Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1989)

MEMORANDUM^* 

Defendant appeals from his sentence for conspiracy to possess heroin with intent to distribute. He contends that the district court erred in adjusting upward his base offense level under the Sentencing Guidelines for obstruction of justice. We affirm the district court's decision.

* On October 28, 1988, appellant was arrested along with two other people following an undercover police investigation and drug transaction. After waiving his Miranda rights, appellant told the arresting agents that his name was Jose Estrada-Lopez.

On November 2, 1988, the government filed a three-count indictment in the United States District Court for the Southern District of California. Appellant was charged with possession of heroin with intent to distribute and conspiracy to possess heroin with intent to distribute.

Throughout various proceedings, appellant continued to state that his name was Jose Estrada-Lopez. For instance, on February 6, 1989, defendant pleaded guilty and stated under oath that such was his true name. He used the same name when first interviewed by a probation officer on February 10, 1989 for the purpose of preparing a presentence report.

Appellant subsequently called the probation officer and obtained a second interview on February 15, 1989. Appellant there advised that his true name was Juan Jose Benitez-Hernandez, and not, as he had frequently previously represented, Jose Estrada-Lopez. His motivation for using a false name, appellant stated, was that he had applied for immigration relief under a government amnesty program using his true name. Appellant had been issued a temporary permit which he hid underneath the dashboard of a car immediately before his arrest.

The government ran a criminal-records check under appellant's true name. It revealed that appellant had been convicted in 1985 for driving under the influence in Santa Maria, California.

The presentence report prepared by the probation officer recommended that appellant's base offense level be adjusted upward by two levels for obstruction of justice, pursuant to section 3C1.1 of the Sentencing Guidelines. The probation officer based this recommendation on the fact that appellant had lied about his true identity to the arresting agents, a magistrate, the district court, and the probation officer before voluntarily coming forward with the truth.

At appellant's sentencing hearing on April 17, 1989, appellant's counsel objected to the recommended adjustment for obstruction of justice. After listening to counsel's arguments, the district court indicated that it would follow the presentence report's recommendation on the adjustment. The court sentenced appellant to sixty-three months of imprisonment and a consecutive three-year term of supervised release.

Appellant timely appeals from the district court's ruling; we have jurisdiction under 18 U.S.C. § 3742(a).

II

Appellant presents two arguments that the district court erred in adjusting upward his base offense level under section 3C1.1 of the Sentencing Guidelines. First, he contends that, as a matter of fact, he did not obstruct or attempt to obstruct justice. Second, he argues that, as a matter of law, it was improper for the district court to adjust his offense level upward for obstruction of justice while simultaneously adjusting it downward for acceptance of responsibility. We reject both arguments.

* The Sentencing Guidelines mandate a two-level increase in a defendant's base offense level " [i]f the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense." United States Sentencing Commission, Guidelines Manual Sec. 3C1.1, at 3.9 (1989) [hereinafter "Guidelines Manual"]. A district court's ruling under section 3C1.1 is a factual determination and is reviewed on appeal only for clear error. United States v. Christman, 894 F.2d 339, 342 (9th Cir. 1990). We therefore must uphold the district court's ruling unless, after reviewing the record, we are "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

The district court here explained why appellant's actions necessitated the upward adjustment:

Now, in this case, Mr. Benitas [sic ] lied until a second interview, when he did call up the Probation Department and asked to be interviewed, and then, revealed his true name. He lied to the law enforcement officers. He lied to the magistrate. He lied to the District Court. He was under oath when he pled guilty, and stated his true name was Estrada. When the probation officer interviewed him, he gave her a fictional background that applied with his fictional identity. It was only later, then, that he called up and asked for another interview, and revealed his true identity. So, under the circumstances, not only does that fall within [Application Note] C, as Mr. Harrigan [i.e., the Assistant U.S. Attorney] mentioned, but also, E, furnishing material faslehoods to a probation officer in the course of a presentence, or other investigation for the court. And I think it clearly fits within the obstruction, and therefore, I think it's appropriate.

Transcript of Motions Hearing, Apr. 17, 1989, at 19. Appellant concedes that the district court's account of his statements to various government officers is correct.

Appellant contends that no harm resulted from his lying about his name and that the adjustment was therefore error. We disagree with this analysis. The effect of appellant's action is irrelevant to this particular Guidelines provision, which applies not only to those who have obstructed justice, but also to those who have "willfully ... attempted [so] to impede or obstruct." Guidelines Manual Sec. 3C1.1, at 3.9.

Also meritless is appellant's argument that the district court erred because appellant's "particular reason for providing an alias was not to defeat the criminal justice system in any way." Appellant's Opening Brief at 7. As the district court noted, appellant's action fell within the application notes to section 3C1.1 of the Guidelines, which give as examples "testifying untruthfully ... concerning a material fact" and "furnishing material falsehoods to a probation officer in the course of a presentence or other investigation for the court." Id., Commentary, Application Notes 1(c), (e). Appellant does not contend that a true name is not material to an investigation; indeed, he does not dispute that his provision of a false name was "conduct calculated to mislead or deceive authorities or those involved in a judicial proceeding." Id., Commentary.

In short, after reviewing the record, we are not left with the definite and firm conviction that the district court erred in determining that appellant had obstructed or attempted to obstruct justice within the meaning of section 3C1.1.¹ 

B

We turn next to appellant's argument that the district court's upward adjustment under section 3C1.1 was improper because it was accompanied by a downward adjustment under section 3E1.1 of the Guidelines. An application note in effect at the time of appellant's sentencing stated that " [a]n adjustment under this [latter] section [for acceptance of responsibility] is not warranted where a defendant ... obstructs the trial or the administration of justice (see Sec. 3C1.1), regardless of other factors." United States Sentencing Commission, Guidelines Manual Sec. 3E1.1, Commentary, Application Note 4, at 3.22 (1987).

Any error by the district court in simultaneously adjusting under sections 3C1.1 and 3E1.1 favored appellant. After all, it is the provision on acceptance of responsibility (section 3E1.1) that was said to be inapplicable when the provision on obstruction of justice (section 3C1.1) was implicated, and not vice versa.²  Appellant's attempt to circumvent this reality by invoking the doctrine of lenity must fail, for there is no ambiguity. See United States v. Sherbondy, 865 F.2d 996, 1009 (9th Cir. 1988) (doctrine of lenity applicable when a court is "faced with an ambiguous statute and no (or limited) guidance from the legislative history").³ 

AFFIRMED.