UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-20812
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO HUERTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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July 27, 1999
Before GARWOOD, DUHÉ, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Pablo Huerta appeals the sentence imposed upon him by the
district court. He argues that his flight from arresting officers
did not constitute obstruction of justice and therefore did not
warrant an offense-level enhancement under section 3C1.1 of the
United States Sentencing Guidelines. We affirm.
I
Huerta pleaded guilty, without a written plea agreement, to
being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). According to Huerta’s presentence report (PSR), on
December 5, 1997, Freddie Woodard was riding his bicycle in an
apartment complex in Houston, Texas. Huerta approached Woodard,
pointed a gun at him, and demanded his bicycle. Woodard
surrendered the bicycle and ran for safety. Minutes later, Woodard
saw two Houston patrol officers and informed them of the robbery.
The officers entered and searched a building on the southern
side of the complex and found Woodard’s bicycle at the bottom of a
stairway. The officers noticed Huerta on the top balcony,
attempting to hide. Woodard identified Huerta as the robber. The
officers found that Huerta had hidden a .357 Magnum Taurus revolver
under a doormat. The weapon contained six unfired .357 Magnum
Winchester/hollow point cartridges. The officers handcuffed
Huerta, took him into custody, and transported him to the nearby
Houston Police Department storefront. As the officers were leading
Huerta into the storefront, Huerta ran from them. One of the
officers chased Huerta approximately 250 yards and apprehended him.
Based on Huerta’s flight, the PSR recommended a two-point
upward adjustment for obstruction of justice.1 Huerta objected to
the recommended increase. He did not concede that he had fled from
the arresting officers but argued that, even if he had, the alleged
conduct constituted a mere attempt to avoid arrest that would not
1
The PSR cited section 3C1.2 of the Sentencing Guidelines to
support this recommendation. The Addendum to the PSR acknowledged
that its reference to section 3C1.2 resulted from a typographical
error and that section 3C1.1 was the correct authority for its
recommendation.
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support an obstruction-of-justice enhancement under section 3C1.1
of the Sentencing Guidelines. That section directs a two-level
enhancement “[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.” U.S. Sentencing Guidelines Manual § 3C1.1 (1997).
At the sentencing hearing, Huerta’s counsel asserted that
Huerta had not run from the officers. Counsel stated that there
was no evidence of flight other than “some report” and that the
government should be required to produce evidence of the alleged
conduct, instead of relying solely on the PSR. Citing an
application note following section 3C1.1, counsel further posited
that, even if the court accepted the PSR, mere flight to avoid
apprehension does not constitute obstruction of justice.
The district court, concluding that the PSR adequately
addressed the issue of Huerta’s flight, declined to hold an
evidentiary hearing. The court then overruled Huerta’s objection
and applied section 3C1.1's two-point adjustment for obstruction of
justice. Based on a total offense level of twenty-four, a criminal
history category of five, and a resulting guideline imprisonment
range of ninety-two to 115 months, the district court sentenced
Huerta to a 115-month term of imprisonment. Huerta filed a timely
notice of appeal.
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II
We address whether the district court erred in relying on the
PSR as the basis for the challenged enhancement and whether
Huerta’s conduct may constitute obstruction of justice under
section 3C1.1.
This Court reviews the district court’s interpretation or
application of the Sentencing guidelines de novo and its factual
findings, such as a finding of obstruction of justice, for clear
error. See United States v. Upton, 91 F.3d 677, 687 (5th Cir.
1996). As long as a factual finding is plausible in light of the
record as a whole, it is not clearly erroneous. See United States
v. Alford, 142 F.3d 825, 831 (5th Cir. 1998). We uphold a sentence
unless it was imposed in violation of law or as a result of an
incorrect application of the Sentencing Guidelines or it is outside
the range of the applicable guideline and is unreasonable. See
United States v. Garcia, 962 F.2d 479, 480-81 (5th Cir. 1992).
“[C]ommentary in the Guidelines Manual that interprets or explains
a guideline is authoritative unless it violates the Constitution or
a federal statute, or is inconsistent with, or a plainly erroneous
reading of, that guideline.” Stinson v. United States, 508 U.S. 36,
38, 113 S. Ct. 1913, 1915 (1993).
A
According to Huerta, it was error for the district court to
rely on the PSR and apply the section 3C1.1 enhancement without
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requiring the government to present proof beyond the PSR.
As a general rule, a PSR bears sufficient indicia of
reliability, such that a sentencing judge may consider it as
evidence in making the factual determinations required by the
Sentencing Guidelines. See Alford, 142 F.3d at 831-32. Federal
Rule of Criminal Procedure 32(c)(1) provides:
At the sentencing hearing, the court must afford counsel
for the defendant and for the Government an opportunity
to comment on the probation officer’s determinations and
on other matters relating to the appropriate sentence,
and must rule on any unresolved objections to the
presentence report. The court may, in its discretion,
permit the parties to introduce testimony or other
evidence on the objections. For each matter
controverted, the court must make either a finding on the
allegation or a determination that no finding is
necessary because the controverted matter will not be
taken into account in, or will not affect, sentencing.
A district court may rely on a presentence report to satisfy Rule
32. See, e.g., United States v. Brito, 136 F.3d 397, 415-17 (5th
Cir.) (“In order to satisfy Rule 32, the court may make implicit
findings by adopting the PSR.”), cert. denied, – U.S. –, 118 S. Ct.
1817 (1998). We have also held:
Although a district court must resolve disputed issues of
fact if it intends to use those facts as a basis for
sentencing, the court can adopt facts contained in a PSR
without inquiry, if those facts ha[ve] an adequate
evidentiary basis and the defendant does not present
rebuttal evidence.
United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994).
A defendant’s rebuttal evidence must demonstrate that the
information contained in the PSR is “materially untrue, inaccurate
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or unreliable,” and “[m]ere objections do not suffice as competent
rebuttal evidence.” United States v. Parker, 133 F.3d 322, 329
(5th Cir. 1998) (citations omitted).
Huerta’s written but unsworn objections to the PSR stated only
that “the defendant does not concede that he attempted to flee.”
At the sentencing hearing, defense counsel asserted that Huerta had
not fled and requested that the district court direct the
government to produce witnesses who would substantiate the PSR’s
assertion that Huerta had run from the police officers. Because
Huerta failed to proffer adequate rebuttal evidence, the district
court erred neither in refusing to require the government to
produce witnesses nor in relying on the factual information
provided by the PSR. See United States v. Mitchell, 166 F.3d 748,
754 (5th Cir. 1999) (“If the defendant does not submit affidavits
or other evidence to rebut the information in the PSR, the district
court may adopt its findings without further inquiry or
explanation.”); see also United States v. Ayala, 47 F.3d 688, 690
(5th Cir. 1995) (“The defendant bears the burden of demonstrating
that the PSR is inaccurate; in the absence of rebuttal evidence,
the sentencing court may properly rely on the PSR and adopt it.
The court is free to disregard a defendant’s unsworn assertions
that the PSR is unreliable.”). The district court’s finding that
the defendant fled is not clearly erroneous.
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B
Huerta next argues that his conduct did not warrant the two-
level enhancement under section 3C1.1 of the United States
Sentencing Guidelines. According to Huerta, his flight did not
constitute obstruction of justice within the meaning of the
guideline.
The commentary following section 3C1.1 provides non-exhaustive
examples of conduct to which the obstruction-of-justice adjustment
is intended to apply, as well as conduct to which it is not
intended to apply.2 Application Note 3(e) instructs that the
adjustment applies to “escaping or attempting to escape from
custody before trial or sentencing; or willfully failing to appear,
as ordered, for a judicial proceeding.” Application Note 4(d),
however, indicates that the type of conduct that ordinarily does
not warrant the adjustment includes “avoiding or fleeing from
arrest.”
Huerta does not dispute that he was in custody but argues that
his conduct nonetheless fits within Application Note 4(d) because
his flight was brief, spontaneous, and contemporaneous with his
arrest. Whether Huerta’s flight may constitute obstruction of
justice within the meaning of § 3C1.1 of the United States
2
The PSR and the district court relied on the 1997 Guidelines
Manual to calculate the defendant’s sentence. We refer to the
application notes as they appear in that manual. The subsequent
amendments to the commentary accompanying section 3C1.1 do not
affect our resolution of the issue presented.
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Sentencing Guidelines is res nova in this circuit. See United
States v. Pierce, 893 F.2d 669, 677 (5th Cir. 1990) (leaving open
the question whether flight alone constitutes obstruction of
justice under section 3C1.1). There is a split among those
circuits that have addressed this question. One line of authority
determines the propriety of applying the enhancement by focusing on
whether the defendant was in custody at the time of his flight.
See United States v. McDonald, 165 F.3d 1032 (6th Cir. 1999);
United States v. Williams, 152 F.3d 294, 304 (4th Cir. 1998).
Another line of cases focuses on whether the defendant’s acts were
calculated, as opposed to spontaneous and instinctive. See, e.g.,
United States v. Draves, 103 F.3d 1328 (7th Cir.), cert. denied, –
U.S. –, 117 S. Ct. 2528 (1997); United States v. Stroud, 893 F.2d
504 (2d Cir. 1990). We agree with the approach taken by the Fourth
and Sixth Circuits and “read the commentaries as recognizing a
clear dichotomy between the state of being arrested and that of
being in custody.” Williams, 152 F.3d at 304. We therefore hold
that flight from law enforcement officers who, pursuant to a lawful
arrest, have exercised custody over the defendant may constitute
obstruction of justice under section 3C1.1, even if such flight
closely follows the defendant’s arrest.
Huerta notes that we have held that the section 3C1.1
enhancement is appropriate only when the defendant’s conduct is
willful. See United States v. Greer, 158 F.3d 228, 239 (5th Cir.
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1998); United States v. O’Callaghan, 106 F.3d 1221, 1223 (5th Cir.
1997). He argues that the district court’s focus on the question
of custody amounted to a misapplication of the guideline because it
did not explicitly address the issue of willfulness. We agree that
the question whether a defendant’s flight was an escape from
custody may not be a precise substitute for the question whether a
defendant willfully obstructed or attempted to obstruct justice.
Before the district court, however, Huerta neither suggested that
his conduct was not willful nor objected to the absence of a
specific finding of willfulness.
To the extent that Huerta’s complaint pertains to the district
court’s failure to make an explicit finding that he had the
specific intent to obstruct justice, we review for plain error
because Huerta did not raise this issue before the district court.
See United States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770,
1776 (1993). Pursuant to Federal Rule of Criminal Procedure 52(b),
this Court may correct forfeited errors only when the defendant
demonstrates that (1) there is an error, (2) the error is plain,
and (3) the error affects substantial rights. See id. at 732-35,
113 S. Ct. at 1776-78; United States v. Calverly, 37 F.3d 160, 162-
64 (5th Cir. 1994) (en banc). If the defendant makes this showing,
we have discretion to correct the error and will do so if the error
“seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Ravitch, 128 F.3d 865, 869
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(5th Cir. 1997) (per curiam). In the context of sentencing, we
uphold offense-level enhancements if “the record as a whole
demonstrates that the adjustments did not result in a miscarriage
of justice.” United States v. Pattan, 931 F.2d 1035, 1043 (5th
Cir. 1991). There is no evidence in the record that Huerta’s
flight was not volitional or that it was motivated by anything
other than a desire to impede the administration of justice--that
is, to avoid the prosecution that would have inevitably followed
his arrest. Although we have expressed a clear preference that a
sentencing court make a specific finding of willfulness in applying
section 3C1.1, see Greer, 158 F.3d at 239, any error in not doing
so in Huerta’s case did not result in a miscarriage of justice.
III
For the foregoing reasons, we conclude that the district court
did not err in finding that Huerta’s conduct constituted an escape
from custody warranting the obstruction-of-justice enhancement
under section 3C1.1 of the United States Sentencing Guidelines. We
therefore AFFIRM.
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