IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50280
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EMILIO LUNA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(W-95-CR-71-1)
_________________________
January 14, 1997
Before HIGGINBOTHAM, SMITH, and EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Emilio Luna appeals his sentence for possession of cocaine
with intent to distribute. We affirm.
I.
Investigators from the Central Texas Narcotics Task Force
*
Pursuant to 5TH CIR. R. 47.5, we have determined that this opinion should
not be published and is not precedent except under the limited circumstances set
forth in 5TH CIR. R. 47.5.4.
received information that Luna was distributing cocaine at his home
in Belton, Texas. The investigators obtained a search warrant for
Luna’s residence and attempted to serve it. As Luna drove up to
his trailer, he spotted the officers and began to speed awaySSfirst
through his front yard, then through a chain-link fence, and
finally through the streets of Belton. As they pursued him, the
investigators saw Luna first discard white powder through his open
driver’s door, then later hurl a number of small plastic bags from
the driver’s window.
The chase ended four to five miles from where it had begun
when Luna drove into a cul-de-sac and was taken into custody. The
plastic bags also were recovered; they tested positive for cocaine.
Because it was raining and much of the cocaine had been spilled
into the mud, however, the investigators were unable to determine
exactly how much of it Luna had possessed.
Luna pleaded guilty to possession of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). At his
sentencing hearing, the district court both denied his request for
a downward adjustment in his base offense level for acceptance of
responsibility and overruled his objection to a two-level upward
adjustment for obstruction of justice.
II.
We first must address Luna’s motion to proceed in forma
2
pauperis (“IFP”) on appeal. The district court appointed counsel
for the trial phase of Luna’s prosecution under the Criminal
Justice Act (“CJA”) and thus necessarily determined that Luna was
financially unable to obtain adequate representation. See
18 U.S.C. § 3006A(a). When Luna filed his notice of appeal, the
district court issued a 28 U.S.C. § 1915(a) certification that the
appeal was not taken in good faith.1 This determination, to which
we accord considerable weight, raises the issue of whether and
under what circumstances Luna may continue his IFP status on
appeal.
In United States v. Boutwell, 896 F.2d 884 (5th Cir. 1990), we
analyzed the interplay between FED R. APP. P. 24(a), the rule on
appellate IFP proceedings, 18 U.S.C. § 3006A, the relevant
provision of the CJA, and § 1915.2 We held that a criminal
defendant proceeding IFP is entitled to rights no greater and no
less than is one who pays a fee and that IFP status does not
insulate a litigant from the requirement that his appeal not be
frivolous. 896 F.2d at 889-90. We also noted that under
rule 24(a), a request to proceed IFP need be made only once,
1
While Luna’s appeal was pending, the President signed the Prison
Litigation Reform Act of 1995 (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321
(1996), which substantially amended § 1915. The portion of § 1915 that affects
criminal cases has not been changed, however, and the PLRA therefore does not
apply to the instant case. Cf. United States v. Cole, 101 F.3d 1076, ____ (5th
Cir. 1996) (holding that the PLRA does not apply to habeas corpus petitions).
2
Although Boutwell was a one-judge order rather a full panel opinion,
under our local rules it is accorded the same precedential weight. See FED R.
APP. P. 27(c); 5TH CIR. R. 27.2.4.
3
“whenever the question first arises.” Id. at 889 (emphasis
deleted).
The issue of whether Luna may continue his IFP status thus
hinges on whether his appeal is frivolous. If it is, § 1915(a) and
rule 24(a) mandate that he may not proceed IFP. If it is not,
rule 24(a) permits him to proceed IFP without further authoriza-
tion, because he was accorded that status in the court below.
A lawsuit is frivolous if it lacks an arguable basis either in
law or in fact. Denton v. Hernandez, 504 U.S. 25, 31-34 (1992).
See also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (holding
that a complaint is legally frivolous if it is based on an
“indisputably meritless legal theory”). Luna presents two grounds
for appeal, only one of which need be considered to resolve this
question.
In arguing that the district court should not have upwardly
adjusted his base offense level for obstruction of justice, Luna
asserts that it was clearly erroneous to find that his destruction
of evidence materially hindered his sentencing. He points out that
the government simply could have asked him how much cocaine he
destroyed, and he additionally contends that whatever hindrance his
destruction of evidence may have caused was immaterial.
Although we do not find these to be particularly strong
arguments, they do have sufficient basis to survive the above test.
Accordingly, we vacate the certification that this appeal has not
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been brought in good faith. Luna’s IFP status continues in this
court because he had it in the district court, and his motion is
therefore denied as moot.
III.
The substantive issues in this appeal relate to the district
court’s application of the sentencing guidelines. As always, we
review the district court’s factual findings for clear error and
its interpretations of the sentencing guidelines de novo. See,
e.g., United States v. Gaytan, 74 F.3d 545, 558 (5th Cir.), cert.
denied, 117 S. Ct. 77 (1996); United States v. McCaskey, 9 F.3d
368, 372 (5th Cir. 1993), cert. denied, 511 U.S. 1042 (1994).
Consistent with this standard, we have previously held that the
factual determination of whether a defendant has obstructed justice
is reviewable for clear error. United States v. Bethley, 973 F.2d
396, 402 (5th Cir. 1992) (citing United States v. Paden, 908 F.2d
1229, 1236 (5th Cir. 1990)), cert. denied, 507 U.S. 935 (1993).
A.
Luna contends that the district court erred in increasing his
base offense level for obstruction of justice under U.S.S.G.
§ 3C1.1, which provides that a defendant may receive a two-level
increased if he “willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the
5
investigation, prosecution, or sentencing of the instant offense.”
The commentary to § 3C1.1 provides an extensive but non-exhaustive
list of actions that constitute obstruction. Id. comment. (n. 3).
Among these actions is destruction of evidence, which the commen-
tary notes is insufficient independently to support an adjustment
if it occurred at the same time as the defendant’s arrest, “unless
it resulted in a material hindrance to the official investigation
or prosecution of the instant offense or the sentencing of the
offender.” U.S.S.G. § 3C1.1, comment. (n. 3(d)).
The district court found that attempting to destroy the
cocaine “did constitute a material hindrance to the investigation,
prosecution and sentencing of this case,” as it made it consider-
ably more difficult to determine how much cocaine Luna had
possessed. This finding was adopted from the PSR, in which the
writer was forced to estimate the amount of cocaine involved in
Luna’s offense with information from Luna's suppliers and the
amount of tainted currency his wife possessed. Luna’s argument, in
essence, is to challenge the finding on this issue as clear error.
Because the government could have simply asked him how much cocaine
he threw out the window, he reasons, the fact that he did it was
not a “material hindrance.”
This argument is unavailing. In United States v. Velgar-
Vivero, 8 F.3d 236 (5th Cir. 1993), cert. denied, 511 U.S. 1096
(1994), we rejected a similar challenge to a § 3C1.1 enhancement
6
where the defendant had cast a sock full of bullets into Galveston
Bay and chewed a list of phone numbers to pulp. Though tossing
cocaine out the window of his car may not have materially impeded
Luna’s arrest or guilty plea, it did hinder the determination of
facts that were crucial to his sentencing. We therefore see no
clear error.
B.
Luna also contends that the district court erred in denying
him a downward adjustment to his base offense level for acceptance
of responsibility under U.S.S.G. § 3E1.1. We note initially that
the burden of demonstrating acceptance of responsibility was
Luna’s, see United States v. Ayala, 47 F.3d 688, 690 (5th Cir.
1995), and the refusal to grant this adjustment is entitled to
“great deference” on review, United States v. Vital, 68 F.3d 114,
120-21 (5th Cir. 1995). See also United States v. Garcia, 917 F.2d
1370, 1377 (5th Cir. 1990) (noting that we uphold a sentencing
court's decision not to award a § 3E1.1 reduction unless it is
"without foundation."). Moreover, it is only in an “extraordinary
case[]” that a defendant who has received an upward adjustment for
obstruction of justice may be eligible for this downward adjustment
as well. Ayala, 47 F.3d at 691.
Luna’s arguments on this point are meritless. The PSR, which
the district court adopted, found that the acceptance-of-responsi-
7
bility adjustment was inappropriate because Luna (1) had lied about
when he had begun selling cocaine; (2) had falsely suggested that
he had been shot by the investigators; (3) had lied about how many
bags of cocaine he discarded; (4) had failed to express remorse or
contrition for his actions; and (5) had fled from the investigators
and destroyed evidence. In short, there was abundant justification
for denying the adjustment, and the district court did not err in
so doing.
AFFIRMED.
Judge Garza concurs in the judgment only.
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