IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-10387
September 28, 2007
Charles R. Fulbruge III
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee,
v.
MARIO TRUJILLO,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before KING, WIENER, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Mario Trujillo pleaded guilty to violating 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B) by possessing with intent to distribute more than 50 grams of a mixture
or substance containing methamphetamine. Trujillo appeals the district court’s
application of a sentencing enhancement for obstruction of justice and contends
his sentence is unreasonable. We affirm the sentence.
I
Pursuant to a written plea agreement, Mario Trujillo pleaded guilty to an
indictment charging him with one count of possession with intent to distribute
more than 50 grams of a mixture or substance containing methamphetamine.
In the presentence report (PSR), Trujillo’s base offense level was determined to
No. 06-10387
be 28 pursuant to § 2D1.1(c)(6) of the advisory sentencing Guidelines (U.S.S.G.).1
The PSR recommended a two-level decrease to Trujillo’s offense level because
Trujillo met the criteria set forth in U.S.S.G. § 5C1.2(a). The PSR recommended
a two-level increase for obstruction of justice, pursuant to U.S.S.G. § 3C1.1,
because Trujillo told the probation officer during a presentence interview that
he was born in Forth Worth, Texas. After reviewing Trujillo’s juvenile record,
the probation officer learned that Trujillo was actually born in Mexico and was
subject to deportation because of the instant federal drug trafficking offense.2
The PSR further concluded that although Trujillo’s actions of admitting guilt,
expressing remorse, and implicating another individual in the crime normally
would “clearly demonstrate acceptance of responsibility,” the PSR did not
recommend a reduction for acceptance of responsibility because Trujillo had
misrepresented his citizenship to the probation officer. Trujillo’s total offense
level of 28 combined with his criminal history category of I resulted in an
advisory Guidelines range of 78 to 97 months of imprisonment.
Trujillo objected to the increase in his offense level for obstruction of
justice and the denial of a reduction for acceptance of responsibility. Trujillo
contended that he did not willfully obstruct justice because he believed that he
was born in Fort Worth. Trujillo also objected to the obstruction of justice
increase on the ground that his statement to the probation officer was not a
material statement. The district court overruled Trujillo’s objections after
considering testimony from Trujillo’s stepfather.
The district court then adopted the findings set forth in the PSR and
sentenced Trujillo to 84 months of imprisonment. The district court also
1
U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c)(6) (2005).
2
See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1227(a)(2)(B)(I), 1101(a)(43)(B) (defining the term
“aggravated felony” to mean “illicit trafficking in a controlled substance (as defined in section
802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)”).
2
No. 06-10387
imposed a four-year term of supervised release with the condition that, upon
completion of his prison term, Trujillo would be surrendered to immigration
officials for deportation pursuant to 18 U.S.C. § 3583(d). Trujillo appeals his
sentence.
II
We review the district court’s interpretation or application of the
Sentencing Guidelines de novo and its factual findings for clear error.3 A factual
finding is not clearly erroneous if it is plausible in light of the record as a whole.4
“‘Giving due regard to the opportunity of the district court to judge the
credibility of the witnesses,’ we will deem the district court’s factual findings
clearly erroneous only if, based ‘on the entire evidence,’ we are ‘left with the
definite and firm conviction that a mistake has been committed.’”5
Trujillo first contends that the district court’s factual finding that Trujillo
intentionally misrepresented his citizenship to the probation officer during the
presentence investigation was clearly erroneous. The district court based its
application of the obstruction of justice enhancement6 and its denial of a
3
United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).
4
Id.
5
United States v. Cabrera, 288 F.3d 163, 168 (5th Cir. 2002) (quoting 18 U.S.C.
§ 3742(e) and United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001)) (citation omitted).
6
U.S.S.G. § 3C1.1 (2005) provides:
If (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the defendant’s
offense of conviction and any relevant conduct; or (ii) a closely related
offense, increase the offense level by 2 levels.
3
No. 06-10387
reduction for acceptance of responsibility7 on this factual finding. Trujillo
asserts that he did not willfully give a false statement to the probation officer
because, at the time the statement was made, he believed that he was born in
Fort Worth.
“The government must prove factors for enhancement of sentencing by a
preponderance of the evidence,”8 and “[a] presentencing report generally bears
sufficient indicia of reliability to be considered as evidence by the sentencing
judge in making factual determinations required by the sentencing guidelines.”9
The district court “may adopt the facts contained in a [presentence report]
without further inquiry if those facts have an adequate evidentiary basis with
sufficient indicia of reliability and the defendant does not present rebuttal
evidence or otherwise demonstrate that the information in the PSR is
unreliable.”10 “The defendant bears the burden of showing that the information
in the PSR relied on by the district court is materially untrue.”11
7
U.S.S.G. § 3E1.1 provides:
(a) If the defendant clearly demonstrates acceptance of responsibility
for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the
offense level determined prior to the operation of subsection (a) is level
16 or greater, and upon motion of the government stating that the
defendant has assisted authorities in the investigation or prosecution of
his own misconduct by timely notifying authorities of his intention to
enter a plea of guilty, thereby permitting the government to avoid
preparing for trial and permitting the government and the court to
allocate their resources efficiently, decrease the offense level by 1
additional level.
8
United States v. Hill, 258 F.3d 355, 357 (5th Cir. 2001).
9
United States v. Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996).
10
Cabrera, 288 F.3d at 173-74.
11
United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995).
4
No. 06-10387
Trujillo contends that his stepfather’s testimony at the sentencing hearing
rebutted the facts set forth in the PSR and proved that he did not willfully give
a false statement to the probation officer regarding his citizenship. The PSR
stated:
[D]uring the Presentence Report interview, the defendant told this
officer that he was born in Fort Worth, Texas. However, this officer,
while reviewing the defendant’s file contained within the Tarrant
County Juvenile Probation Department, discovered the defendant’s
Mexican birth certificate which indicated he was born in Guanajato,
Mexico. . . . The defendant was untruthful in reference to his place
of birth . . . .
After Trujillo objected to this finding in the PSR, the probation officer added an
addendum to the PSR which stated:
The defendant’s information concerning his lack of knowledge about
his citizenship is uncorroborated at this point. The issue of whether
the 2-level increase of Obstruction of Justice applies and denial of
the 3 levels for Acceptance of Responsibility remain in dispute and
shall be resolved by the Court at the sentencing hearing.
At the sentencing hearing, Trujillo’s stepfather testified that Trujillo was
born in Mexico and was not his biological son but that Trujillo did not know his
stepfather was not his biological father until this sentencing hearing. His
stepfather began raising Trujillo as his son in the United States when Trujillo
was three years old. His stepfather also testified that he told Trujillo at age five
that Trujillo had been born in Mexico, but later, after “people [] were
psychologically damaging him and bothering him about that,” he told Trujillo to
“tell them that you’re from Forth Worth so they don’t bother you anymore.” At
the end of his testimony, Trujillo’s stepfather stated that he never discussed the
issue with Trujillo again and that Trujillo believed that he was actually born in
Forth Worth: “Yes, he believed that. He thought that way, he acted that way,
and he lived that way, yes.”
5
No. 06-10387
The district court rejected the stepfather’s conclusion that Trujillo came
to believe he was born in Fort Worth, apparently relying on the fact that Trujillo
was told he was born in Mexico and was told to lie about his place of birth. The
court determined that Trujillo intentionally made a false statement:
I’m satisfied the defendant knew he was born in Mexico. The
witness’s testimony, though his last answer was calculated to imply
otherwise, the witness’s testimony makes clear that the defendant
knew he was born in Mexico. . . . The defendant has always known
he was born in Mexico, and he intentionally misrepresented his
place of birth to the probation officer.
The district court had the opportunity to judge the credibility of the witness, and
based on the deference we must give to that determination and based on the
record evidence, the district court’s finding is not implausible and was not clearly
erroneous.
Trujillo contends that the district court erred in applying the obstruction
enhancement because his false statement to the probation officer was not
material, asserting “it only affects whether the Court enters an order for the
defendant to be turned over to immigration for deportation.” The district court
rejected this argument stating, “That’s pretty material.”
“The Guidelines Manual does not define ‘obstruct,’ but the application
notes to § 3C1.1 provide some guidance as to the type of conduct to which the
obstruction enhancement applies.”12 One of the examples listed in the
application notes to U.S.S.G. § 3C1.1 as a type of conduct to which the
obstruction enhancement applies is “providing materially false information to
a probation officer in respect to a presentence or other investigation for the
court.”13 The enhancement is not appropriate, however, if the defendant
“provid[es] incomplete or misleading information, not amounting to a material
12
United States v. Greer, 158 F.3d 228, 234 (5th Cir. 1998).
13
U.S.S.G. § 3C1.1 cmt. n.4(h) (2005).
6
No. 06-10387
falsehood, in respect to a presentence investigation.”14 “Material” is defined as
“information that, if believed, would tend to influence or affect the issue under
determination.”15
Trujillo contends that his false statement regarding his citizenship was not
material because it did not affect his advisory Guidelines imprisonment range,
his fine range, or the length of his supervised release. He argues that it would
only affect whether the district court ordered as a part of supervised release that
Trujillo be released to immigration officials for deportation proceedings.16
Trujillo also asserts that even if a provision ordering Trujillo to be released to
immigration officials had not been included in his sentence, he nevertheless
would have been subjected to deportation upon his release from prison.
Trujillo additionally asserts that the district court erred in applying the
obstruction of justice enhancement because his false statement did not
significantly impede the presentence investigation. Trujillo relies on the
unpublished opinion United States v. Spooner17 to support his argument. In
Spooner, a panel of this court held that a defendant’s false statements to a
probation officer during the presentence investigation must significantly impede
the investigation in order to warrant an obstruction of justice enhancement.18
14
Id. cmt. n.5(c).
15
Id. cmt. n.6.
16
See 18 U.S.C. § 3583(d) (“If an alien defendant is subject to deportation, the court
may provide, as a condition of supervised release, that he be deported and remain outside the
United States, and may order that he be delivered to a duly authorized immigration official for
such deportation.”).
17
83 F. App’x 626, 629-30 (5th Cir. 2003) (per curiam).
18
Id.
7
No. 06-10387
We first note that Spooner is not binding precedent.19 Nor is it persuasive
authority. The Spooner decision did not consider the difference between
application note 4(g), which applies to “a materially false statement to a law
enforcement officer that significantly obstructed or impeded the official
investigation or prosecution of the instant offense,”20 and application note 4(h),
which applies to “materially false information [provided] to a probation officer
in respect to a presentence or other investigation for the court.”21 The latter
governs Trujillo’s false statement, and note 4(h) does not contain note 4(g)’s
requirement that a materially false statement “significantly obstructed or
impeded the official investigation or prosecution of the instant offense.”22 The
touchstone in 4(h) is simply “materially false information.”23
Other provisions of the application notes to U.S.S.G. § 3C1.1 likewise
reflect the dichotomy between false statements to arresting or prosecuting
officers and false statements to probation officers conducting a presentence
investigation. The application notes to U.S.S.G. § 3C1.1 provide “a non-
exhaustive list of examples of the types of conduct” that will not give rise to the
enhancement.24 Included among those are “providing a false name or
identification document at arrest, except where such conduct actually resulted
in a significant hindrance to the investigation or prosecution of the instant
19
See 5TH CIR. R. 47.5.4.
20
U.S.S.G. § 3C1.1 cmt. n.4(g) (2005). See also United States v. Ahmed, 324 F.3d 368,
372-73 (5th Cir. 2003) (holding that a defendant’s false statements to the FBI denying he knew
four aliens who had entered illegally were material but did not significantly impede the
investigation, within the meaning of application note 4(g), because the investigating officers
already had information that permitted them to locate the illegal aliens promptly).
21
Id. cmt. n.4(h).
22
Id. cmt. n.4(g).
23
Id. cmt. n.4(h).
24
U.S.S.G. § 3C1.1 cmt. n.5 (2005).
8
No. 06-10387
offense,”25 and “making false statements, not under oath, to law enforcement
officers, unless Application Note 4(g) above applies.”26 By contrast, materiality
is the only determining factor with regard to false statements to a probation
officer conducting a presentence investigation: “providing incomplete or
misleading information, not amounting to a material falsehood, in respect to a
presentence investigation.”27
Trujillo’s false statement regarding his citizenship was material, as that
term is defined in the application notes to U.S.S.G. § 3C1.1.28 If believed, the
false statement would have affected the terms of his supervised released
regarding deportation.
Trujillo cannot escape the application of note 4(h) simply because the
probation officer learned of the falsity of Trujillo’s statement when Trujillo’s
birth certificate was discovered among the records in a prior juvenile proceeding.
The Sixth Circuit was confronted with a similar contention in United States v.
Bruce, and its reasoning is sound:
[W]e reject Defendant’s proposed “no harm, no foul” gloss upon this
guideline, under which a defendant would be free to provide
materially false information without penalty so long as the
probation officer is able to promptly establish that the information
is false. The guideline, after all, is triggered by either actual or
“attempted” obstructions of justice, indicating that the proper focus
is on the defendant’s conduct rather than the probation officer’s
success in conducting a presentence investigation despite the
misinformation provided by the defendant. Likewise, the
commentary accompanying this guideline emphasizes that
25
Id. cmt. n.5(a).
26
Id. cmt. n.5(b) (referring to the requirement in 4(g) that the false statement
“significantly obstructed or impeded the official investigation or prosecution of the instant
offense”).
27
Id. cmt. n.5(c).
28
Id. cmt. n.6.
9
No. 06-10387
information is “material” where, “if believed, [it] would tend to
influence or affect the issue under determination.” U.S.S.G.
§ 3C1.1, cmt. n.6 (emphasis added). It follows, therefore, that the
guideline is applicable even though a probation officer might not
have believed the defendant’s false assertion or, as here, was able
to quickly disprove it.29
The application notes to U.S.S.G. § 3C1.1 directly address Trujillo’s
situation. Because Trujillo made a materially false statement to a probation
officer conducting a presentence investigation, the obstruction enhancement
applies regardless of whether that statement actually impeded the presentence
investigation.
III
In his briefing, Trujillo states that he is appealing the district court’s
failure to apply a reduction for acceptance of responsibility. However, he did not
discuss that issue or cite any authority. At oral argument, Trujillo’s counsel
alluded to an argument that although Trujillo’s false statement might have
warranted an obstruction of justice enhancement, it was not the type of conduct
to also warrant a denial of a reduction for acceptance of responsibility. Trujillo,
however, has waived this argument because he failed to address it adequately
in his briefing before this court.30
IV
Trujillo also contends that his 84-month sentence is unreasonable. He
argues that his statement to the probation officer that he was born in Fort
Worth resulted in a five-level increase to his offense level, which he contends is
“truly outrageous” because his statement did not impede the presentence
investigation, he pleaded guilty to the indictment, he cooperated with the
29
United States v. Bruce, 396 F.3d 697, 712-13 (6th Cir. 2005), vacated on other
grounds, 405 F.3d 1034 (6th Cir. 2005), cert. denied, 546 U.S. 954 (2005).
30
See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all
issues not raised and argued in its initial brief on appeal.”).
10
No. 06-10387
Government, his cooperation led to the arrest of another individual, and he had
a category I criminal history. Post-Booker, we review a sentence for
unreasonableness, considering the factors in 18 U.S.C. § 3553.31 If the
sentencing court, however, “exercises [its] discretion to impose a sentence within
a properly calculated Guideline range, in our reasonableness review we will infer
that the judge has considered all the factors for a fair sentence set forth in the
Guidelines.”32 Because we owe great deference to a sentencing judge’s discretion,
“it will be rare for a reviewing court to say such a sentence is ‘unreasonable.’”33
The advisory Guideline range was 78 to 97 months of imprisonment, and
the district court imposed a sentence of 84 months. Trujillo has presented no
compelling reason and has cited no authority to support a determination that
this sentence is unreasonable. In our reasonableness review, therefore, we hold
that the district court committed no reversible error.
*****
For the foregoing reasons, we AFFIRM Trujillo’s conviction and sentence.
31
United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005).
32
Id. at 519.
33
Id.
11