Appeal from the United States District Court for the Central District of California. D.C. No. CR-93-00168-LGB. Lourdes G. Baird, District Judge, Presiding.
Before: Cynthia Holcomb Hall and Edward Leavy, Circuit Judges, and Michael Hogan,*fn* District Judge. Opinion by Judge Leavy.
In this appeal we must determine whether a defendant's refusal to be interviewed by a probation officer gives rise to a Sixth Amendment claim of ineffective assistance of counsel, when that refusal was based on defense counsel's failure to schedule a time to be present for such an interview. For the reasons which follow, we conclude on the facts of this case that no Sixth Amendment violation occurred.
FACTS AND PRIOR PROCEEDINGS
In April 1992, Viken Benlian ("Benlian") opened a phony auto accessory store called The Rim Shop in Colton, California. The Rim Shop had a credit card point-of-sale terminal ("POST") for electronically entering credit card purchases. Using stolen credit card numbers, Benlian entered more than $20,000 in false purchase transactions until his POST was terminated in June 1992. Immediately thereafter, Benlian recruited several individuals to set up other phony auto repair and accessory shops (viz., Rim Shop, One Stop Rim Shop, Discount Auto Accessories, and S & K Auto Accessories) in Rancho Cucamonga and La Puente, California, for the purpose of obtaining new POSTs.
Using stolen credit card numbers obtained on the black market, the co-conspirators entered hundreds of false purchase transactions on the POSTs. The amounts of these phony purchases were then deposited and subsequently transferred to various bank accounts before being withdrawn as cash. In less than three months, the co-conspirators had attempted to enter more than $2 million in fraudulent purchases on their POSTs, and had obtained more than $300,000 in cash.
Federal authorities arrested three of the co-conspirators in January 1993, and charged them with use of an unauthorized access device, in violation of 18 U.S.C. § 1029(a)(2).*fn1 As the result of information obtained from the three co-conspirators, an arrest warrant was issued the following month for Benlian. After two failures to keep his promises to turn himself in, Benlian was finally arrested on February 15, 1993. A fourth co-conspirator was arrested the following month.
On February 25, 1993, a federal grand jury handed down a three-count indictment charging Benlian with one count of conspiracy (18 U.S.C. § 371)*fn2 and two counts of using an unauthorized access device (18 U.S.C. § 1029(a)(2)). On the Friday before trial was scheduled to begin, Benlian entered into an agreement with the government, pursuant to which he pleaded guilty to counts 1 and 3, and the government dropped the second count. Sentencing was scheduled for August 9, 1993.
Benlian's lawyer apparently advised his client not to talk to any representative of the Probation Office ("PO") without counsel being present. Unfortunately, the attorney went on vacation to Europe shortly after Benlian pleaded guilty and just before the PO started work on Benlian's Presentence Investigative Report ("PSR"). When the PO's efforts to reach Benlian's lawyer proved unavailing, the PO sought to interview Benlian without his attorney being present. Benlian refused to be questioned in the absence of counsel, so the PO drafted its PSR without the benefit of an interview. Upon his return from vacation, Benlian's lawyer sought to have the PO withdraw its PSR and prepare a new report, based on an interview with counsel present, but nothing ever came of this.
After granting two continuances, the court held Benlian's sentencing hearing on February 7, 1994. At the Conclusion of the hearing, the court rejected Benlian's arguments that (1) he should not receive a four-level upward adjustment for his leadership role in the offense (based on the court's determination that Benlian had organized the conspiracy with at least six others); (2) he should not receive a two-level upward adjustment for obstruction of Justice (based on the court's finding that Benlian had lied to authorities and threatened one of his co-defendants); and (3) he should not be denied a three-level downward adjustment for acceptance of responsibility (based on the court's Conclusion that Benlian had attempted to minimize his important role in the offense). The court then ordered Benlian to pay restitution to several victims, imposed a fine of $7,500, and sentenced him to 46 months in prison, to be followed by three years of probation. Benlian has timely appealed, arguing that the district court misapplied the Sentencing Guidelines as the result of the ineffective assistance of his defense counsel.
We review de novo a district court's interpretation and application of the Sentencing Guidelines. United States v. Naranjo, 52 F.3d 245, ___, slip op. 3961, 3970 (9th Cir. 1995). We examine for clear error any ...