United States of America, Plaintiff-appellee, v. Aaron Jackson, A/k/a Donovan Salmon, Defendant-appellant, 985 F.2d 576 (9th Cir. 1993)

The government contends that Jackson's release from custody for the instant offense renders this appeal moot. This argument lacks merit.

Where review could result in an earlier end to a defendant's term of supervised release, the appeal is not moot despite the defendant having already served the period of imprisonment. United States v. Smith, No. 91-50029, slip op. 14241, 14246 (9th Cir. Dec. 9, 1992). Here, Jackson would be entitled to an earlier end to his five-year term of supervised release if we agreed with his argument that he should have been sentenced to a shorter term of imprisonment.¹  Because his sentence included a term of supervised release that could be affected by review, the instant appeal is not moot. Id.

We review for clear error a district court's finding of obstruction of justice. United States v. Rodriguez-Macias, 914 F.2d 1204, 1205 (9th Cir. 1990).

The applicable version of section 3C1.1 at the time of sentencing mandated a two-level upward adjustment where "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. § 3C1.1 (1988).²  Use of an alias may constitute obstruction of justice. Rodriguez-Macias, 914 F.2d at 1205. Actual prejudice to the government is not required; false information that has potential for obstructing justice is considered material. United States v. Baker, 894 F.2d 1083, 1084 (9th Cir. 1990). Further, "providing materially false information to a judge or magistrate" is an example of conduct to which the enhancement applies. U.S.S.G. § 3C1.1, comment. (n. 3(f)).³ 

During the arraignments on the complaint and the indictment, Jackson advised the magistrate judge and the district judge that his true name was Donovan Salmon and that Aaron Jackson, the name he gave upon arrest, was an alias. The district judge amended the indictment to reflect this purported true name. Almost two months later, Jackson revealed through his attorney that his true name was, in fact, Aaron Jackson. Relying on this conduct, the presentence report recommended an upward adjustment for obstruction of justice because Jackson "attempted to hide his true identity and thus thwart the presentence investigation." The district court made the upward adjustment, stating that the confusion over Jackson's true name "caused a good deal of extra investigatory work."

Because Jackson made material false statements regarding his use of an alias on two occasions to the court, the district court did not clearly err by finding that his conduct supported an upward adjustment for obstruction of justice. See U.S.S.G. § 3C1.1, comment. (n. 3(f)); Rodriguez-Macias, 914 F.2d at 1205; Baker, 894 F.2d at 1084.

AFFIRMED.

REINHARDT, Circuit Judge, dissenting:

I believe that the finding that Aaron Jackson a/k/a Donovan Salmon obstructed justice is clear error. He provided both his names, his alias and his real name, to officialdom from the beginning. Thus his misidentification of one rather than the other as his true name cannot have unduly interfered with the operations of government. Accordingly, I do not believe the Guidelines warrant an increase in sentence for that conduct.