Unpublished Disposition, 936 F.2d 581 (9th Cir. 1991)
Annotate this CaseNo. 90-50439.
United States Court of Appeals, Ninth Circuit.
Before CANBY and RYMER, Circuit Judges, and WARE, District Judge** .
MEMORANDUM***
Jose Luis Ramirez-Ortega appeals his sentence imposed under the United States Sentencing Guidelines, following his guilty plea for illegal entry in violation of 8 U.S.C. § 1325. Ramirez contends that the district court erred by increasing his base offense level by two under U.S.S.G. Sec. 3C1.1 for obstruction of justice and by failing to decrease his base offense level under U.S.S.G. Sec. 3E1.1 for acceptance of responsibility. We have jurisdiction under 18 U.S.C. § 3742(a) (2),1 and we affirm.
* At the time of Ramirez's sentencing, U.S.S.G. Sec. 3C1.1 provided for a two-level increase in the 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." U.S.S.G. Sec. 3C1.1 (Nov. 1989). The district court's conclusion that Ramirez obstructed justice is a factual conclusion which we review for clear error. United States v. Christman, 894 F.2d 339, 342 (9th Cir. 1990).
The district court's conclusion that Ramirez obstructed justice was not clearly erroneous. Although Ramirez's use of a false name and the various false statements he made to the arresting agents may not suffice to warrant the two-level enhancement,2 Ramirez's mischaracterization of his prior arrest record in the written material he submitted to the probation officer is sufficient.3 The commentary to Sec. 3C1.1 explains that an adjustment is proper when a defendant "provides materially false information to a probation officer in respect to a presentence or other investigation for the court." U.S.S.G. Sec. 3C1.1 comment. (n. 3(h)) (Nov. 1990). We have held that this applies to a defendant who misrepresents his prior criminal record to a probation officer, notwithstanding the fact that the officer has access to the defendant's "rap sheet." United States v. Baker, 894 F.2d 1083, 1084 (9th Cir. 1990); see also Christman, 894 F.2d at 342.
II
Nor did the district court err in denying Ramirez a downward adjustment for acceptance of responsibility. Ramirez failed to show that the district court's decision was without foundation in facts, United States v. Smith, 905 F.2d 1296, 1301 (9th Cir. 1990), and he failed to show contrition for his offense, United States v. Piper, 918 F.2d 839, 840 (9th Cir. 1990). Accordingly, the sentence the district court imposed is
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
The Honorable James Ware, District Judge for the Northern District of California, sitting by designation
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
This appeal is not moot even though Ramirez has finished serving his term in prison, has been released and returned to Mexico, as the sentenced imposed in this case may have "collateral consequences." See, e.g., United States v. Mares-Molina, 913 F.2d 770, 773 n. 3 (9th Cir. 1990); United States v. Montenegro-Rojo, 908 F.2d 425, 431 n. 8 (9th Cir. 1990). As in Mares, if Ramirez is ever again sentenced under the guidelines his criminal history score will automatically be increased by three points. U.S.S.G. Sec. 4A1.1(a) (3 points added for prior sentence of more than 13 months). Alternatively, if the obstruction of justice adjustment is erroneous, then Ramirez's criminal history score would be increased by only two points, as the maximum sentence that could be imposed for this conviction would then be ten months. U.S.S.G. Sec. 4A1.1(b) (2 points added for prior sentences of more than 6 but less than 13 months)
See U.S.S.G. Sec. 3C1.1, comment. (n. 4) (Nov. 1990) (providing a false name at arrest or making false statements to law enforcement officers does not warrant adjustment unless such conduct actually resulted in significant hindrance to investigation of instant offense). While the district court did not have the benefit of this commentary when sentencing Ramirez, because application note 4 was added to clarify the operation of Sec. 3C1.1 and not effect any substantive change, we may consider it here. See U.S.S.G.App.C at 193 n. 347; United States v. Avila, 905 F.2d 295, 298 (9th Cir. 1990) (amendment that effected substantive change not considered); see also United States v. Urbanek, 930 F.2d 1512, 1514-15 (10th Cir. 1991); United States v. Fiala, 929 F.2d 285, 290 (7th Cir. 1991); United States v. Howard, 923 F.2d 1500, 1504 (11th Cir. 1991)
Ramirez did not object to the presentence report's description of the information he reported to the probation officer
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