Unpublished Disposition, 940 F.2d 1536 (9th Cir. 1991)

MEMORANDUM^** 

Jacques Doigny appeals his sentence, following conviction on a guilty plea, for securities and mail fraud in violation of 15 U.S.C. §§ 78j(b), 78ff and 18 U.S.C. § 1341. He contends that the district court erred by (1) failing to grant him a downward adjustment under the United States Sentencing Guidelines for acceptance of responsibility, (2) enhancing his Guidelines offense level for obstruction of justice, and (3) enhancing his Guidelines offense level for both abuse of a position of trust and exploitation of a vulnerable victim. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

The district court's determination of a defendant's acceptance of responsibility for his crime is entitled to great deference and we review it only for clear error. United States v. Smith, 905 F.2d 1296, 1301 (9th Cir. 1990). The district court is free to consider both pre- and post-guilty plea conduct to determine whether a defendant accepted responsibility for his actions. See United States v. Watt, 910 F.2d 587, 593 (9th Cir. 1990).

Here, although Doigny admitted deceiving his victims by misrepresenting that he had invested their money in annuity accounts, he continued to insist that he had no intent to defraud the victims when he diverted the money into his own business because he considered the business to be a sound investment. Under these circumstances, the district court committed no clear error by finding that Doigny had not accepted responsibility for his actions. See, e.g., United States v. Corley, 909 F.2d 359, 362 (9th Cir. 1990) (no error in district court's denial of adjustment to defendant who "was in a state of denial as to some of the reasons for his involvement" in criminal conduct and minimized his role in the offense).¹ 

We review de novo whether a particular act constitutes obstruction of justice, but a finding that the defendant committed an act obstructing justice is a factual finding reviewed for clear error. See United States v. Mondello, 927 F.2d 1463, 1465 (9th Cir. 1991). A defendant's failure to voluntarily surrender after he knew he was sought for arrest can support a finding that he obstructed justice, id. at 1466-67, as can use of an alias, United States v. Rodriguez-Macias, 914 F.2d 1204, 1205 (9th Cir. 1990) (per curiam). Although a defendant's spontaneous flight in the immediate aftermath of a crime should not be used to enhance the offense level, his deliberate decision to flee to avoid arrest can constitute obstruction of justice. See Mondello, 927 F.2d at 1466-67 (upholding adjustment where defendant fled three weeks after the crime had taken place and after being told he was a suspect).

Doigny concedes that several weeks after he became aware of the investigation into his conduct, he left Los Angeles and traveled throughout the southwestern United States, living under at least one alias, in an attempt to avoid arrest. The district court did not err by finding that this conduct constituted obstruction of justice. See id., 927 F.2d at 1466-67.

A two-level upward adjustment is appropriate if the defendant "knew or should have known that a victim of the offense was unusually vulnerable due to age...." U.S.S.G. Sec. 3A1.1; United States v. Boise, 916 F.2d 497, 506 (9th Cir. 1990) (noting that a victim can be found vulnerable solely on account of his age), cert. denied, 111 S. Ct. 2057 (1991). A defendant's failure to object to the presentence report's recommendation of an enhancement constitutes an agreement to the adjustment and waives the issue for appeal. See United States v. Visman, 919 F.2d 1390, 1394 (9th Cir. 1990) (waiver of objection to obstruction of justice enhancement). If the defendant fails to object to the district court's factual conclusions regarding his criminal activity, we will review them only for plain error. United States v. Carvajal, 905 F.2d 1292, 1296 (9th Cir. 1990).

Doigny received upward adjustments both for abuse of a position of trust, pursuant to U.S.S.G. Sec. 3B1.3, and for committing his offense against a vulnerable victim, pursuant to section 3A1.1. He argues that the district court should not have applied both adjustments to the same transaction. On appeal, he concedes that the district court properly adjusted his offense level for abuse of a position of trust, but contends that the vulnerable victim adjustment was erroneous. At the sentencing hearing, however, he took the opposite position and conceded the vulnerable victim adjustment while contesting the abuse of trust adjustment. Consequently, the district court had no opportunity to address the factual argument he raises now.

The Guidelines do not indicate that application of both adjustments to the same transaction is inappropriate. See generally U.S.S.G. Secs. 3A1.1, 3B1.3. Doigny concedes that he abused a position of trust to commit his offenses. He did not object to the district court's factual finding that two of his victims, aged 84 and 101 years at the time of sentencing, were unusually vulnerable due to advanced age. We find no plain error in the district court's conclusion. See Boise, 916 F.2d at 506.

AFFIRMED.