UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4300
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BELKIS DIAZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-04-96-1)
Submitted: July 7, 2006 Decided: August 21, 2006
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
David B. Smith, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, James P.
Gillis, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Belkis Diaz appeals the sixty-three month sentence
imposed after she pleaded guilty to one count of making a false
statement in a passport application, in violation of 18 U.S.C.
§§ 1542, 2 (2000). Because we conclude that Diaz’s offense level
was improperly enhanced for obstruction of justice, we vacate her
sentence and remand for resentencing.
On appeal, Diaz raises four assertions of error in the
determination of her sentence. She first argues that the district
court erred in enhancing her offense level for obstruction of
justice and denying her a reduction in offense level for acceptance
of responsibility. The court’s decision arose from a statement
Diaz gave to officers after her arrest, in which she stated that
she committed the passport application fraud under the direction of
an individual named Jose Luis Rodriguez. The district court
concluded that Diaz’s statement regarding Rodriguez was false and
that the Government expended significant resources attempting to
locate Rodriguez based upon that statement,1 which supported an
enhancement for obstruction of justice and the denial of a
reduction for acceptance of responsibility.
1
At sentencing, the Assistant United States Attorney stated
that the Government was unable to locate Rodriguez at the place of
employment provided by Diaz. On appeal, counsel for Diaz states
that, with a single telephone call, he verified Rodriguez’s
employment during the relevant time period at the taxicab company
identified by Diaz, and obtained other information regarding
Rodriguez.
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We review a district court’s determination that a
defendant obstructed justice for clear error. United States v.
Hughes, 401 F.3d 540, 560 (4th Cir. 2005). “A finding is clearly
erroneous when although there is evidence to support it, the
reviewing court on the entire record is left with the definite and
firm conviction that a mistake has been committed.” United States
v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). The Sentencing
Guidelines2 provide for a two-level increase in a defendant’s
offense level “[i]f (A) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of
justice during the course of the investigation, prosecution, or
sentencing of the instant offense of conviction, and (B) the
obstructive conduct related to (i) the defendant’s offense of
conviction and any relevant conduct.” USSG § 3C1.1.
“[P]roviding a materially false statement to a law
enforcement officer that significantly obstructed or impeded the
official investigation or prosecution of the instant offense” is
specifically listed as an example of conduct for which the
enhancement is appropriate. USSG § 3C1.1, comment. (n.4(g)). A
false statement regarding the culpability of a co-defendant is
sufficient to support the enhancement. United States v. Kiulin,
360 F.3d 456, 460 (4th Cir. 2004).
2
U.S. Sentencing Guidelines Manual (USSG) (2003).
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We conclude that the district court’s decision to impose
the obstruction of justice enhancement was clearly erroneous.
Although a district court is given broad discretion in the type of
information it may consider at sentencing, 18 U.S.C. § 3661 (2000),
the information offered by the Government to support the
enhancement in this case is insufficient. Significantly, the
Government offered no testimony to establish the falsity of Diaz’s
statement or the significance of the impairment that the statement
caused to the investigation. As the issue of the falsity of Diaz’s
statement was disputed, the district court erred in relying on mere
proffers from the AUSA to support the enhancement. Because the
court’s denial of a reduction for acceptance of responsibility was
based upon its finding that Diaz obstructed justice, this
conclusion is also erroneous.3
Diaz also argues that the district court erred in
enhancing her offense level because the children whose identities
were used in the fraud scheme were vulnerable victims, pursuant to
USSG § 3A1.1(b)(1), and in applying a two-level enhancement based
on the use of a minor in the commission of the offense, pursuant to
3
The district court’s denial of a reduction in Diaz’s offense
level for acceptance of responsibility naturally followed its
conclusion that she obstructed justice. See USSG § 3E1.1, comment.
(n.4). While we find that conclusion was erroneous, we express no
opinion on whether Diaz is entitled to a reduction in her offense
level for acceptance of responsibility on remand.
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USSG § 3B1.4. We have considered Diaz’s arguments and find that
the district court properly applied these enhancements.
Diaz’s final argument is that her sentence is
unreasonable under Booker because the district court failed to
consider the factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2006), other than the Guidelines. Because we conclude that the
Guidelines range was not properly determined, Diaz’s sentence is
unreasonable. See United States v. Green, 436 F.3d 449, 457 (4th
Cir.) (sentence resulting from error in construing or applying the
Guidelines will be found unreasonable and vacated), cert. denied,
126 S. Ct. 2309 (2006).
We therefore vacate Diaz’s sentence and remand for
resentencing. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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