USCA1 Opinion
UNITED STATES OF COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1053
UNITED STATES,
Appellee,
v.
JUAN JOSE RESTREPO, A/K/A JAIME VALENCIA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Boudin, Circuit Judges. ______________
____________________
Anthony M. Cardinale and Nicholas J. DiMauro on brief for ____________________ ___________________
appellant.
Donald K. Stern, United States Attorney, and Emily R. Schulman, _______________ __________________
Assistant United States Attorney, on brief for appellee.
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March 24, 1995
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Per Curiam. Defendant-appellant Jaime Valencia pled ___________
guilty to conspiracy to possess cocaine with intent to
distribute it. See 21 U.S.C. 846. The district court ___
sentenced appellant to 188 months imprisonment followed by a
period of supervised release. Valencia now appeals, arguing
that the district court erred in increasing his offense level
under U.S.S.G. 3C1.1 for obstruction of justice. For the
following reasons, we affirm.
I.
Valencia was arrested on August 31, 1991 following a
government "sting" operation. On September 3, 1991, prior to
his initial appearance before a magistrate judge, a pretrial
services officer interviewed him for the purpose of making a
recommendation about his pretrial release. Valencia provided
false identifying information during this interview,
including the false name "Juan Jose Restrepo." The pretrial
services officer prepared a report which stated that "a
record check reveals no criminal history." The report,
however, recommended that Valencia, referred to as
"Restrepo," be detained on the grounds that he presented a
risk of flight and danger to the community.
At the initial appearance, the government moved for a
detention hearing under 18 U.S.C. 3142(f). This hearing
was held before the magistrate judge on September 11, 1991.
When asked to spell his name, Valencia, who was under oath,
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responded, "R-E-S-T-R-E-P-O." Counsel for Valencia cross-
examined the government's sole witness, Special Agent Russell
Protentis. At the conclusion of the hearing, Valencia
consented to the entry of an order of detention, reserving
his right to produce conditions of release at a later time.
On February 7, 1992, an FBI investigation revealed his true
identity, as well as the fact that he was a fugitive from
drug and firearm charges in New York.
Valencia pled guilty on April 8, 1993. His presentence
investigative report recommended a two level increase under
U.S.S.G. 3C1.1 for obstruction of justice. A sentencing
hearing was conducted, and sentence was imposed, on November
9, 1993. The district court found that at least two events
made an upward adjustment under 3C1.1 appropriate. The
first event was Valencia's identification of himself as
"Restrepo" in his interview with the pretrial services
officer. The second event was his giving the false name,
under oath, at the outset of the detention hearing when
"detention was still an open issue."
II.
Pursuant to 3C1.1, the sentencing court shall increase
the offense level by two "[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." One type
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of conduct to which this enhancement applies is providing
"materially false information to a . . . magistrate."
U.S.S.G. 3C1.1, comment. n. 3(f). An obstruction of
justice increase is also warranted when a defendant provides
materially false information to a pretrial services officer
who is conducting a bail investigation for the court. See ___
United States v. St. James, 38 F.3d 987, 988 (8th Cir. 1994) _____________ _________
(observing that commentary note 3(h) describes very similar
conduct). A material statement is a "statement . . . that,
if believed, would tend to influence or affect the issue
under determination." U.S.S.G. 3C1.1, comment. n. 5.
Valencia argues that his false identification of himself
as "Restrepo" to the pretrial services officer did not
warrant an enhancement under 3C1.1. In particular, he
contends that the officer's investigation was not impeded,
and could not be impeded, since a routine fingerprint
analysis performed by the FBI revealed his true identity.
This argument is misplaced. Although materially false
statements made to law enforcement officials do not warrant
an enhancement unless they "significantly obstructed or
impeded the official investigation or prosecution of the
instant offense," see U.S.S.G. 3C1.1 n.3(g), the same is ___
not true of materially false statements made to probation
officers and, by analogy, pretrial services officers, in
respect to an investigation for the court, see U.S.S.G. ___
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3C1.1, comment. n. 3(h); United States v. St. Cyr, 977 F.2d _____________ _______
698, 705 & n.6 (1st Cir. 1992). Accordingly, no showing that
pretrial services' investigation was significantly obstructed
was required.1
We add that Valencia's true identity was material to the
officer's investigation, even if the false information he
provided did not ultimately affect the officer's
recommendation. His deliberate misrepresentation had the
potential to do so. No more is required. Cf. United States ___ _____________
v. Harrison, 42 F.3d 427, 430 (7th Cir. 1994) (holding that ________
whether the magistrate judge ultimately relied on defendant's
false statement in ordering his detention is not relevant to
the application of the enhancement); United States v. ______________
Mafanya, 24 F.3d 412, 415 (2d Cir. 1994) (affirming _______
enhancement where defendant appeared before the magistrate
judge using a false identity even though his true identity
was discovered before the detention hearing).
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1. We note that Valencia's true identity was not discovered
until some months after the pretrial services officer
prepared his report and made his recommendation to the
magistrate judge. Because Valencia provided a false name,
the officer's report contained inaccurate information about
his criminal history. Such reports must be prepared quickly
and, in any event, prior to the detention hearing. See 18 ___
U.S.C. 3154 (requiring the pretrial services officer to
collect, verify, and report information pertaining to the
pretrial release of a defendant "prior to the pretrial
release hearing.") Under the circumstances, although we do
not rely upon it, we think that Valencia's deception actually
impeded the officer in the performance of his task.
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In sum, we conclude that Valencia's false statements to
the pretrial services officer justified the enhancement under
3C1.1. Under the circumstances, we need not reach the
issue whether his identification of himself as "Restrepo" at
the detention hearing could constitute an obstruction of
justice in light of the fact that he assented to detention.
Accordingly, the judgment below is affirmed. See Loc. R. ________ ___
27.1.
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