F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 4 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 98-3234
(D.C. No. 97-40084-01-SAC)
LUIS ARMANDO PEREA-VIVAS, (District of Kansas)
aka Jorge Colon Perez,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRORBY, HENRY and LUCERO, Circuit Judges.
Luis Armando Perea-Vivas pleaded guilty to possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841. His sentence calculation
included a two-level enhancement for obstruction of justice pursuant to the
United States Sentencing Guidelines (“USSG”) § 3C1.1. He appeals this two-
level enhancement, arguing that the evidence did not support its imposition. We
have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I
In October 1997, Perea-Vivas was a front-seat passenger in a Buick driven
by Asceneth Villota-Gomez when the vehicle was stopped for speeding by Kansas
Highway trooper B.K. Smith. While running computer checks on Villota-Gomez,
Smith elicited from her a statement that she had borrowed the car from “Yolanda”
to attend a cousin’s wedding, but did not know the location of the wedding and
was to meet someone in Kansas City at a convenience store at the corner of 27th
and Indiana Streets. 1
Smith stated that his suspicions were aroused by a strong odor of
automobile body repair putty and fresh paint from within the vehicle, an odor he
associated, in his experience, with the possibility of a hidden compartment
containing drugs. These suspicions were exacerbated by the defendants’ nervous
behavior and Villota-Gomez’s implausible statement of her travel plans.
Smith obtained Villota-Gomez’s consent to search the vehicle. Upon his
search, he discovered approximately five kilograms of what was eventually
determined to be cocaine. Upon Perea-Vivas’s arrest, he produced false Texas
identification indicating his name was Jorge Colon Perez. The address on this
recently-obtained identification card was later determined to be that of Isabel
1
Investigation subsequently discovered no convenience store in the
vicinity of the named intersection.
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Yolanda Cortez, the owner of the Buick. Perea-Vivas was also found to be in
possession of a pager obtained under the name of Isa or Yolanda Galvin, residing
at that same address, and receipts for the transfer of approximately $850 to
Colombia. Isabel Yolanda Cortez was also later discovered to have posted a
$2500 bond for Perea-Vivas’s previous arrest on immigration charges.
Perea-Vivas and Villota-Gomez were charged by a grand jury with one
count of possession with intent to distribute more than five kilograms of cocaine,
in violation of 21 U.S.C. § 841(a)(1) & b(1)(A) and 18 U.S.C. § 2, and one count
of conspiracy to possess with intent to distribute cocaine, in violation of 21
U.S.C. §§ 841(a), 846 and 18 U.S.C. § 2. At their detention and arraignment
hearing, Villota-Gomez pleaded not guilty.
In February of 1998, Perea-Vivas entered a petition to plead guilty to the
first count, possession with intent to distribute, in exchange for the government’s
promise to dismiss the conspiracy count and seek a sentence adjustment for
acceptance of responsibility. At his plea hearing, Perea-Vivas pleaded guilty and
requested the opportunity to address the court. Through an interpreter, Perea-
Vivas stated as follows:
He says that he took advantage of the young lady, the codefendant,
and she’s innocent. She knew nothing of that contraband in the car,
that she knew absolutely nothing. He, um, he fooled her, I guess you
might say. He made a fool of her or fooled her. She wasn’t aware
that there were drugs in the car, and she knew nothing about it.
She’s innocent.
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(II R. at 18-19.)
Shortly later that day, the court accepted Villota-Gomez’s plea of guilty as
to the count of possession with intent to distribute. Neither the court nor the
government questioned Villota-Gomez regarding whether Perea-Vivas knew of
her knowledge of the contraband.
The presentence report recommended that Perea-Vivas’s false assertion of
Villota-Gomez’s innocence represented a materially false statement to a judge and
therefore merited a two-level enhancement for obstruction of justice pursuant to
USSG § 3C1.1. Perea-Vivas objected, and the district court heard arguments
from both sides regarding the enhancement. With respect to the obstruction of
justice enhancement, the district court found the enhancement justified by Perea-
Vivas’s statement of Villota-Gomez’s innocence, noting as follows:
The court does not accept defendant[’s] counsel’s reasoning that one
didn’t know what the other was doing, and the court believes that the
obstruction of justice and the information given to the court was
false at the time it was given by the defendant to the court during his
plea.
(V R. at 18.) The district court proceeded to sentence Perea-Vivas to 97 months
imprisonment. Perea-Vivas now appeals the imposition of the obstruction of
justice enhancement.
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II
“In reviewing an application of the Guidelines, we will reverse the district
court’s factual findings only if clearly erroneous. However, we will remand for
resentencing if the Guidelines were incorrectly applied.” United States v.
Bernaugh, 969 F.2d 858, 861 (10th Cir. 1992) (citations and internal quotations
omitted).
USSG § 3C1.1 provides for a two-level sentencing enhancement if
(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; or (ii) a
closely related offense.
USSG § 3C1.1. The Guidelines’ “non-exhaustive list of examples” for
application of this enhancement includes “providing materially false information
to a judge or magistrate.” USSG § 3C1.1, comment. (n.4(f)). “Material”
information means, for purposes of the obstruction of justice enhancement,
“information that, if believed, would tend to influence or affect the issue under
determination.” USSG § 3C1.1, comment. (n.6). “[T]he section 3C1.1
enhancement applies where a defendant attempts to obstruct justice in a case
closely related to his own, such as that of a codefendant.” Bernaugh, 969 F.2d at
861; see also USSG § 3C1.1, comment. (n.1(B)(ii)).
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The parties apparently agree on the proposition, while differing as to its
implications, that in considering the application of an enhancement pursuant to
§ 3C1.1, the court should evaluate testimony in the light most favorable to the
defendant. See United States v. Arias-Santos, 39 F.3d 1070, 1076 (10th Cir.
1994). We note, however, that application note 1 to section 3C1.1 was amended,
effective November 1, 1997 (after Perea-Vivas’s crime but prior to his
sentencing) to eliminate language providing that “testimony or statements should
be evaluated in a light most favorable to the defendant.” USSG App. C, amend.
566. The application note now provides that “the court should be cognizant that
inaccurate testimony or statements sometimes may result from confusion,
mistake, or faulty memory and, thus, not all inaccurate testimony or statements
necessarily reflect a willful attempt to obstruct justice.” USSG § 3C1.1,
comment. (n.2). In determining which version of the Guidelines to apply, we
have held:
Normally, district courts are to apply the sentencing guidelines in
effect at the time of sentencing rather than the guidelines in effect on
the date of the offense. See 18 U.S.C. § 3553(a)(4) & (5). But the
ex post facto clause prohibits retroactive application of a changed
guideline if the change disadvantages the defendant. See Miller v.
Florida, 482 U.S. 423, 430, 433 (1987). See also United States v.
Smith, 930 F.2d 1450, 1452 n. 3 (10th Cir. 1991).
United States v. Underwood, 938 F.2d 1086, 1090 (10th Cir. 1991). We need not
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resolve whether the amendment at issue implicates ex post facto issues because
our result remains the same under either version of the application note.
We consider whether the district court’s factual findings were clearly
erroneous, or its application of USSG § 3C1.1 incorrect, with respect to the
necessary elements of this obstruction enhancement: falsity, materiality, and
willfulness. See United States v. Cerrato-Reyes, 176 F.3d 1253, 1263 (10th Cir.
1999).
A. Falsity
The falsity of Perea-Vivas’s statements is evident. Shortly after he
asserted Villota-Gomez’s innocence and ignorance of the contraband, she entered
a plea of guilty to a charge of possession with intent to distribute. This offense
necessarily incorporated an element of scienter, therefore refuting Perea-Vivas’s
assertion of his co-defendant’s ignorance. Perea-Vivas’s claim that his statement
was not a statement of fact but merely a subjectively true statement of his own
lack of knowledge of Villota-Gomez’s involvement is belied by his affirmative
statement to the court that he “made a fool of” or “fooled” his co-defendant.
Therefore, the element of falsity is clearly established.
B. Materiality
We agree with Perea-Vivas that a false statement regarding a co-
defendant’s innocence, like a false statement regarding a defendant’s own
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innocence, “does not automatically warrant” an obstruction of justice
enhancement. Cerrato-Reyes, 176 F.3d at 1263 (quoting United States v.
Markum, 4 F.3d 891, 897 (10th Cir. 1993)). Such a false statement must
additionally concern “a material matter designed to substantially affect the
outcome of the case.” Cerrato-Reyes, 176 F.3d at 1263 (quoting Arias-Santos, 39
F.3d at 1077). “Whether the particular facts of a case show that the
misinformation offered by the defendant was sufficient to significantly impede an
investigation is a question of fact to be determined by the sentencing court.”
United States v. Flores-Flores, 5 F.3d 1365, 1368 (10th Cir. 1993) (citing United
States v. Easterling, 921 F.2d 1073, 1077 (10th Cir. 1990)). 2 Although it is
unlikely, given the timing of Perea-Vivas’s statement, that the government or the
court would have believed his assertions of Villota-Gomez’s innocence, the
futility of his attempt at obstruction does not defeat the materiality of the
misinformation offered. See Flores-Flores, 5 F.3d at 1368 (holding that
“[m]ateriality in the context of false information is not determined by whether the
authorities somehow manage to ferret out accurate information prior to a
defendant’s first court appearance”).
2
Since the same judge sentenced both Perea-Vivas and Villota-Gomez,
that judge would seem uniquely qualified to make the factual assessment of
whether Perea-Vivas’s statement, if believed, would “tend to influence or affect
the issue under determination.” USSG § 3C1.1, comment. (n.6); see also Flores-
Flores, 5 F.3d at 1368.
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Nor does the generality of Perea-Vivas’s statements render clearly
erroneous the district court’s factual finding of materiality. We have held that
“to sustain a USSG § 3C1.1 enhancement, a defendant need not provide a story
that when believed, would fully exculpate his or her codefendant. Rather, it is
enough that a defendant provides false information bearing on the extent of the
codefendant’s criminal liability.” United States v. Shumway, 112 F.3d 1413,
1426 (10th Cir. 1997) (citing Bernaugh, 969 F.2d at 862). As in Bernaugh, 969
F.2d at 862, “[i]n order to avoid making incriminating statements as to the roles
of his codefendants, [the defendant], while testifying under oath, chose to provide
false information to the court . . . partly in hope that if he were believed his
codefendants would avoid criminal punishment.” The fact that such hope was
ephemeral does not defeat findings of materiality and intent. See id.
While the false statements at issue in Shumway and Bernaugh were
arguably more detailed and extensive than those before us in this case, the level
of detail is not solely determinative of whether information would, “if
believed, . . . tend to influence or affect the issue under determination.” USSG
§ 3C1.1, comment. (n.6). Under Shumway and Bernaugh, therefore, there is no
clear error in the district court’s finding of materiality.
C. Intent
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An enhancement under § 3C1.1 requires willful intent to mislead. See
Cerrato-Reyes, 176 F.3d at 1263; Flores-Flores, 5 F.3d at 1368 n.5 . The
government must demonstrate “that the defendant consciously acted with the
purpose to obstruct justice.” United States v. Hernandez, 967 F.2d 456, 459 (10th
Cir. 1992) (citing United States v. Gardiner, 931 F.2d 33, 35 (10th Cir. 1991)).
“[C]entral to the willfulness inquiry ‘[is] the defendant’s knowledge of the
requirements placed upon him by the court and his conscious decision to ignore
its mandate.’” United States v. Taylor, 997 F.2d 1551, 1560 (10th Cir. 1993)
(quoting United States v. Monroe, 990 F.2d 1370, 1376 (D.C. Cir. 1993)). Thus,
there must be “the willful intent to provide false testimony, rather than as a result
of confusion, mistake, or faulty memory” to sustain the enhancement. United
States v. Dunnigan, 507 U.S. 87, 94 (1993); see Arias-Santos, 39 F.3d at 1076-77.
Perea-Vivas’s principal argument regarding lack of intent proceeds as
follows: Villota-Gomez’s guilty plea indicates that she knew of the drugs, but
does not prove that Perea-Vivas knew that she knew. Therefore, while Perea-
Vivas’s statement was false, there is no proof it was intentionally false, as he
might have (wrongly) believed it true, and there is nothing but inference to impute
to him knowledge of her knowledge.
While it is true that the knowledge and therefore requisite intent are only
imputed to Perea-Vivas by inference, the inferences mustered by the government
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are sufficiently strong to uphold against clear error review the conclusion that he
knew that Villota-Gomez was involved in smuggling the drugs. First, Perea-
Vivas apparently spoke little English and had been in the country only a short
time, and therefore the government suggests it was unlikely that anyone would
entrust him alone with over a million dollars in cocaine. Second, only Villota-
Gomez had the directions and pager number to meet their delivery contact in
Kansas city. The fact that she had this information, and made false and vague
statements regarding their destination, strongly suggests that she was not, as
Perea-Vivas asserts, merely his dupe. For he did more than simply profess
ignorance of her involvement; he affirmatively testified that he had fooled her
into participating.
While the government or the court might have obtained additional evidence
of Perea-Vivas’s knowledge of Villota-Gomez’s involvement through further
questioning of Villota-Gomez, the government’s burden of demonstrating
grounds for an enhancement does not require all potentially available evidence,
only a preponderance of the evidence. 3 See, e.g., United States v. Pelliere, 57
3
Perea-Vivas also relies on the fact that in Bernaugh, the co-defendants
were prepared to go to trial, whereas Villota-Gomez was already prepared to
plead guilty. This distinction does not defeat the finding of willful intent. While
it appears obvious that the court had ample reason not to believe appellant’s
assertions of Villota-Gomez’s ignorance, the focus in assessing imposition of a §
3C1.1 enhancement is on the purpose and possible effect of his statements, not
their actual effect. See, e.g., Flores-Flores, 5 F.3d at 1368; Bernaugh, 969 F.2d
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F.3d 936, 938 (10th Cir. 1995). The evidence in this case is sufficient to sustain
against clear error review the district court’s conclusion that the government’s
burden was met with respect to the element of willfulness. Therefore, we defer
to the district court’s finding that Perea-Vivas willfully and intentionally
provided false information to the court regarding Villota-Gomez’s role in the
crime. See Bernaugh, 969 F.2d at 861-62.
III
Perea-Vivas’s sentence is AFFIRMED. 4
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
at 862.
4
The government’s motion to supplement the record is granted.
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