USCA1 Opinion

October 15, 1992

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 92-1639
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN L. ST. CYR,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
_____________
Aldrich, Senior Circuit Judge,
____________________
and Boyle,* District Judge.
______________
_________________________
Jeffrey D. Clements, with whom

Jensen Baird Gardner & Henry

___________________
____________________________
was on brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
______________________
with whom Richard S. Cohen, United States Attorney, and Jonathan
________________
________
R. Chapman, Assistant United States Attorney, were on brief, for
__________
appellee.
_________________________

_________________________
___________
*Chief Judge, United States District
Rhode Island, sitting by designation.

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________

defendant-appellant

attempt.

Confronted

criminality, St.
stolen

Cyr

John L.

with

District of

After twice visiting a famed New

England clothier and successfully

cash,

Court for the

the

pled guilty

exchanging stolen sweaters for

St.

Cyr

botched his

irrefragable
to two

threads

counts of

third
of

his

possessing

property (each count representing a successful exchange).

Although the two

offenses occurred only

four months apart,

federal sentencing guidelines intervened.1

pre-guidelines
concurrent

sentence on

guideline-driven

the first
sentence

the

Appellant received a

count (two
on

the

years) and
second

count

(fourteen months).
year sentence

He will be eligible

after approximately eight

for parole on the

months.

two-

No parole

is

possible on the other sentence.

St.
entirety.

Cyr

appeals the

We affirm

after studying

court, we vacate

judgment in
count.

court's construction of

guideline never
the sentence

before

its

However,
U.S.S.G.

interpreted

imposed on the

remand for resentencing on that count.

I.
I.

court's

with respect to the first

the district

2B1.2(b)(4)(A),

lower

by this

second count

and

The yarn follows.

FACTS
FACTS
In

labelled

late 1986, thieves snatched a

sweaters

and dresses

bound

for

trailer load of pretwo retail

clothing

____________________

1All references herein are to the sentencing guidelines in

effect on the date appellant was sentenced, May 21, 1992.
See
___
United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir.
_____________
__________
1990) ("Barring any ex post facto problem, a defendant is to be
_____________
punished according to the guidelines in effect at the time of
sentencing.") (citing 18 U.S.C.
3553(a)(4)).
2

stores.
By

The trailer soon reappeared

then, it was under

Flaherty sold most of

of

in Methuen, Massachusetts.

the apparent control

of Thomas Flaherty.

the loot to Francis McKay,

the proprietor

A & M Auto Wholesalers, Lawrence, Massachusetts (and, in that

capacity, St. Cyr's employer).

In
from

time, appellant

McKay.2

groups and

He divided

the sweaters into

"returned" them

to an affected

Co., requesting that

received

$399.20

sweaters.

bought twenty-two

refunds

retailer, L.L.

for

the

first

price.
two

Bean

Appellant
batches

of

On his third attempt, a store employee refused to give

him cash and asked him for

a mailing address.

address and confronted St. Cyr.

II.
II.

three roughly equal

Bean "refund" the retail

in

stolen sweaters

Police traced the

He confessed.

THE SENTENCE ON COUNT I

THE SENTENCE ON COUNT I
In

what

amounts

to

passing

suggests that his sentence on count

and should be vacated.

reference,

St.

Cyr

I was "plainly unreasonable"

We refuse to give

this point substantive

consideration for two reasons.

First, Congress created appellate

jurisdiction

"plainly

with respect

to

unreasonable"

criminal

sentences on December 7, 1987, and made the grant of jurisdiction

applicable

only to criminal acts committed after that date.

Sentencing Act of
1266,
Count I

1987, Pub.

1272 (1987), codified

________
targets St. Cyr's

____________________

L. No.
at 18
__

100-182,
U.S.C.

first trip to

26, 101

See
___

Stat.

3742(a)(4) (1988).
L.L. Bean.

That trip

2There is some confusion in the record as to whether St. Cyr

bought the sweaters on two or three different occasions.
3

took

place in October of

1987.

Hence,

section 3742(a)(4) does

not avail him here.

Second, appellant
as to

why the sentence

otherwise

defective.

has offered no

imposed on count

meaningful rationale
I was unreasonable

or

It is settled in this circuit that "issues

adverted to on appeal

in a perfunctory manner, unaccompanied

by

some developed argumentation, are deemed to have been abandoned."

Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990); accord
____
______________
______
United States v.
______________

Zannino,
_______

denied, 494 U.S. 1082

______

895 F.2d

(1990).

1,

17 (1st

Cir.),

That principle is

cert.
_____

fully apposite

here.
III.
III.

THE SENTENCE ON COUNT II

THE SENTENCE ON COUNT II
With

(BOL)

reference to

applicable to

U.S.S.G.

count

the offense

2B1.2(a).

level because the value

II, the

base offense

of conviction

was four.

level

See
___

The district court elevated the BOL by one

of the twenty-two sweaters

was $572.70.

See
___

U.S.S.G.

level

increase

$1000).

for goods

2B1.2(b)(1) (directing

worth more

than

$100 but

a one-

less than

The court added four more levels because St. Cyr was "in

the business of
U.S.S.G.

2B1.1(b)(1)(B),

receiving and selling

2B1.2(b)(4)(A).

stolen property . .

The court explained that

. ."

it utilized

the four-level enhancement because

it "infer[red] that from [St.

Cyr's]

manner in which

willingness and [the] easy

participation in this [affair]

in
two

. . . he was a person predisposed

buying and selling stolen property."

offsetting

he came into

adjustments.

It

Finally, the court made

went

up

two

levels

for

obstruction of justice, see U.S.S.G.

___
for role in the offense.

See U.S.S.G.
___

3C1.1, and down two levels

3B1.2(b) (adjustment for

minor participation).
Given
resulted in a
5, Pt.

St. Cyr's

past,

these

guideline range of 8-14 months.

A (sentencing table)

category III).

checkered

(offense level 9;

calculations

See U.S.S.G. Ch.

___

criminal history

The judge imposed the maximum authorized sentence

within the range.

On appeal, St. Cyr challenges

enhancement for being

"in the business of

the four-level

receiving and selling

stolen property" and the two-level enhancement for obstruction of

justice.
A.
A.

Standard of Review.
Standard of Review.
__________________

Appellate review of
the sentencing

guidelines is

First, the court of

relevant guideline to
case.

a district court's

application of

ordinarily a dichotomous

appeals determines de novo the

__ ____
ascertain whether

See, e.g., United States

___ ____ _____________

it applies

process.

reach of the
in a

given

v. Tardiff, 969 F.2d 1283, 1289

_______

(1st Cir. 1992); United States v. Connell, 960 F.2d 191, 197 (1st
_____________
_______
Cir.

1992).

Once

the

court

guideline's meaning and scope,

factfinding

of

appeals

has

See United States v. David,

___ ______________
_____

940 F.2d 722, 739 (1st Cir. 1991), cert. denied, 112
_____ ______
18 U.S.C.

the

it reviews the sentencing court's

only for clear error.

(1992); see also

___ ____

defined

3742(e) (1988).

S. Ct. 2301

Accordingly,

we

cede no deference to the district court's legal conclusion that a

_____
defendant's

inferred

predisposition

toward fencing

activities

brings him within the ambit of section 2B1.2(b)(4)(A).3

B.
B.
1.
1.

The "Fencing Business" Requirement.

The "Fencing Business" Requirement.
____________________________________

guideline

for

"receiving,

transmitting, or
(excess

possessing stolen property,"

directs the

in a

limns one
"the

transporting,

capitalization omitted), starts at

guideline
level

The Four-Level Enhancement.

The Four-Level Enhancement.
__________________________

variety

district

of circumstances.

was

committed by

receiving and selling

Commission explains

property

is

stolen

likely

to

criminality and the extent to which

other

crimes."

U.S.S.G.

any other upward adjustment

government

bears

the

in
. ."

The

offense

the business
The

of

Sentencing

call the

on the basis that, when

for resale,

underrepresent

four.

2B1.2(b)(4)(A)

which we shall

enhancement
property

a BOL of

2B1.2

four-level increase if

person

this enhancement

U.S.S.G.

Section

stolen property . .

"in-the-business" or "ITB"
receive

transferring,

increase the

such circumstance, mandating a

offense

persons

court to

The master

the

"the
scope

amount
of

of

their

they encourage or facilitate

2B1.2, comment. (backg'd).

As with

under the sentencing guidelines, the

burden

of

enhancement applies in a given case.

establishing

that

the

ITB

See, e.g., United States v.

___ ____ _____________

Sklar, 920 F.2d 107, 110 (1st Cir. 1990); United States v. Unger,
_____
_____________
_____
915 F.2d 759, 761 (1st Cir. 1990), cert. denied, 111
_____ ______

S. Ct. 1005

____________________
3The government suggests that

United States v. Russell, 913

_____________
_______
F.2d 1288 (8th Cir. 1990), cert. denied, 111 S. Ct. 1687 (1991),
_____ ______
imports a more deferential standard of review.
We reject this
suggestion. While the Russell court was admittedly hazy about
_______
the precise standard of review, the court's basic holding was
that "factual findings . . . will not be upset unless clearly
_______ ________
erroneous." Id. at 1294 (emphasis supplied).
___
6

(1991).
There is a dearth of
section

2B1.2(b)(4)(A)

and the

meaning of the pivotal phrase:

authority concerning the scope of

guidelines

are

"in the business

have never spoken to section 2B1.2(b)(4)(A).

silent on

the

of . . . ."

We

Courts outside our

circuit have dealt with the provision sparingly.

The government urges that
background

commentary,

quoted

we need not look

supra
_____

p.

6,

to

beyond the
resolve

the

essential

meaning

commentary's

of

motivating

the

section

purpose

business

causes greater community

criminal

individual.

one

thing,

underrepresentation

An

underworld

the commentary

leaves more

literally, it proves too much.

facilitation
of criminal

apparent.

The

blight than an intermittently

Nonetheless,

specific issues unresolved; taken

For

is

2B1.2(b)(4)(A).

of

other

activity

crime

are probably

whenever stolen property is bought or sold.

and

present

Like any market, the

black market's efficiency is generally proportional to the number

of buyers

and sellers that enter

it.

Thus,

even purchasers of

stolen goods who never sell and sellers of stolen goods who never
purchase can

strengthen the black market

and thereby facilitate

other crime.
For another thing, individuals convicted of any crime
not just those
to

have

who deal in stolen property

committed or

supported

other,

are often presumed

non-charged, offenses.

Indeed, this presumption is thought to be so

Evid.

404(b)

prohibits

the

strong that Fed. R.

introduction into

evidence

of

defendant's prior

acts to show his criminal

predisposition.

It

is

almost always possible to argue that

defendant
entire

has been

criminal

subculture

convicted
career

or

trafficking in stolen

is likely
his

of criminality.

the conduct for which a

to underrepresent

contribution

There

is no

property, per
___

to

general

sound basis

se, can be
__

his

on which

singled out

in

this respect.
Finally,

and

perhaps

senseless to presume that

same

conduct

as the

Commission wished to

most

tellingly,

it

would

be

the enhancement identifies exactly the

base offense

itself.

If

the Sentencing

ensure stiffer sentences for

all those who

receive and sell stolen property, it could have simply raised the
base

offense level.

beyond simply
activity

There

facilitation

must, then, be

a limiting principle

or underrepresentation

of

criminal

some smaller subclass to which the enhancement refers.

We think this is what the Sentencing Commission intended.

To state this
the end result.

conclusion does not, however,

few courts have suggested the

determine

possibility of

restricting the guideline to so-called professional fences.

e.g.,
____
1990).

United States
_____________

v. Esquivel,
________

919 F.2d

957, 960

See,
___

(5th Cir.

Notwithstanding that professional fences are essentially

black

market

speculators who

ease

the buying

stolen

goods

by simplifying

market

entrance

stolen

property,

necessarily
fence" is as

a step

we do

not believe

forward.

chancy as

that

Defining

and

selling of

for supplies

focusing on

the term

defining the language

of

them is

"professional

of the

guideline

itself.

We conclude that there is no bright line that separates

defendants
property
mulling
judge

who

are

"in

the

from those

who

are not

whether to
must

regularity
order

impose the

undertake

totality of

business"

so

dealing in

engaged.

the circumstances,

of

approach,

weighing

the

on the

defendant's operation,

defendant is "in

in

the sentencing

with particular emphasis

and sophistication

stolen

Therefore,

ITB enhancement,

case-by-case

to determine whether a

of

in

the business" of

receiving and selling stolen property.

We think

this

assessment fits

harmoniously with

the

Commission's likely rationale and with the decisions of those few

circuit

courts

that

2B1.2(b)(4)(A).
these courts,
defendant
stolen

have

addressed

Despite the

property

engaged in
by

the

surveying

meaning

differences in analytic

either implicitly

was

the

or explicitly, judge
business of
the

studying the permissible inferences

overall

buying

of

section

approach,

whether a

and selling

circumstances

and

that can be drawn therefrom.

See, e.g., United States v. Connor, 950 F.2d 1267, 1275 (7th Cir.
___ ____ _____________
______

1991) (stressing
determination);

the importance
Esquivel,
________

characteristics of

of past

919

F.2d

at

criminality to
960

an ITB

(assessing

defendant's fencing operation and

the

finding it

sufficiently businesslike); United States v. Braslawsky, 913 F.2d

_____________
__________
466, 466 (7th Cir.
the

1990) (finding that the defendant was not "in

business" where

he sold

only goods

that he,

himself, had

Under the

approach we

stolen).
9

2.
2.
endorse

Pertinent Considerations.
Pertinent Considerations.
________________________

today,

circumstances

a
in

district
its

court

effort

to

should

weigh

determine

enhancement applies in a particular instance.

number

of

the

ITB

whether

The most important

factor is likely to be the regularity of the defendant's dealings

in stolen
we

do not

dominant
activities
business.

merchandise.
suggest
source of

In searching for evidence of regularity,

that selling
a

stolen

defendant's income

become sufficiently

prominent

property must
before his
to be

be

the

felonious

regarded as

See, e.g., Esquivel, 919 F.2d at 960 & n.4 (concluding

___ ____ ________

that

an ITB

earned 25%

enhancement
of his total

Nevertheless,

property

a defendant

selling stolen

who

property).

income generated through fencing activities,

defendant's past

continuing

income from

for

a sentencing court can certainly consider evidence

about the amount of

the

was appropriate

or

activities, his

expanding the

handled.

Where

demonstrated interest

operation,

there is

no

and the

value

in

of the

indication either

of a

pattern of dealing in stolen property or of a developed operation

that promises

such consistency for the future,

unlikely to be "in the

(noting in
engaged

business."

dictum that only

in

fencing will
cf. Esquivel,
___ ________
requirement

merit a

See Connor, 950 F.2d

___ ______

those persons "who

significant illegal

the defendant is

conduct

which

at 1275

have previously
is similar"

section 2B1.2(b)(4)(A) enhancement).

But
___

919 F.2d at 957 (implicitly rejecting a regularity

in finding

a new,

but very

sophisticated, fencing

operation to be a business).
10

We

to

envision

useful

parallel

between

U.S.S.G.

2B1.2(b)(4)(A)

and

enhancement.

An

another
individual

upward adjustment in his

the

which

convicted of

allows

tax

. .

."

ITB

fraud rates

offense level if the individual

U.S.S.G.

applies to those people

advisers.
conduct

See id.,
___ ___
is

one

F.2d

comment.

universal

1319, 1327

2T1.4(b)(3).

The

who "regularly act" as tax

definitions of business.

(n.3).

an

is "in

thread

denied,
______

(7th

Cir.

489 U.S. 1067 (1989).

to the

RICO

in

virtually

legal

1988) (construing

the

phrase

1952), cert.
_____

v. Lignarolo, 770
_________

1984) (construing a

similar phrase in

statute, 18

1105 (1986);

F.2d

(9th

126

all

of

United States
_____________

denied, 476 U.S.

______
125,

preparers or

See, e.g., United States v. Muskovsky,

___ ____ _____________
_________

971, 979 (11th Cir.

respect

enhancement

Indeed, regularity

"business enterprise" in the Travel Act, 18 U.S.C.

F.2d

an

business of preparing or assisting in the preparation of tax

returns

863

guideline

Cir.

U.S.C.

1961-1968),

United States v.
_____________
1979)

(observing

Van Buren,
_________
that

cert.
_____

593

business

necessitates "activity . . . greater than the occasional sales").

In those contexts, courts have insisted that more than
casual,

isolated,

or sporadic activity be shown before a business is found

to exist.4
Citing Esquivel,
________

919 F.2d

957, the

government argues

____________________

4On several other occasions, the guidelines use the term

"business" without commenting on its meaning.
See, e.g.,

___
____
U.S.S.G.
2E3.1 (discussing defendant's engagement in a gambling
business); U.S.S.G.
2B6.1(b)(2) (discussing an enhancement for
being "in the business of receiving and selling" stolen motor
vehicles or parts).
11

that

regularity

condition

is

sufficient, but

for the ITB enhancement.

Esquivel, purchased

350

necessary,

In that case, the defendant,

of

stolen shoes.

to store the shoes, carrying a telephone pager so that

implemented

deliveryman.
961.

touch with him,

sale-by-consignment

He did not

The Fifth

Esquivel had

e.g.,
____

quickly

warehouse

could keep in

operation,

He

an

also

fencing

always

installed

his customers

elaborate

pairs

not

and the like.

system

and

that, regardless

a history of fencing activities,

sufficiently organized and complex

him to

operation

is

agree that
a second

He

Id. at
___

of whether

his operation was

that the district court could

be "in the

business" of

stolen goods for purposes of section 2B1.2(b)(4)(A).

We

hired

make casual or isolated sales.

Circuit concluded

supportably have found

renting

the sophistication
circumstance

that

of

selling

Id. at 960.
___

the defendant's

may itself

indicate

business

conduct.

fencing

business,

We can

easily imagine situations

although

very

much

in which a

business,

has

recently launched and therefore traces no historical pattern.

been

In

order to distinguish a new-to-the-business fence from an amateur,

however, the
for

government must at

regularity, say,

by

least offer a

showing that

meaningful proxy

the operation

crossed a

threshold of sophistication and commitment.

3.
3.
district

Applying the Criteria.

Applying the Criteria.
_____________________

court could

sophistication.
Cyr

not

On this sparse record, the

plausibly find

either regularity

or

The record is barren of any indication that St.

had conducted other fencing operations.

His three jaunts to

12

L.L.

Bean do not suggest

constitute

a business.

primitive:

he

system,

did not

he

regularity to the

had no

sizable inventory

By

token, his

elaborate communication

employ assistants,

of stolen goods.

been apprehended, he might

sweater-return

the same

scheme.

degree necessary to

he

operation was

or distribution

did not

Of course, had St.

have continued to ply his

At

maintain a

some point,

the scheme

Cyr not

fraudulent

might have

become

sufficiently

institutionalized

requirement.

But

possibility,

finding St.

to

here, the district court

Cyr

to be

conduct purposes, see U.S.S.G.

___
two sweaters that he

meet

the

ITB

largely negated this

responsible, for

relevant

1B1.3(a), only for those twenty-

actually purchased from McKay, not

for the

entire shipment of stolen merchandise.

We
government

will light
has

sufficient to
was engaged
that

St.

simply
show, by

no
not

had

produced

on

this cake.

quantum

any reasonable standard,

in a business.5
Cyr

more candles

In the

installed or

was

absence of
developing

of

The

evidence

that appellant

any indication
a

systematic

operation that would regularly fence stolen property, we find his

casual trafficking
the

in sweaters insufficient, in

circumstances, to

justify an

the totality of

enhancement under

U.S.S.G.

____________________

5The district court rested its determination that St. Cyr's

activities constituted a business on what the court saw as his
predisposition to deal in stolen property.
While we do not
dispute the court's conclusions anent St. Cyr's moral fiber (or
lack thereof), his predisposition, without more, is not legally
relevant to the appropriateness of a section 2B1.2(b)(4)(A)
enhancement.
Whether a defendant is engaged in business within
the meaning of the sentencing guidelines is a test of conduct,
not character.
13

2B1.2(b)(4)(A).
C.
C.

Obstruction of Justice.
Obstruction of Justice.
______________________

Appellant asserts
applied

a two-level

that the district

court incorrectly

enhancement for

obstruction of

the sentencing

range for count

route to establishing

justice en
II.

The

relevant guideline reads:

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.

conduct

warranted

because

he

The district
an

court

found that

upward adjustment

"provid[ed]

materially

under

false

appellant's

this

guideline

information

to

probation officer in respect to a presentence . . . investigation

for the court."
The

U.S.S.G.
pivotal

3C1.1, comment. (n.3(h)).

facts are

these.

Following St.

Cyr's

guilty plea, a probation officer interviewed him in the course of

compiling

the

criminal

presentence

record, St.

Cyr

larceny convictions that

inform the officer that

report.
did not

failure
resulted
report.

rectified,

to provide
in a

recounting

mention three

occurred in

1978.

He

the

prior

Massachusetts

to

a year earlier

Although these omissions were

officer

a complete record

substantial delay

his

also failed

he pled guilty less than

to having falsely uttered a check.

eventually

In

testified
of his

in completing

that

St.

Cyr's

prior convictions

the presentence

St. Cyr's

first argument is that

his omissions should

14

not be penalized because

government.

they caused no actual prejudice

to the

But, this protest overlooks the milieu in which the

omissions

occurred.

Presentence

ingredients of

the sentencing

administration

of

defendant

has

probation

officer to

the

process and,

criminal

justice

solemn obligation
ensure that

accurate information.

Providing

in

probation

officer

reports

to

be

the court

are

important

thus, vital to
system.

the

Hence,

forthcoming

with a

receives complete,

materially false information to

respect to

presentence

report

is

culpable and can constitute obstruction of justice even absent

showing

of actual prejudice.6

See United States v. Dedeker, 961

___ _____________
_______

F.2d 164, 167 (11th Cir. 1992); United States v. Baker, 894
_____________
_____

F.2d

1083, 1084 (9th Cir. 1990).

Relying on United States v. Tabares, 951
_____________
_______
Cir. 1992),
not

prove

appellant also
materiality.

asseverates that the

In

Tabares,
_______

F.2d 405 (1st

government did

a codefendant,

Ramirez,

relayed an inaccurate social security number in the course of the

presentence investigation.
for obstruction.
was

The district court went up two levels

We reversed.

no evidence

that Ramirez

security number.

Id. at 411.
___

Id. at 411-12.
___
willfully lied

We noted there
about his

We then theorized

social

that, even if

____________________

6For this reason, St. Cyr's repeated citation of cases

falling outside the ambit of Application Note 3(h) do not assist
his cause. Most of these authorities involve preconviction
statements made to law enforcement officers.
Such statements
invoke Application Note 3(g) and require a showing that the
falsehood "significantly obstructed or impeded the official
investigation or prosecution . . . ." U.S.S.G.
3C1.1, comment.
(n.3(g)). Application Note 3(h) contains no such requirement.
15

Ramirez had

prevaricated, his

the investigation

statement could not

in any material

way because Ramirez

using the same incorrect number for several years.

The

case at bar is

its

face.

See,
___

e.g.,
____

St. Cyr omitted was

U.S.S.G.

had been

Id.
___

easily distinguishable.

Tabares, the criminal history that

_______
on

have impeded

Unlike in

material

3C1.1, comment.

(n.5)

(defining "material . .
believed, would

tend

determination").

. information" as "information
to influence

or

affect the

issue

under

Under the guidelines, sentencing ranges rest in

substantial part upon a defendant's criminal history.

mind that

that, if

the test

of materiality

for purposes

Bearing in

of Application

Note 3(h) is not a stringent one, see, e.g., Dedeker, 961 F.2d at
___ ____ _______

167, we do not hesitate to hold that a defendant's concealment of

important
omission

information about
for

purposes of

United States v.
______________

his criminal
U.S.S.G.

Delgado, 936
_______

record is

3C1.1.

F.2d 303,

a material

See
___

id.; accord
___ ______

306 (7th

Cir. 1991),

cert. denied, 112 S. Ct. 972 (1992).

_____ ______
This
exhortation:
omissions as

brings
that the

oversee
from

the

to

appellant's

district

willful. While

scope of U.S.S.G.
955 F.2d 770,

us

third,

court erred

in

we review questions

and

last,

branding his

addressing the

3C1.1 de novo, see United States v. Manning,

__ ____ ___ _____________
_______

774 (1st Cir.

1992), we are

called upon here

to

the inferences the court drew from St. Cyr's conduct and
witnesses' credibility.

Factbound

determinations of

this sort are reviewable only for clear error.

See United States

___ _____________

v. Akitoye, 923 F.2d 221, 229 (1st Cir. 1991).

_______
16

St. Cyr argued to the district court that his omissions

were

inadvertent; he

convictions
claimed

St.

provide a

past was not willful.

that . .

. [his]

different

the
account

reaction

to

unmentioned

complete record

The district

the

of

the

interview

officer's

convictions.

who
and

independent

In the

[did] not find

and credible

of those circumstances."
officer,

of his

court listened to

point and "specifically

probation

previous

On that basis, he

testimony [was] persuasive

respect to his version

from

about his

of the moment.

failure to

Cyr testify on this

heard

simply forgotten

under the stress

that his

criminal

had

The

provided
of

St.

court also
a

markedly

Cyr's later

discovery

end, the court

with

of

the

found that St.

Cyr had

intentionally misled

the probation officer

several

convictions from his

criminal history;

by omitting

and that,

as a

result,the preparationofthepresentencereportwasneedlesslydelayed.

In the sentencing phase, credibility determinations lie

within the
the most
sterile

domain of the district

urgent circumstances

court.
will

appellate record, meddle in

legitimate reason to

do so here.7

Only rarely

we, from the

such matters.

Thus, this

and in

vista of

There is no

issue assumes

____________________

7U.S.S.G.
3C1.1, comment. (n.1) suggests that, in applying
the obstruction-of-justice guideline, the defendant's "testimony
or statements should be evaluated in a light most favorable to

[him]."
St. Cyr says that the proper application of this
language requires that all evidentiary conflicts be resolved in
favor of the defendant. We have held many times, however, that
the Sentencing Commission did not mean to give defendants so
dazzling a prize. See United States v. Torres, 960 F.2d 226, 228
___ _____________
______
(1st Cir. 1992); United States v. Brum, 948 F.2d 817, 819 (1st
_____________
____
Cir. 1991); United States v. Rojo-Alvarez, 944 F.2d 959, 969 (1st
_____________
____________
Cir. 1991); United States v. Aymelek, 926 F.2d 64, 68 (1st Cir.
_____________
_______
1991); Akitoye, 923 F.2d at 228-29. Rather, the language means
_______
that, in a borderline case
one where the judge, after
scrutinizing the evidence, has no firm conviction one way or the
17

familiar cast:
the

when there are two plausible views of the record,

sentencing

court's adoption

of

one

such view

clearly erroneous.

See United States v. Ruiz,

___ _____________
____

(1st Cir.

The

1990).

cannot

be

905 F.2d 499, 508

obstruction-of-justice enhancement

must

stand.
IV.
IV.

CONCLUSION
CONCLUSION
We need go no further.

affirmed,

as is

his

sentence on

district court incorrectly applied

those

in the business of

the sentence imposed on

The defendant's convictions are

count I.

But, because

the guideline enhancement for

dealing in stolen

property, we vacate

count II and remand for

accordance with this opinion.

the

resentencing in

Affirmed in part; vacated in part; remanded.

Affirmed in part; vacated in part; remanded.
___________________________________________

____________________

other
the defendant should be given the benefit of the doubt.
In light of the district court's emphatic findings, the quoted
language has no applicability here.
18