FILED
NOT FOR PUBLICATION FEB 26 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50055
Plaintiff - Appellee, D.C. No. 2:11-cr-00489-GAF-1
v.
MEMORANDUM*
ROBERTO O. HERNANDEZ GUILLEN,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted February 3, 2014
Pasadena, California
Before: SCHROEDER and CLIFTON, Circuit Judges, and TUNHEIM, District
Judge.**
Defendant-Appellant Carlos Javier Amaral Vasquez (“Defendant”), whose
real name is Roberto Ovidio Hernandez-Guillen, appeals his 78-month sentence,
arguing that the district court erred in adjusting his sentence upward two levels for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
obstruction of justice pursuant to United States Sentencing Guidelines (“U.S.S.G.”)
§ 3C1.1. We have jurisdiction under 28 U.S.C. § 1291. After reviewing the
district court’s factual determinations under Section 3C1.1 for clear error and the
district court’s “characterization of a defendant’s conduct as obstruction of justice
within the meaning of Section 3C1.1” de novo, United States v. Cordova Barajas,
360 F.3d 1037, 1043 (9th Cir. 2004) (alteration and citation omitted), we affirm.
Defendant argues that the enhancement for obstruction of justice was
inappropriate because the misrepresentation as to his identity was made solely by
his counsel at trial. But the record supported the conclusion that Defendant
“consciously act[ed] with the purpose of obstructing justice,” United States v.
Draper, 996 F.2d 982, 984 (9th Cir. 1993) (emphasis and citation omitted), and
“helped bring about or cause,” United States v. Reyes, 577 F.3d 1069, 1082 (9th
Cir. 2009), the misrepresentation. Defendant affirmatively misstated his own
identity in several court appearances. Although the district court did not rely
specifically on these misstatements in imposing the enhancement, it found that
Defendant was aware of his false identity and had previously used it for gain.
Because the record contained sufficient evidence of Defendant’s involvement in
procuring and using the false identity, it was not clear error for the district court to
conclude that Defendant plainly caused or induced his counsel’s
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misrepresentations regarding Defendant’s identity at trial. Based on this factual
determination, Defendant’s conduct is properly characterized as an obstruction of
justice under U.S.S.G. § 3C1.1.
Defendant also argues that application of the enhancement violated his Fifth
Amendment right against self-incrimination because the district court based the
enhancement on its finding that Defendant had “either induced the making of [the
misrepresentations] or stood silently by while they were done during the course of
this trial.” Because we conclude that the record was sufficient to support
application of the enhancement based on Defendant’s inducement of counsel, we
need not decide whether the enhancement would have been permissible under the
Fifth Amendment if premised solely on Defendant’s action in standing silently by.
See United States v. Nichols, 464 F.3d 1117, 1122 (9th Cir. 2006) (explaining that
with respect to sentencing enhancements “we may affirm on any ground supported
by the record, even if it differs from the rationale of the district court” (quoting
Moran v. McDaniel, 80 F.3d 1261,1268 (9th Cir. 1996))).
AFFIRMED.
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