United States v. Trujillo

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).

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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