WESLEY E. BROWN, Senior District Judge.
This matter came before the court on the defendant's objections to the Presentence Report. The court heard evidence relating to the objections at a sentencing hearing on January 31, 2000. The hearing was then continued until February 1, 2000, at which time the court orally ruled on the objections. This written memorandum will supplement the court's oral rulings.
The defendant's first objection is to a two-level enhancement in the Presentence Report for obstruction of justice. The Report recommends application of the enhancement based on allegations that the defendant was involved in an escape attempt at the Saline County Jail and that he provided materially false information to the Probation Officer in a presentence interview. The defendant's second objection concerns the Presentence Report's denial of a two-level decrease for acceptance of responsibility. The Report declines to give the reduction based on the same aforementioned allegations.
The court has reviewed the defendant's objections in light of the evidence presented yesterday. After doing so the court finds that the evidence does not warrant an obstruction enhancement.
With respect to the defendant's involvement in the attempted escape, the government presented testimony from Gary Balthazor, Acting Supervisory U.S. Marshal, who reviewed reports from Saline County jail officials. According to his testimony, those reports stated that two inmates at the jail reported that the defendant was involved in the escape attempt. The allegation against the defendant is thus based on hearsay, and depends solely on the credibility of these two inmates. The guidelines provide that the court may consider hearsay information "provided that the information has sufficient indicia of reliability to support its probable accuracy." USSG § 6A1.3. Under the circumstances, without having these witnesses examined about the basis of their knowledge, the court cannot say that the hearsay statements are sufficiently reliable to establish that the allegation is probably true. Accordingly, the court finds that this allegation cannot support the obstruction enhancement.
With regard to providing false information, the guidelines state that "providing materially false information to a probation officer in respect to a presentence" investigation is a type of conduct to which the obstruction enhancement applies. USSG § 3C1.1, comment n. 4(h). The court does find from the evidence that the defendant provided information during his interview that he knew was false, including information about what schools he attended, about his prior drug use, and about a prior marriage. But the court also finds this information was not material to the defendant's sentence. "Material" is defined as information that, if believed, would tend to influence the issue under determination. See id. at n. 6. The defendant's misrepresentations dealt more with collateral matters than with issues that would affect the determination of his sentence under the guidelines.
The guidelines provide that some types of conduct ordinarily do not warrant an obstruction enhancement but may warrant a greater sentence within the guideline range or may affect the adjustment for acceptance of responsibility. USSG 3C1.1, comment n. 5. One example of such conduct is "providing incomplete or misleading information, not amounting to a material falsehood, in respect to a presentence investigation." Id. The court finds that the defendant's misrepresentations fall under this category. The court further finds that his conduct is inconsistent with an acceptance of responsibility. Although the defendant truthfully admitted his role in the offense, the fact that he intentionally provided false information to the Probation Office during his presentence interview, which made it more difficult for the Probation Office to conduct its investigation, persuades the court that he has not clearly demonstrated an acceptance of responsibility and is not entitled to the reduction.
Conclusion.
The defendant's objection to the obstruction enhancement is SUSTAINED; his objection to the failure to grant a two-point reduction for acceptance of responsibility is DENIED.
With this ruling, the court finds that the appropriate adjusted offense level is 8, with a Criminal History category of VI, resulting in a guideline sentencing range of 18-24 months.
The Probation Officer in charge of this case shall see that a copy of this order is appended to any copy of the Presentence Report made available to the Bureau of Prisons. IT IS SO ORDERED this 1st day of February, 2000, at Wichita, Ks.