IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-41119
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE JESUS LOPEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(M-97-CR-58-1)
_________________________________________________________________
February 23, 1999
Before KING, Chief Judge, REAVLEY and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Lopez pled guilty to conspiracy to possess with the
intent to distribute marijuana and was sentenced to sixty months’
imprisonment. Lopez appeals, arguing that the district court
erred in enhancing his sentence for obstruction of justice and in
refusing to depart from the statutory minimum. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 31, 1997, the United States Customs Service
discovered marijuana concealed in the interior walls of a tractor
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
trailer at a port of entry from Mexico. The agents did not
remove the marijuana, and they followed the tractor trailer as
Neri Garcia drove it to Jose Lopez’s residence in Mission, Texas
on February 3, 1997. Lopez’s wife, Sara Lopez-Peregrina (Sara
Lopez), drove Garcia to his residence while the trailer remained
at Lopez’s residence.
On February 4, 1997, agents observed Lopez and Sara Lopez’s
brother, Gilberto Peregrina, work on the air conditioning unit of
the trailer for several hours. Upon completion, Peregrina
boarded the trailer and agents heard him dismantling the
trailer’s inner walls. Lopez claims that he returned to the
house and asked his wife to take a glass of water to Peregrina in
the trailer. The agents claim that Lopez was in the vicinity of
the trailer when Sara Lopez approached it, and they observed Sara
Lopez board the trailer and place packages of marijuana in large
plastic bags. The agents state that, after inspecting the
trailer, Lopez entered his residence, followed by Sara Lopez and,
shortly thereafter, Peregrina.
Lopez consented to the agents’ search of his property, which
revealed 159 kilograms of marijuana on the floor of the trailer
and another 167 kilograms still hidden in the trailer’s interior
walls. Lopez, Sara Lopez, and Peregrina were taken into custody.
In post-arrest statements, Jose and Sara Lopez indicated that
Garcia had agreed to pay them to remove and store the marijuana.
Peregrina told agents that he had been recruited by Lopez.
2
On April 7, 1997, Lopez agreed to plead guilty to conspiracy
to possess with the intent to distribute more than 100 kilograms
but less than 1000 kilograms of marijuana. Lopez also provided
substantial assistance to the government and agreed to testify
against Garcia. The government agreed to recommend at sentencing
that Lopez was a minor participant, that he should receive
maximum credit for acceptance of responsibility, and that he
should receive a sentence at the low end of the applicable
guideline.
During Lopez’s rearraignment hearing before Judge Hinojosa
the following day, the government stated that Sara Lopez assisted
in the dismantling and removal of marijuana from the false
compartment in the trailer. Lopez responded that Sara Lopez was
not included in the criminal enterprise and that she had only
taken water to the trailer. The district court told Lopez that
it “suspect[s] the other co-defendants are going to testify
differently, so you had better . . . tell the truth” in future
testimony or the court would deny any motion to depart at
sentencing.
Lopez testified at Sara Lopez’s jury trial, also before
Judge Hinojosa, on May 9, 1997. Lopez stated that Garcia had
brought the trailer to his house and asked him to repair the
trailer’s refrigeration unit two days before Lopez’s arrest.1
1
Lopez was arrested on February 4, 1997. Government agents
following the trailer reported that the trailer was driven to
Lopez’s residence on February 3, 1997 and that the refrigeration
unit was repaired on February 4, 1997. Although Lopez offered
inconsistent testimony as to the chronology of these events (and
3
Lopez testified that he and Sara Lopez met with Garcia on the
following day and that Garcia told them there was marijuana in
the trailer and offered Lopez $5000 to remove its interior walls.
Lopez testified that his wife asked him to not accept Garcia’s
offer and that he refused it. Lopez testified that Garcia
visited Lopez on the following day and again requested that he
remove the trailer’s interior panels, and that he again refused.
Lopez stated that on the following day, he worked on the
refrigeration unit and Garcia repeated his offer. Lopez then
consented to remove the walls.
Lopez testified that Garcia showed him and Peregrina how to
remove the interior walls of the trailer while his wife was
inside the house. Lopez testified that he returned to the house
and asked his wife to take Peregrina some water when Peregrina
was working inside the trailer. Lopez testified that he went
outside to clean the yard and saw Sara Lopez walk to the back of
the trailer, but that he did not know whether she entered the
trailer. Lopez stated that she was gone between twenty and
thirty minutes. Lopez testified that he did not discuss his
agreement to unload the marijuana with his wife. The jury
acquitted Sara Lopez of all drug-related charges.
The Presentence Investigation Report found that the total
offense level under the sentencing guidelines for Lopez’s
conviction is twenty-one, and the probation office recommended a
his testimony was itself inconsistent), the district court did
not consider this aspect of his testimony in determining that he
committed perjury regarding Sara Lopez’s involvement.
4
sentence of thirty-seven months followed by three years
supervised release.2 The probation office stated that it “ha[d]
no information to suggest that the defendant impeded or
obstructed justice,” and that the defendant had debriefed with
the government and appeared to meet the other requirements set
forth in § 5C1.2 to avoid a statutory minimum sentence. See 21
U.S.C. §§ 841, 846 (providing for a minimum sentence of five
years’ imprisonment followed by four years of supervised
release). The government filed a motion for a downward departure
pursuant to § 5K1.1 based on the substantial assistance provided
by Lopez during his debriefing and his agreement to testify
against his co-conspirators. The government requested that the
court sentence Lopez below the statutorily required minimum
sentence and the authorized guideline range.
2
Under § 2D1.1(a)(3), the appropriate base offense level
for Lopez’s conviction is twenty-six. The probation office
decreased this level by two because it determined that Lopez had
debriefed with the government and otherwise met the criteria set
forth in § 5C1.2. See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(b)(4)
(1995) (providing for a two-level decrease when defendant meets
criteria set forth in § 5C1.2); U.S. SENTENCING GUIDELINES MANUAL
§ 5C1.2 (1995) (providing that “the court shall impose a sentence
in accordance with the applicable guidelines without regard to
any statutory minimum sentence” if the defendant, inter alia,
“has truthfully provided to the Government all information and
evidence the defendant has concerning the offense”). The
probation office also reduced Lopez’s offense level by three
because he accepted responsibility and timely notified
authorities of his intention to plead guilty. See U.S. SENTENCING
GUIDELINES MANUAL § 3E1.1 (1995). The applicable guideline
imprisonment range for a defendant with a total offense level of
twenty-one and a criminal history score placing him in category I
is thirty-seven to forty-six months. See U.S. SENTENCING GUIDELINES
MANUAL Ch. 5, Pt. A (1995).
5
At the sentencing hearing on June 2, 1997, the district
court questioned the motion for departure and stated that it had
determined that Lopez lied at his wife’s trial concerning her
involvement in the drug offense. The government asserted that
its motion was based on Lopez’s assistance “in the early stages
of the prosecution.” The district court rejected the
government’s argument, however, and stated that it was
considering enhancing Lopez’s sentence for obstruction of justice
and would not consider a motion to depart without the testimony
of a customs agent assigned to the case. The court asserted that
“[h]e doesn’t live with Sara Lopez and not have a discussion with
her about the marijuana transaction. That’s not real life . . .
that is not the way life is.”
The government stated at a second hearing on June 19, 1997
that Garcia and his wife told the agents that Sara Lopez had
offered to split $5025 with Garcia if he would help them unload
the marijuana. Although the government asserted there was “a
conflict in their two versions of what happened,” it stated its
view that there was not enough evidence to charge Lopez with
perjury. A customs agent, Roy Rivera, testified as follows
regarding Sara Lopez’s knowledge of Lopez’s agreement with
Garcia:
Mr. Rivera: Well, Sara Lopez specifically said [following
her arrest] that [Garcia] was going to pay her husband
the money and she knew that.
The Court: And when you ques --
Mr. Rivera: And she knew that she -- that her husband was
going to get this money for them.
The Court: -- and when you questioned her, this was in --
they were together or --
6
Mr. Rivera: No sir, they were separate.
The Court: You[] questioned them separately?
Mr. Rivera: And their stories were very identical, other
than she basically said she had nothing to do with it
and she didn’t do anything at the back of the trailer.
The Court: But that she knew that her husband was getting
money from Neri Garcia?
Mr. Rivera: Oh, yes, sir.
The Court: And did she indicate to you how she knew that?
Mr. Rivera: No, she didn’t. Other than -- Well, yes, I’m --
she said that she knew this from her husband.
The government stated, and Rivera agreed, that it “believed that
[Lopez] didn’t see what Sara [Lopez] was doing in that trailer.
I don’t believe he was ever in a position to do that. I think
where he hedged and fudged and didn’t tell the truth was about
Sara’s involvement in the agreement to unload the trailer,” and
that Sara Lopez actively participated with her husband in
agreeing to unload the trailer.
The district court ultimately concluded that Lopez lied in
his testimony regarding his wife’s knowledge of the drug
transaction. On June 30, 1997, the court stated that Lopez and
his wife “participated in it together” and that Lopez “knew that
his wife was involved in it.” The court stated that it did not
“buy the story” that Sara Lopez had only gone to the trailer to
bring Peregrina water. The court further stated that it did not
believe Lopez’s assertion that he was unable to bring Peregrina
water because he had difficulty carrying objects (Lopez has an
amputated leg), noting that Lopez admits he performed yard work.
The court also found that Lopez’s testimony that his wife was
present when Garcia initially made the offer conflicted with his
7
statement during cross-examination that his wife was in the car.3
The court determined that Lopez’s testimony was “an attempt to
exculpate her when she was involved in this transaction.”
Lopez argued to the district court that the court should not
believe Garcia’s testimony because Garcia testified against Sara
Lopez “to pay them back” because Lopez significantly contributed
to the government’s case and had committed himself to testify
against Garcia. The government agreed that Lopez had caused
Garcia to change his mind and plead guilty. Nonetheless, the
district court found that Garcia’s testimony of Sara Lopez’s
involvement was consistent with her activities in the trailer,
and the court noted that no agent had reported seeing a glass of
water as Sara Lopez walked to the trailer.
The court found that Lopez committed perjury in his
testimony at his wife’s trial. The court then denied the
government’s motion to depart and enhanced Lopez’s sentence for
obstruction of justice, resulting in a total offense level of
twenty-five and a recommended sentence of fifty-seven to seventy-
one months. The court found that the Lopez did not qualify under
§ 5C1.2 and that therefore the statutory minimum sentence of
3
Specifically, Lopez testified on cross-examination as
follows:
Q (prosecutor): And then, there came a time after [talking
to Garcia about repairing the refrigeration unit] when
you and Sara were present and he offered you $5,000 for
unloading the marijuana from the walls?
A (Lopez): Yes, sir.
Q: Okay. So she knew there was marijuana in the trailer?
She was present when that took place?
A: She was in the car.
8
sixty months applied. The court sentenced Lopez to sixty months’
imprisonment followed by four years of supervised release. Lopez
timely appeals.
II. DISCUSSION
Lopez argues that the district court erred by enhancing his
sentence for obstruction of justice and refusing to disregard the
statutory minimum sentence under the safety valve provision in
§ 5C1.2. Lopez asserts that no reliable evidence supports the
district court’s finding that Lopez knew the extent of his wife’s
involvement in the transaction and that its finding that he
committed perjury was therefore clearly erroneous. Lopez further
contends that the district court failed to support the
enhancement with sufficient factual findings on the elements of
obstruction of justice.4
4
Lopez also argues on appeal that the district court’s
reliance on a Sixth Circuit case holding that obstruction of
justice during the investigation, prosecution, or sentencing of
the “instant offense” under § 3C1.1 may include false testimony
offered at a co-defendant’s trial “raises retroactivity
questions” because that decision was issued after Lopez was
arrested. See United States v. Walker, 119 F.3d 403, 406-07 (6th
Cir.), cert. denied, 118 S. Ct. 643 (1997). We find no merit in
this argument because other circuit courts had reached the same
conclusion prior to Lopez’s offense. See United States v. Acuna,
9 F.3d 1442, 1446 (9th Cir. 1993) (applying § 3C1.1 where
defendant testified falsely regarding co-conspirator’s conduct at
co-conspirator’s trial); United States v. Bernaugh, 969 F.2d 858,
861 (10th Cir. 1992) (“[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.”).
Furthermore, we note that a recent amendment to the sentencing
guidelines clarifies that the “instant offense” includes false
testimony at a co-defendant’s trial. See U.S. SENTENCING GUIDELINES
MANUAL § 3C1.1 & commentary (1998).
9
A. Standard of Review
We review the district court’s factual determination that a
defendant obstructed justice under § 3C1.1 for clear error. See
United States v. Gonzalez, 163 F.3d 255, 263 (5th Cir. 1998);
United States v. Powell, 124 F.3d 655, 667 (5th Cir. 1997), cert.
denied, 118 S. Ct. 1082 (1998). We also review the district
court’s refusal to apply the safety valve provision under § 5C1.2
for clear error. See United States v. Torres, 114 F.3d 520, 527
(5th Cir. 1997). “A factual finding is not clearly erroneous as
long as it is plausible in the light of the record read as a
whole.” United States v. Lowder, 148 F.3d 548, 552 (5th Cir.
1998) (quoting United States v. Cluck, 143 F.3d 174, 180 (5th
Cir. 1998)). If the district court’s factual determination is
plausible in light of the entire record, we may not reverse it
even if we are convinced that had we been sitting as the trier of
fact, we would have weighed the evidence differently. See United
States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996). Furthermore,
“[c]redibility determinations in sentencing hearings ‘are
peculiarly within the province of the trier-of-fact.’” United
States v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996) (quoting
United States v. Sarasti, 869 F.2d 805, 807 (5th Cir. 1989)).
B. Obstruction of Justice
Under § 3C1.1, “[i]f the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration
of justice during the investigation, prosecution, or sentencing
of the instant offense,” the offense level is increased by two
10
levels. The commentary to § 3C1.1 specifically provides that
“committing, suborning, or attempting to suborn perjury” is
conduct to which this enhancement applies. A witness testifying
under oath or affirmation commits perjury if he or she “gives
false testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.” See United States v.
Dunnigan, 507 U.S. 87, 94 (1993). “If a district court finds
that a defendant has committed perjury at trial, an enhancement
is required under section 3C1.1.” United States v. Storm, 36
F.3d 1289, 1295 (5th Cir. 1994).
We have carefully reviewed the record and cannot say that
the district court’s determination that Lopez committed perjury
at his wife’s trial was clearly erroneous. The district court
had the benefit of hearing Lopez’s original testimony in his
wife’s trial and the contradictory testimony of other witnesses,
including Garcia. Furthermore, the district court held several
sentencing hearings and sought the testimony of a customs agent
assigned to Lopez’s case to determine whether he lied about his
wife’s role in the criminal enterprise. The court determined
that Lopez’s testimony was inconsistent with the customs agents’
observations of Sara Lopez’s activities in the trailer. The
court found Lopez’s description of his wife’s role implausible
considering their relationship, the failure of any agents to see
the water Lopez claimed she carried, and Lopez’s apparent ability
to perform yard work and other tasks. Furthermore, the district
11
court was firmly convinced that Lopez intentionally (and
successfully) lied about his wife’s knowledge and role in the
transaction. See United States v. Garcia, 902 F.2d 324, 326 (5th
Cir. 1990) (affirming obstruction of justice enhancement where,
“[a]lthough the evidence concerning [the defendant’s] statements
about the prior arrest is conflicting, the record clearly
indicates that the trial judge was firmly convinced [that he]
intentionally lied about the arrest”). We therefore determine
that the district court’s finding that Lopez committed perjury at
his wife’s trial is plausible in light of the record.
Lopez argues that the district court did not include
specific factual findings or language indicating that the proper
factual predicates were established in support of its finding
that he committed perjury at his wife’s trial. See Dunnigan, 507
U.S. at 95 (“[I]f a defendant objects to a sentence enhancement
resulting from her trial testimony, a district court must review
the evidence and make independent findings necessary to establish
a willful impediment to, or obstruction of, justice . . . under
the perjury definition we have set out.”). We find no merit to
this argument. Although the Supreme Court has stated that “it is
preferable for a district court to address each element of the
alleged perjury in a separate and clear finding,” the Court
recognized that a finding of obstruction that “encompasses all of
the factual predicates for a finding of perjury” is sufficient.
Id. at 95; see also United States v. Como, 53 F.3d 87, 89 (5th
Cir. 1995) (“A separate and clear finding on each element of the
12
alleged perjury, although preferable, is not required.”). The
district court considered the evidence and determined that Lopez
intentionally provided false testimony regarding his wife’s
involvement in the criminal enterprise, thus encompassing the
necessary factual predicates for its finding of perjury.
C. The Safety Valve Provision
Section 5C1.2 provides that a court “shall impose a sentence
in accordance with the applicable guidelines without regard to
any statutory minimum sentence” for certain offenses if the
defendant, inter alia, “truthfully provide[s] to the Government
all information and evidence the defendant has concerning the
offense or offenses that were part of the same course of conduct
or of a common scheme or plan.” U.S. SENTENCING GUIDELINES MANUAL
§ 5C1.2 (1995). Lopez argues that he qualified under the safety
valve provision and that the district court erred in refusing to
depart from the statutory minimum sentence of sixty months’
imprisonment.
The district court determined that Lopez did not truthfully
provide all information he had concerning the criminal enterprise
because he consistently minimized his wife’s role and lied about
her activities. Because we have already found that the district
court’s determination that Lopez lied about his wife’s
involvement is plausible in light of the record, we must
similarly conclude that the district court did not clearly err by
refusing to depart from the statutory minimum sentence under
§ 5C1.2.
13
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment and
sentence of the district court.
14