UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10657
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RAFAEL FLORES-BOTELLO,
aka Manuel Botello-Dominguez,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(1:95-CR-00003)
December 27, 1996
Before JOLLY, JONES and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant, Rafael Flores-Botello (“Flores-Botello”)
appeals his sentence. We affirm.
FACTS AND PROCEEDINGS BELOW
Flores-Botello pleaded guilty to illegal reentry into the
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
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United States following deportation in violation of 8 U.S.C. §
1326. His presentence report (PSR) recommended that a two-level
increase in Flores-Botello’s offense level be imposed for
obstruction of justice pursuant to U.S.S.G. § 3C1.1. The
recommendation was based on the fact that at the time of his
arrest, Flores-Botello gave two different aliases and produced a
Texas birth certificate and Social Security card issued to “Jose
Guillermo Hernandez.” Officials ascertained his true identity the
next day. At sentencing, Flores-Botello objected to the upward
adjustment for obstruction of justice, but the district court
overruled the objection and adopted the PSR in its entirety. Based
on a total offense level of ten and a Criminal History Category of
III, the applicable guideline range for imprisonment was ten to
sixteen months. The district court sentenced Flores-Botello to
fourteen months imprisonment, a one-year term of supervised
release, and a $50 special assessment.
DISCUSSION
Flores-Botello contends that the district court’s two-level
enhancement of his sentence for obstruction of justice pursuant to
§ 3C1.1 was improper. Specifically, he complains that the district
court failed to make the specific fact findings required to support
the conclusion that he obstructed justice subsequent to his arrest.
This court reviews a district court’s finding that a defendant
has obstructed justice under § 3C1.1 for clear error. United States
v. McDonald, 964 F.2d 390, 392 (5th Cir. 1992). Section 3C1.1
provides for the two-level enhancement of a defendant’s offense
level “[i]f the defendant willfully obstructed or impeded, or
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attempted to obstruct or impede, the administration of justice
during the investigation, prosecution, or sentencing of the instant
offense[.]” The Commentary to the Guidelines provides that the §
3C1.1 enhancement applies, for example, if the defendant
“produc[es] or attempt[s] to produce a false, altered, or
counterfeit document or record during an official investigation or
judicial proceeding.” § 3C1.1, comment. (n.3(c)). However,
providing a false name or identification document at arrest does
not warrant the enhancement unless the conduct significantly
obstructed or hindered the investigation or prosecution of the
instant offense. Id., comment, (n.4(a)).
In this case, the district court, by adopting the PSR, relied
on Application Note 3(c) in concluding that Flores-Botello had
“impeded and obstructed justice in the investigation of this case”
by giving Border Patrol agents two different aliases and producing
a fraudulent birth certificate and fraudulent Social Security card.
However, Flores-Botello’s use of false names and identification
documents at the time of his arrest comes under Application Note
4(a), which requires a showing of significant hindrance. In United
States v. Rickett, 89 F.3d 224 (5th Cir. 1996), the PSR found that
the defendant’s decision to provide a false identification document
at the time of his arrest resulted in the arrest of an innocent
individual and required the Government to file a superseding
indictment to correct the original indictment which listed the
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defendant under an alias. This court concluded that, under these
facts, the defendant’s actions had clearly resulted in a
significant hindrance and the district court’s failure to make a
specific finding as to this issue, although error, was harmless.
Id. at 227.
In the instant case, the district court also unfortunately
failed to make specific findings of significant hindrance.
However, as Rickett, it is clear that Flores-Botello’s conduct
significantly impeded the official investigation or prosecution.
The record reveals Flores-Botello’s deception at the time of his
arrest was a repeat performance of his use of false identification
during another detention, only a few days earlier in Abilene,
Texas. On the occasion of the second arrest, he produced a fake
Texas drivers license and Social Security card and claimed two
false aliases. Appellant was thus a repeat obstructer, and his
earlier obstruction enabled him to be involved in the second crime
of which he is here convicted. The court did not clearly err in
accepting the PSR’s determination that this conduct posed a
significant hindrance to law enforcement.
For these reasons, the sentence is AFFIRMED.
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