section 3E1.1 if she cooperated truthfully with authorities. The presentence report recommended a two-level upward adjustment for abuse of trust as contemplated by the plea bargain, and also recommended an upward adjustment for obstruction of justice and a denial of the downward adjustment under section 3E1.1 due to Enriquez' repeated lies to the probation officer.

Enriquez contends that she preserved the issue by way of her initial written objections to the presentence report, which included an objection to the abuse of trust adjustment. Nevertheless, in her sentencing memorandum, filed after her written objections, she made clear that the abuse of trust adjustment would be at issue only if the district court did not follow the expectations of the parties as set out in the plea agreement.²  At the sentencing hearing, Enriquez stated that the only issues to be resolved before imposition of sentence were the adjustments for obstruction of justice and acceptance of responsibility. Therefore, she cannot rely on the written objections to preserve the abuse of trust issue for appeal.³ 

Similarly, although the district court was required to resolve clearly all disputed matters, Enriquez cannot fault its failure to address the abuse of trust adjustment at the sentencing hearing when she failed to dispute it. Cf. United States v. Rosales, 917 F.2d 1220, 1222 (9th Cir. 1990) (district court's adoption of the presentence report deemed a sufficient resolution of defendant's written and oral argument for downward adjustment).

We review a district court's findings regarding acceptance of responsibility for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990).

Under the Guidelines applicable after November 1, 1989, " [c]onduct resulting in an enhancement under Sec. 3C1.1 (Willfully Obstructing or Impeding Proceedings) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both Secs. 3C1.1 and 3E1.1 may apply." U.S.S.G. Sec. 3E1.1, comment. n. 4 (emphasis added). A defendant's persistent and purposeful attempts to obstruct justice may cast doubt on the sincerity of later expressions of remorse. See United States v. Lato, No. 90-10407, slip op. 6819, 6824-25 (9th Cir. June 3, 1991) (defendant's "purposeful and methodical" attempts to suborn perjury contributed to district court's finding that case was not "extraordinary"). In addition, a sentencing judge may take into account a defendant's attempts to minimize her role in the offense when finding that she has not accepted responsibility. See United States v. Smith, 905 F.2d 1296, 1301-02 (9th Cir. 1990) (denial of adjustment not clearly erroneous where defendant made inconsistent statements to police and probation officer and claimed that he participated in offense out of fear of a codefendant).

Here, Enriquez received an upward adjustment for obstruction of justice under section 3C1.1 because she repeatedly attempted to convince both the police and the probation officer that she had committed her offenses due to coercion from a fictitious blackmailer.⁴  On appeal, she does not contest the upward adjustment. Nevertheless, she contends that her immediate admission of the offense after her arrest, her eventual admission of her lies and her expression of remorse at the sentencing hearing constitute an "extraordinary case" warranting the downward adjustment under section 3E1.1.

The district court found that Enriquez' lies to the authorities were "an effort to manipulate the system" and that she had "shown nothing in the way of remorse for what she's done" (RT 11/3/89 at 83). This finding was not clearly erroneous. See Lato, No. 90-10407, slip op. at 6824-25.

AFFIRMED.