Appeal from the United States District Court for the District of Delaware, D.C. Docket No. Crim. 88-00028-6, D.C. Docket No. Crim. 88-00026.
Sloviter, Greenberg, and Rosenn, Circuit Judges.
This appeal of the sentence meted out to the appellant,, John W. McDowell, Jr., presents a question of first impression for this court. We must initially determine the burden of proof with respect to facts relevant in the calculation of a sentence under the new Sentencing Guidelines. Then we must determine this court's scope of review with regard to those determinations of fact.
McDowell pled guilty to a count of knowingly making a false statement material to the lawfulness of the sale of a firearm in violation of 18 U.S.C. § 922(a)(6), a count of knowingly possessing a firearm in and affecting commerce in violation of 18 U.S.C. § 922(g)(1), and a count of operating an illegal gambling operation in violation of 18 U.S.C. § 1955. The district court adjusted his offense level upwards for having obstructed justice by suborning the testimony of his son, and declined to adjust the offense level downwards for acceptance of responsibility for the commission of the offenses. As a result of these calculations, the court sentenced the appellant to a twenty-four month term of imprisonment.
On appeal, McDowell challenges this sentence on three grounds. He first claims that the court abused its discretion in allowing the disclosure of his son's grand jury testimony which it is alleged that he suborned. Next, he challenges the court's determination that he suborned his son's testimony. Finally, he contends that he should have been granted the reduction for acceptance of responsibility on all but one of the counts. We affirm the sentence imposed.
A. Imposition of the Sentence
The Government charged John W. McDowell, Jr., in two separate indictments: Criminal Action No. 88-26 charged him with three counts of weapons violations under 18 U.S.C. § 922(a)(6) and two counts under 18 U.S.C. § 922(g)(1), and Criminal Action No. 88-28 charged him and others with one count of maintaining a gambling business in violation of 18 U.S.C. § 1955 and one count of conspiracy to conduct an illegal gambling business in violation of 18 U.S.C. § 371. In a pretrial conference pursuant to the first indictment, as part of a plea bargain agreement, McDowell changed his not guilty plea on two of the weapons violations counts to guilty. The court accepted the plea agreement and scheduled a sentencing hearing. Prior to this hearing, the Government filed a motion to disclose grand jury information with respect to the grand jury testimony of McDowell's son, John W. McDowell, III. The court granted this motion.
Before his sentencing, McDowell withdrew his guilty plea and a trial was scheduled. On the day of trial, McDowell again requested, and was granted, permission to change his plea on two counts of the first indictment and one count of the second indictment to guilty. The court again scheduled a sentencing hearing.
Prior to the sentencing hearing, Senior U.S. Probation Officer Eugene Mayhew compiled a presentence investigation report. Mayhew's report concluded that based upon
the apparent contradiction between the statement of Mr. McDowell's son to the investigating agents and his testimony before the grand jury, as well as the statement of the owner of Steele's Gun Shop . . . Mr. McDowell's offense level should be increased two levels. More specifically, he appears to have suborned untruthful testimony by his son before the grand jury.
Mayhew also asserted that McDowell's offense level should not be adjusted downward for acceptance of responsibility because he had suborned testimony. See Sentencing Guidelines § 3E1.1(c) application note 4. McDowell objected to this report and requested and was granted an evidentiary hearing. At the hearing the court found that McDowell had suborned his son's testimony.
At the sentencing hearing Judge Roth determined the base offense level for the weapons charges to be nine for each offense. See Sentencing Guidelines § 2K2.1. She then upwardly adjusted the level for the count of knowingly possessing a firearm in and affecting commerce by two, to eleven, for McDowell's having suborned testimony. See Sentencing Guidelines § 3C1.1 application note 1(c). She determined the base level offense for the gambling violation to be twelve and made no adjustments. See Sentencing Guidelines § 2E3.1. The offenses were then combined, pursuant to Guidelines § 3D1.4, to arrive at an offense level of fifteen. The judge then declined to adjust this to reflect any acceptance of responsibility. Based upon this offense level, the judge sentenced McDowell to a twenty-four month prison term.
B. Young McDowell's Testimony
On April 26, 1988, the appellant's son, John McDowell, III, testified before the Grand Jury in the District of Delaware. He testified that he owned and purchased the AR-15 firearm which the Delaware State Police seized in the December 20, 1987, search of his father's home. He explained that he had brought the gun to Delaware on December 19, 1987, from Florida, where he was a student. If this testimony were accurate, it would have completely exculpated his father for the charges relating to the AR-15.
The grand jury testimony directly conflicted with answers the younger McDowell had given to Treasury Department agents just four days prior. On April 22, 1988, McDowell was questioned at his mother's home and in his mother's presence by Bureau of Alcohol, Tobacco, and Firearms Special Agent Swartswelder and Internal Revenue Commission Special Agent Amato. He told the special agents that he had never owned nor had ever purchased a firearm. He also told them that he had only been in Delaware once in 1987, at Eastertime, and that he had not seen his father since either 1984 or 1985. The interview ended when Swartswelder showed McDowell a copy of a firearm transaction dated April 23, 1987, for an AK-47 rifle which bore the ...