United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 22, 2005
______________________
Charles R. Fulbruge III
No. 03-21026 Clerk
______________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ENRIQUE ESCOBEDO-TORRES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Texas, Houston
Before REAVLEY, JOLLY, and PRADO, Circuit Judges.
PER CURIAM:*
Enrique Escobedo-Torres challenges his sentence for illegal
reentry into the United States after deportation. For the
following reasons, we affirm.
I.
In August 1999, Escobedo-Torres was deported as an alien
convicted of an aggravated felony pursuant to 8 U.S.C. §
1227(a)(2)(A)(iii). In September 2002, he was arrested in
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
1
Houston, Texas for an open-container violation. He admitted that
he had been deported on August 5, 1999 and then returned to Texas
on August 12, 1999 by crossing the Rio Grande River. A grand
jury charged Escobedo-Torres with being unlawfully present in the
United States following deportation and conviction for an
aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and
(b)(2).
Before trial, Escobedo-Torres filed a motion to suppress
evidence of his 1999 deportation and to dismiss the indictment in
the present case. At the suppression hearing, he explained that
he intended to collaterally challenge his prior deportation. In
particular, he argued that it was fundamentally unfair and
violated due process, and therefore could not form the basis of
his current indictment. He testified, among other things, that
he did not remember receiving official documents from the INS
notifying him of his impending removal proceedings, his removal
order, and right to appeal that order. He also claimed that he
did not recall being given documents warning him that he could
not legally return to the United States without the approval of
the Attorney General. The Government responded by offering
testimonial and documentary evidence that Escobedo-Torres had
been served with the required paperwork. The district court
denied the motion to suppress.
Seven months after he was indicted and three days before his
scheduled trial date, Escobedo-Torres waived his right to a jury
2
trial. After a bench trial, the district court found him guilty.
The Presentence Report (“PSR”) recommended a two-level
upward adjustment for obstruction of justice based on the
probation officer’s conclusion that Escobedo-Torres had lied at
the suppression hearing about whether he had received written
notice and warnings in his prior deportation case. The PSR also
recommended that the court deny credit for acceptance of
responsibility based on Escobedo-Torres’s late waiver of a jury
trial and his refusal to stipulate facts relating to his offense.
In calculating Escobedo-Torres’s criminal-history category, the
PSR assessed two points for a DWI conviction that Escobedo-Torres
committed in 1991, and one point for a theft he committed in
1992. Two more criminal-history points were added based on his
two state-court convictions in 1994 for DWI and a possession of a
firearm, respectively. The result was a criminal-history
category of VI, a combined total offense level of 26, and a
recommended sentencing range of 120 to 159 months’ imprisonment.
Escobedo-Torres objected to the district court’s obstruction
-of-justice assessment; denial of credit for acceptance of
responsibility; consideration of his 1991 convictions for DWI and
theft, which he claimed were too old to be calculated into his
criminal-history score; and treatment of his 1994 state-court
convictions as separate rather than related when calculating his
criminal-history score. The district court denied Escobedo-
Torres’s objections, expressly adopted the findings and
3
recommendations in the PSR, and imposed a sentence of 120 months’
imprisonment, 3 years’ supervised release, and a $100 special
assessment. Escobedo-Torres timely appealed.
II.
A.
On appeal, Escobedo-Torres first argues that the district
court erred by imposing the two-level sentence enhancement for
obstruction of justice. Specifically, Escobedo-Torres challenges
the district court’s finding that he testified falsely at the
suppression hearing about whether he received the immigration
paperwork related to his 1999 deportation. We review the
district court’s obstruction-of-justice finding1 for clear error,
“keeping in mind that the Government need show, and the court
need find, only by a preponderance of the evidence” that
Escobedo-Torres gave false testimony. See United States v.
Greer, 158 F.3d 228, 240 (5th Cir. 1998). “A finding is clearly
erroneous when, although some evidence supports the decision, we
are left with the definite and firm conviction that a mistake has
been committed.” United States v. Tello, 9 F.3d 1119, 1122 (5th
Cir. 1993) (internal quotation marks omitted).
The U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1
1
Because the district court expressly adopted all of the
findings in the PSR, we review the obstruction of justice finding
in the PSR as the district court’s own. United States v. Cabral-
Castillo, 35 F.3d 182, 187 (5th Cir. 1994) (citing United States
v. Laury, 985 F.2d 1293, 1308 n. 18 (5th Cir. 1993)).
4
directs district courts to increase a defendant’s offense level
by two levels if he “willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the investigation, prosecution, or sentencing of the
instant offense. . . .” A defendant obstructs justice by means
of perjury when he “gives false testimony concerning a material
matter with the willful intent to provide false testimony.” 507
U.S. 87, 95–96 (1993); see also USSG § 3C1.1, comment., n.4(b)
(“committing, suborning, or attempting to suborn perjury”); id. §
3C1.1, comment., n.4(f) (“providing materially false information
to a judge”). “[N]ot all inaccurate testimony or statements
necessarily reflect a willful attempt to obstruct justice.” Id.
§ 3C1.1, comment., n.2; see also Dunnigan, 507 U.S. 87, 95–96
(1993). When a defendant gives false testimony due only to
confusion, mistake, or a bad memory, he has not obstructed
justice. Id. Rather, “willful” obstruction of justice by a
defendant is “conscious, deliberate, voluntary, and intentional.”
Greer, 158 F.3d at 239.
Arguing that he testified truthfully, Escobedo-Torres claims
the enhancement was improper because the court could not show
that he possessed the “willful intent” to obstruct justice. To
this end, Escobedo-Torres first asserts that the district court
failed to make a specific finding regarding his intent. He is
correct that such a finding is required in this circuit. Greer,
5
158 F.3d at 239 (“[A] § 3C1.1 enhancement implies a mens rea
requirement, . . . and requires the district court to make a
specific finding of intent.”). However, his contention that the
district court did not meet this requirement fails.
The findings in the PSR, which the court expressly adopted,
explain that Escobedo-Torres gave false testimony when he
“testified during a suppression hearing immediately prior to
trial that he had never received any paperwork from the
government indicating that he was not allowed to re-enter the
United States.” The court concluded that by giving such
testimony, Escobedo-Torres had “willfully obstructed or impeded
the administration of justice during the course of the
prosecution of the instance offense of conviction.” Accordingly,
the district court set forth a specific finding of intent. Cf.
Reed, 49 F.3d at 901 (holding that the district court failed to
make a specific finding of intent where the court’s findings did
not reveal the particular basis for the enhancement and “it made
no findings that the conduct it believed was obstructive was
willfully so”).
Escobedo-Torres next argues that the district court’s
finding was clearly erroneous because his testimony was not
perjured. Specifically, he contends that he never claimed he did
not receive the immigration paperwork; rather, he maintains that
he merely testified that he could not remember getting the
6
documents.
Throughout the hearing, Escobedo-Torres stated that he could
not remember receiving three documents from the INS: the Notice
of Intent to Issue a Final Administrative Removal Order (“Notice
of Intent”), the Order of Removal, and the Warning to Alien
Removed or Deported (that he may not return without the
permission of the Attorney General). Escobedo-Torres offers the
following testimony from his cross-examination:
Government: Okay. Now, you stated that the
Order of Removal, which is
Defendant’s Exhibit 6, that you
never saw it; is that correct?
Escobedo-Torres: Yes, sir.
Government: All right. It is possible you just
don’t remember seeing it or did you
absolutely for sure not see it?
Escobedo-Torres: I don’t remember.
Government: You simply don’t remember?
Escobedo-Torres: Yes, sir.
Government: So if the person who signed the
Certificate of Service testifies
that he handed it to you, then he
must be right, true?
Escobedo-Torres: Yes.
Government: Well, he’s in the courtroom right
now and he will testify that he gave
you this; okay? So he will testify
that you did have notice, you did
see it. Now, I want you to look
again at Defense Exhibit No. 7 where
it says——the block is checked——“At
no time may you reenter the United
States.” And you claim you never
7
got this; correct?
Escobedo-Torres: I don’t remember getting that paper.
Government: Okay. Are you saying you absolutely
didn’t get it or you just don’t
remember?
Escobedo-Torres: I don’t remember.
Government: So you may well have gotten it?
Escobedo-Torres: Yes, sir.
However, during the same cross-examination, Escobedo-Torres
stated with certainty that he had never seen another
document——the Notice of Intent.
Government: Mr. Escobedo-Torres, I would like to
ask you about Defense Exhibit No. 1
[Notice of Intent]. You stated
earlier that you did not remember
being served with this document;
correct?
Escobedo-Torres: Yes, sir.
Government: Are you flat out denying that you
were served with the document or you
just don’t remember?
Escobedo-Torres: No, I’m not denying anything. I
don’t remember.
Government: All right. So it’s entirely
possible, isn’t it, that, as Defense
Exhibit No. 3 [Form I-851
acknowledging receipt of Notice of
Intent] shows, you refused to
acknowledge? This was on February
12th. Isn’t that entirely possible?
Escobedo-Torres: I had never before seen that paper.
Government: But the next day you had the piece
of paper and it looked like you
thought about it again and you
8
decided that you would contest,
isn’t that what happened on February
13th?
Escobedo-Torres: The paper I signed, that’s the only
paper I see.
Government: Excuse me?
Escobedo-Torres: The paper I signed . . . on February
13, that’s the only paper I see.
The paper Escobedo-Torres signed on February 13,
1999——Defense Exhibit No. 3——was a Form I-851 acknowledging
receipt of the Notice of Intent. Thus, his testimony was that
even though he received and signed an acknowledgment form for the
Notice of Intent, he had never been given the Notice of Intent
itself.
Notwithstanding this testimony, the Government presented
credible contradictory evidence that Escobedo-Torres had in fact
been served with the proper documentation. Some of the documents
on their face indicate that Escobedo-Torres received them. The
Notice of Intent contains a Certificate of Service executed by an
INS officer. The certificate states, “I served this Notice of
Intent. I have determined that the person served with this
document is the above named individual,” and the date and manner
of service are listed as “2/12/99 by hand.” And, as noted above,
even though Escobedo-Torres claimed never to have received the
Notice of Intent, the form acknowledging receipt of that document
bears his signature.
Other circumstantial evidence suggests that Escobedo-Torres
9
received the Notice of Intent, Order of Removal, and paperwork
warning him that it would be illegal to return to the United
States. On February 12, 1999, the date that the Government
purportedly served Escobedo-Torres with the Notice of Intent, he
wrote a rebuttal letter to the INS in which he referred to
“papers” regarding deportation given to him by an “officer.”
Finally, two INS detention officers testified that normal
procedures would include service of removal and warning
documentation to each alien upon deportation, and that the
documents in Escobedo-Torres’s case demonstrated that he had been
served according to these procedures.
When reviewing the imposition of an obstruction-of-justice
enhancement, we defer to the credibility determinations of
sentencing court unless they are clearly erroneous.2 The
district court here ultimately believed that Escobedo-Torres had
been served with the required documentation, and that he was
being purposefully misleading about these events, rather than
forgetful; the evidence supports the district court’s judgment.
Accordingly, the district court did not clearly err in enhancing
Escobedo-Torres’s sentence for obstruction of justice.
2
See Greer, 158 F.3d 228 (holding that the district court
did not clearly err in applying an obstruction of justice
enhancement where it was convinced that the defendant had
willfully feigned mental incompetency to obstruct and delay
proceedings); see also United States v. Murray, 65 F.3d 1161,
1165 (4th Cir. 1995) (holding that sentencing court did not err
in finding that defendant’s testimony that she did not remember
her confession was perjury based upon other credible evidence).
10
B.
Escobedo-Torres next argues that he should have been given
credit for acceptance of responsibility under USSG § 3E1.1.
This Court reviews the district court’s refusal to reduce a
defendant’s offense level for acceptance of responsibility with a
standard “even more deferential than a purely clearly erroneous
standard.” United States v. Washington, 340 F.3d 222, 227-28
(5th Cir. 2003) (citing United States v. Maldonado, 42 F.3d 906,
913 (5th Cir. 1995)).
In denying Escobedo-Torres’s motion, the district court
stated that “although [Escobedo-Torres] gave a statement for
consideration of acceptance of responsibility, the Government
indicated he gave false testimony during his suppression hearing.
As a result, he’s not eligible for the reduction.” Under USSG §
3E1.1, a sentencing court may reduce a defendant’s base-offense
level by two levels “if the defendant clearly demonstrates
acceptance of responsibility for his offense.” The application
notes further explain:
This adjustment is not intended to apply to a defendant
who puts the government to its burden of proof at trial
by denying essential elements of guilt, is convicted, and
then admits guilt and expresses remorse. Conviction by
trial, however, does not automatically preclude a
defendant from consideration for such a reduction. In
rare situations a defendant may clearly demonstrate an
acceptance of responsibility for his criminal conduct
even though he exercises his constitutional right to a
trial. This may occur, for example, where a defendant
11
goes to trial to assert and preserve issues that do not
relate to factual guilt (e.g. to make a constitutional
challenge to a statute or a challenge to the
applicability of a statute to his conduct). In each such
instance, however, a determination that a defendant has
accepted responsibility will be based primarily upon pre-
trial statements and conduct.
USSG § 3E1.1, comment., n.2.
Escobedo-Torres claims that he was entitled to credit for
acceptance of responsibility because he admitted to all the
elements of his offense at trial. He claims his sole reason for
going to trial was to preserve his right to appeal his prior
deportation, which he challenged on constitutional grounds in his
motion to suppress.
Escobedo-Torres’s challenge fails because whether he
challenged his factual guilt is not conclusive of whether he
deserved credit for accepting responsibility for his offenses.
As the Guidelines indicate, the determination that a defendant
who goes to trial has “clearly demonstrated” acceptance of
responsibility is “based primarily upon pretrial statements and
conduct.” Id. As we have already noted, the district court
found that Escobedo-Torres gave false testimony at the
suppression hearing. In addition, Escobedo-Torres refused to
stipulate to any facts in his case and waited until three days
before his scheduled trial date to waive his right to a jury
trial. Given these circumstances, we defer to the district
court’s finding that Escobedo-Torres did not merit an offense-
12
level reduction for acceptance of responsibility.
C.
Escobedo-Torres next argues that the district court erred in
calculating his sentence by assessing two criminal-history points
for a DWI conviction that occurred on February 13, 1991, and one
criminal history point for a theft conviction that occurred on
May 19, 1992. He contends that these prior convictions should
not have been considered because they occurred more than ten
years before September 30, 2002——the date of the offense alleged
in Escobedo-Torres’s indictment for illegal reentry. The
district court overruled Escobedo-Torres’s objection based on its
conclusion that the date of his offense was actually August 12,
1999——the date on which Escobedo-Torres admitted to illegally
reentering the United States.
This Court reviews the district court’s application of the
sentencing guidelines de novo, and the district court’s findings
of fact are reviewed for clear error. See United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005). The defendant’s
criminal-history category is based on his prior convictions under
USSG § 4A1.1. Sentences imposed more than ten years before the
commencement of the instant offense are not counted. USSG §
4A1.1, comment., n.2; see also id. § 4A1.2(e)(2), (3).
Under 8 U.S.C. § 1326, the offense of illegal reentry may be
committed by a deported alien on three separate occasions: (1)
13
when he illegally enters the United States; (2) when he attempts
to illegally enter the United States; or (3) when he is at any
time found in the United States. United States v. Santana-
Castellano, 74 F.3d 593, 597 (5th Cir. 1996). The offense is a
continuing one that commences when a defendant reenters the
United States illegally and continues until the defendant is
found in the United States. Id. at 598. Escobedo-Torres
admitted that he reentered the United States on August 12, 1999.
Accordingly, his offense of illegal reentry commenced on that
date. Both of the convictions to which Escobedo-Torres objects
occurred within ten years of August 12, 1999, and were thus
properly included in the determination of Escobedo-Torres’s
criminal history score.
D.
Finally, Escobedo-Torres argues that the district court
erred in counting his 1994 state-court sentences for DWI and
illegal possession of a firearm as separate, unrelated sentences
when calculating his criminal-history score under USSG § 4A1.2.
He contends that the court should have treated the sentences
imposed for those convictions as a single sentence arising from
related cases. He bases his argument on the fact that he was
arrested for both offenses on August 20, 1994, and the resulting
convictions were consolidated for sentencing purposes.
The determination of whether prior convictions are related
14
under § 4A1.2 because they are functionally consolidated for
trial is a fact-intensive decision that is accorded deferential
review under the clear-error standard. See Buford v. United
States, 532 U.S. 59, 64–66 (2001).
In computing a defendant’s criminal-history score, prior
sentences from related cases are to be treated as one sentence.
USSG § 4A1.2. The Guidelines indicate that sentences are related
if the offenses occurred on the same occasion, were part of a
“single common scheme or plan,” or were consolidated for trial or
sentencing. See USSG § 4A1.2, comment., n.3. Whether
convictions that have been consolidated are related under § 4A1.2
is guided by “case-specific details.” Buford, 532 U.S. at 65. A
district judge may consider factual details of the crimes at
issue to determine whether factual connections or administrative
convenience resulted in consolidation for sentencing. Id. “[A]
finding that prior cases were consolidated will require either
some factual connection between them, or else a finding that the
cases were merged for trial or sentencing.” United States v.
Huskey, 137 F.3d 283, 288 (5th Cir. 1998).
Formal consolidation is not required for a consolidation
finding when factually distinct offenses are charged in the same
criminal information. Id. Just because a defendant is sentenced
for factually distinct crimes on the same day does not, however,
mean the convictions are related under § 4A1.2. Id. Even the
15
imposition of identical, concurrent sentences will not result in
factually distinct offenses being considered related. Id.
Escobedo-Torres was arrested for both offenses on August 20,
1994; he was sentenced for both convictions on the same day; and
he received concurrent sentences. However, the PSR indicates
that he committed the offenses on different dates: the commission
date for the DWI is June 9, 1994; and the commission date for the
illegal possession offense is August 20, 1994. In addition, no
formal order of consolidation was issued; separate docket numbers
were used; and the two offenses are factually dissimilar.
Accordingly, the district court’s finding that the offenses were
unrelated is not clearly erroneous.
III.
Based on the foregoing, we AFFIRM the sentence imposed by
the district court.
AFFIRMED.
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