United States v. Huerta

                  UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                        __________________

                           No. 98-20812
                        __________________


     UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

                              versus

     PABLO HUERTA,

                                       Defendant-Appellant.

         ______________________________________________

          Appeal from the United States District Court
               for the Southern District of Texas
         ______________________________________________
                          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.

                                       2
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.




                                       3
                                         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


                                          4
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


                                        5
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.




                                            6
                                           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.

                                           7
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.


                                       8
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


                                   9
(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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