USCA1 Opinion

September 7, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2407
UNITED STATES,
Appellee,
v.
TEODORO SAMUEL MELO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
____________________
Ernest Barone on brief for appellant.

_____________
Edwin J. Gale, United States Attorney, and Zechariah Chaf
______________
_______________
Assistant United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
___________
distributing
cocaine.

and

He is

possessing

After

report.

Melo's

distribute

of

probation

preparing a

and

on him

indicted

a firearm and
a bench

assume because

under

not present

at

the probation officer

answered that

different

resisting arrest in
warrant for
he

officer

presentence

The probation officer discovered that

arrested

(we

for purposes

had ever been arrested; Melo

that subsequently
issued

guilty,

During the interview,

asked Melo if he

possessing

to

court-appointed counsel was

the interview.

been

intent

guilty to

We affirm.

pleading

Melo

he had not.

with

Melo pled

now challenging the sentence imposed

by the district court.

interviewed

Teodoro Samuel

name

for

New York, and

his arrest

failed to

Melo had

appear

had been
after his

release).

The

probation officer also

discovered that

Melo

had given false names for his siblings at the

interview.

counsel,

follow-up

admitted

interview

that

attended

he had

arrest because

by

intentionally

he was "scared of the

Melo's
lied

about his

At
Melo

prior

Feds," and that he had

lied about the names of his siblings to prevent the probation

officer from

contacting

them

and

learning

of

his

prior

recommended that the

court

arrest.
The presentence report
increase Melo's base
3C1.1

for

Sentencing
(n.3(h))

obstruction

of

justice.

See
___

Commission, Guidelines Manual

__________________
(Nov. 1992)

defendant gives

officer in

offense level under sentence

United

States

3C1.1, comment.

an enhancement

if the

"materially false information to a probation

respect to

for the court").

(providing for

guideline

a presentence or

other investigation

It also noted that the court could consider

an upward departure from the sentencing guideline range since

Melo had committed the drug offense while on pretrial release

for the New York offense.

departure

from

the

See id.
_______

4A1.3 (suggesting

otherwise applicable

criminal

that

history

category might be appropriate if the defendant had "committed

the

instant offense while

another

on bail

serious offense").

obstruction

of

justice

or pretrial

Melo's

release for

counsel objected

enhancement,

arguing

to an

that

the

misinformation was "harmless" since the probation officer had

discovered

the lie

records search,
defined in
not

during

an

allegedly

that the prior arrest was

the Sentencing

been present to advise

routine

not "material" as

Guidelines, and that

Melo at his

criminal

counsel had

first interview and

Melo had not been told that he could remain silent.

At
against the

sentencing,

counsel

obstruction of

for

Melo

again

argued

justice enhancement (and

for an

acceptance of responsibility reduction), but did not reassert

his

constitutional

presentence

challenge

interview.

The

to
court

Melo's
enhanced

uncounselled
Melo's

offense level for obstruction of justice, and reduced it

his acceptance of responsibility,
level

of

category

22;
by

he

then increased

one level

because

-3-

base
for

arriving at a base offense

Melo's
he had

criminal
committed

history
the drug

offense

while

"under

bail

with

an

arrest

warrant

outstanding," thereby arriving at a criminal history category

of

II.

Using

the

sentencing table,

applicable

guidelines

the court imposed the

range

in

the

maximum sentence of

57 months in prison.
Melo

asserts

sentence.

First,

right

counsel at

to

three

he claims
the

grounds

for

that he had
first

vacating

a Sixth

his

Amendment

presentence interview

and

should have been advised of his Fifth Amendment rights before

the interview, arguing
probation

officer

challenges

that he

had counsel

the increase

saying that

been

in his

the original

"significantly

would not have

lied to

present.

criminal

Second,

criminal history since the

the

he

history category,

criminal history category

underrepresent"

the

seriousness

did not
of

his

firearms offense was not serious.

Third, he denies that his lie concerning his prior arrest was
material.

We consider each claim in turn.

1.

The Presentence Interview

_________________________

Melo's
reason.
Amendment

first

Melo's counsel
challenge

to

challenge

fails for

very simple

did not present his Fifth

the presentence

interview

and Sixth
to

district court at sentencing, and thus did not preserve

issue for

appeal.

See

United States v.

the
this

Ocasio-Rivera, 991

__________________
F.2d 1, 2-3 & n.3
allegation

_____________

(1st Cir. 1993) (declining to

that conducting

a presentence

consider an

interview without

-4-

counsel

violated

the Sixth

Amendment

where

the appellant

failed to make that claim at sentencing, and determining that

the

narrow exception

for

below where circumstances

considering issues

not presented

were unusually compelling

did not

apply).
2.

Increase in Criminal History Category

_____________________________________

We also find
We

have

previously

Melo's second argument

sustained

decision

unpersuasive.
to

increase

defendant's criminal history category by one level to account

for the defendant's commission of an offense at a time when a
bench warrant for
appear

his arrest was outstanding for

on a separate charge.

978 F.2d 746, 749 (1st

contrary

provide no

See United States v. Garcia,

__________________
______

Cir. 1992).
basis for

failure to

Melo's arguments

departing from

to the

our previous

holding.
Melo
history

says

category was

first

would

have

criminal history
reading

of the

factual premise

increasing

unreasonable

have received a sentence

says,

that

point,

because he

of one year or less

resulted

in

sentencing guidelines

in

criminal

would likely
which, counsel

the addition

leaving him

is wrong.

his

of

only

category I.

suggests that

See Guidelines Manual

___ __________________

one
Our

Melo's
4A1.1(b)

("Add

2 points for each prior sentence of imprisonment of at

least

sixty days"

which

was not

different subsection adding

already

counted under

points for sentences

of greater

-5-

than one year and one month);

id. Sentencing Table (equating

___

2 or 3 criminal history points with criminal history category

II).

Moreover, we rejected the very same argument in United

______

States v.
______

Madrid, 946 F.2d 142, 143

______

therefore do so now.

(1st Cir. 1991), and we

Melo

also

argues

history

category

offense

was not serious.

Melo's
was

was

that

unreasonable

the

criminal
New

York

actual facts behind

there is no

offense

In any event,

question that he

that

it was not the nature of the

persuaded

increase Melo's criminal history

Melo committed the instant

a bench warrant for his

Cf. United States

_________________
Cir.

1990)

the

district

court

to

category, but the fact that

offense while on pretrial release

because he had absconded.

(1st

his

indicted for a felony and that by definition a felony is

firearms

too.

because

Whatever the

possession of the gun,

a serious crime.

after

increasing

arrest had issued, presumably

Accordingly, this argument fails,

v. Hernandez, 896
_________

(rejecting

defendant's

F.2d 642, 644-45

attempt

to

show

prejudice because he was prevented from arguing at sentencing

that he was innocent of the prior pending charge since it was
the very existence of a serious pending charge at a time when
the defendant
his

committed the

offense of conviction,

and not

likely guilt or innocence on the prior charge, which led

the court to increase his criminal history category).

-6-

Finally, Melo suggests that

the court erred by not

finding specifically that its departure was warranted because

criminal history category I
the

seriousness of

his

criminal history.

transcript shows that the

issues

"significantly underrepresented"

and the probation officer's

In

the

sentencing guideline
departure

under

and that the report

4A1.3,

probation officer

including its

guideline

was

of

the

likelihood that

defendant's

the defendant

when

a
the

under-represents the

criminal

history

will commit

The probation officer explained

quoted

language that

"warranted

criminal history category significantly

seriousness

the

recommendations were referred to

report, the

that

sentencing

sentencing proceeding tracked

raised in the presentence report

throughout.

The

or

the

further crimes."

that the guideline indicated

that a departure might be warranted for a defendant like Melo

who

commits an offense while on bail or pretrial release for

another

serious offense,

concluding

consider a departure upward.

crime

by one

required

finding

level.

activity
departing

was

implied

or

4A1.3

likelihood
in

upward, and so we

the

drug

Melo's criminal history

Consequently,

under guideline

underrepresentation

could

York offense was the reason

court gave for raising

category

court

Melo's commission of the

while on bail for the New

the district

that the

of

court's

see no error

we

think that

as

any

to significant

further
stated

criminal

reason

for

in its sentencing

-7-

decision.
Cir.

See United States v. Calderon, 935 F.2d 9, 12 (1st

_________________
________

1991)

determination
would

(sustaining
that

the

sentencing

appellant's

be significantly

criminal

court's

implicit

history

category

underrepresented absent

a one-level

increase in criminal history category).

3.

Enhancement for Obstruction of Justice

______________________________________

Finally, Melo

argues that his false

statements to

the probation officer were not "materially false"

not

warrant

recently
under
the

an

sustained an

of justice

obstruction

of

enhancement.
justice

We

enhancement

practically identical circumstances, and so we sustain

enhancement here.

569, 575 (1st Cir.

been
New

obstruction

and so did

See United States v. Pineda, 981 F.2d

_________________
______

1992) (holding that a defendant,

who had

arrested under a different name on a firearms charge in

York, and who had

arrest

for

failure to

an outstanding bench
appear on

that

warrant for his

charge, had

made a

materially false
the probation
offense

of

statement under section 3C1.1

officer preparing a presentence

conviction

that

he

had

never

when he told
report on the
before

arrested).
The sentence of the district court is affirmed.
________

-8-

been