United States of America, Plaintiff-appellee, v. Eligio Ramirez-morales, Defendant-appellant, 125 F.3d 860 (9th Cir. 1997)

Obstruction of justice is established under Guideline § 3C1.1 " [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 ..." The district court relied on the INS agent's report to find that Ramirez was lying about his wife's involvement, and hence was obstructing justice, because his wife had confessed.

Although the report contained double hearsay, Guideline § 6A1.3(a) allows the district court to "consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." The report was reliable on its face because it appeared to be prepared by an INS agent in the course of his official duties. We have previously affirmed a district court's reliance on hearsay contained in an investigative report of a Secret Service agent. See United States v. Bums, 894 F.2d 334, 336 (9th Cir. 1990).

Ramirez introduced nothing to challenge the INS agent's report. "A defendant challenging information used in sentencing must show that such information is ... false or unreliable...." United States v. Fulton, 987 F.2d 631, 633 (9th Cir. 1993). During the sentencing hearing, however, Ramirez's counsel did make a request for an evidentiary hearing. The district court denied the request as untimely.

We review the denial of an evidentiary hearing for abuse of discretion. See United States v. Harrison-Philpot, 978 F.2d 1520, 1525 (9th Cir. 1992), cert denied, 508 U.S. 929 (1993). The Guidelines provide that in the event of a reasonable dispute about important sentencing factors, "the court must ensure that the parties have an adequate opportunity to present relevant information." U.S.S.G. § 6A1.3. While written statements of counsel and affidavits "may be adequate under many circumstances," an evidentiary hearing "may sometimes be the only reliable way to resolve disputed issues." Id.

While Ramirez requested an evidentiary hearing, he made no offer of proof. The context of his discussion with the district court indicates that he apparently wanted to introduce evidence regarding Ms. Ramirez' statements. But in the absence of an offer of proof, we do not know who he intended to call as witnesses and what testimony he expected to elicit from them. "To preserve an issue for review requires an offer of proof and the making of a record." United States v. Bagley, 837 F.2d 371, 375 (9th Cir.), cert. denied, 488 U.S. 924 (1988). Ramirez has failed to make his record.

In addition, " [a] district court may permissibly deny a hearing where a defendant is allowed to rebut the recommendations and allegations of the presentence report either orally or through the submission of written affidavits or briefs." See United States v. Sarno, 73 F.3d 1470, 1502-03 (9th Cir. 1995), cert.denied, 116 S. Ct. 2555 (1996). Here, Ramirez had a full opportunity to submit written briefs and make oral argument. The denial of an evidentiary hearing was not an abuse of discretion.

Finally, Ramirez argues that even if his statements about his wife's involvement were false, they were not "materially false" as required by § 3C1.1. He contends that "there never was a potential for an obstruction of justice, because the Government allegedly received Ms. Ramirez' confession the very same day of the arrest, and chose not to charge her." See Appellant's Brief at 8.

But Ramirez repeated the falsehood to the probation officer preparing the presentence report. By exonerating his wife, Ramirez could have influenced the probation officer's Guideline calculation. Guideline § 3B1.4 provides for a two-level enhancement if the defendant used children under the age of eighteen to avoid detection. When Ramirez was arrested, three of his children were with him and his wife in the van. The INS agent's report describes the children as minors. Before the sentencing hearing, it was at least arguable that § 3B1.4 applied to Ramirez and might be used to increase his base offense level. His children would look more like decoys if his wife was a knowing accomplice.

Furnishing false statements to a probation officer in the course of the preparation of a presentence report may provide a basis for finding an obstruction of justice. See U.S.S.G. § 3C1.1 Application Note 1(e). A misrepresentation to a probation officer could be material even if it did not actually cause an inaccurate Guideline calculation. See United States v. Baker, 894 F.2d 1083, 1084 (9th Cir. 1990). It is enough that the defendant's lies "had the potential" or "could have" misled the probation officer. Id. (emphasis in original). In the present case, Ramirez' false exoneration of his wife could have mislead the probation officer.¹  The district court's factual findings are not clearly erroneous, and its legal conclusion that Ramirez' conduct constituted obstruction of justice under Guideline § 3C1.1 is correct.

Ramirez contends that he is entitled to a two-level downward adjustment for accepting responsibility under Guideline § 3E1.1(a) because he confessed as soon as he was caught. The district court denied the adjustment on the ground that Ramirez' conduct in obstructing justice was inconsistent with a finding that he had accepted responsibility.

A district court's determination of whether an adjustment for acceptance of responsibility is appropriate is reviewed for clear error. See United States v. Hopper, 27 F.3d 378, 381-82 (9th Cir. 1994). A finding that the defendant has obstructed justice "ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct." U.S.S.G. § 3E1.1, Application Note 4. There may be, however, "extraordinary cases" where the defendant has accepted responsibility even where he is also guilty of obstructing justice. Id. A case is extraordinary when the "defendant's obstructive conduct is not inconsistent with the defendant's acceptance of responsibility. Cases in which obstruction is not inconsistent with an acceptance of responsibility arise when a defendant, although initially attempting to conceal the crime, eventually accepts responsibility for the crime and abandons all attempts to obstruct justice." Hopper, 27 F.3d at 383 (emphasis in original) (citations omitted).

In the present case, Ramirez lied to the arresting officers about his wife's involvement. He could have abandoned this attempt to obstruct justice by telling the truth to the probation officer, but instead he repeated the lie. Therefore, this is not an extraordinary case. " [A] defendant should never receive an offense level reduction for acceptance of responsibility when there is obstructive conduct contradicting that acceptance of responsibility." Id. The district court's finding that Ramirez did not accept responsibility is not clearly erroneous.

Ramirez objects to the $1,500 fine, claiming that the district court ignored the presentence report's conclusion that he could not afford a fine. A district court's determination that a defendant has an ability to pay a fine is reviewed for clear error. See United States v. Favorito, 5 F.3d 1338, 1339 (9th Cir. 1993), cert. denied, 511 U.S. 1006 (1994). The Guidelines provide that a fine shall be imposed "in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine." U.S.S.G. § 5E1.2(e). The defendant has the burden of proving that he cannot pay a fine. See United States v. Quan-Guerra, 929 F.2d 1425, 1427 (9th Cir. 1991). Before imposing any fine, the district court must consider the factors set out in Guideline § 5E1.2(d) and 18 U.S.C. § 3572(a). Those factors include (1) the need to provide just punishment; (2) the defendant's financial ability to pay the fine; and (3) the burden that the fine places on the defendant and his dependents relative to other punishments.

The district court initially found that Ramirez did not have the ability to pay a fine. But when reminded of the seizure of the $1,542, the district court reversed itself and found that Ramirez had the ability to pay a $1,500 fine.

The district court is not required to explicitly state its conclusion as to each factor listed in § 5E1.2(d) and 18 U.S.C. § 3572. See United States v. Eureka Laboratories, Inc., 103 F.3d 908, 913 (9th Cir. 1996). "Rather, if the record, taken as a whole, indicates that the trial court considered the section 3572 factors, the trial court's findings are adequate." Eureka, 103 F.3d at 913-14.

The record in this case shows that the district court did consider the required factors. The district court's conclusion that the defendant could afford to pay a $1,500 fine was not clearly erroneous in light of the $1,542 found on Ms. Ramirez at the time of her arrest. The objection to the fine is therefore without merit.

Ramirez asserts that the district court failed to resolve the factual dispute over whether Ramirez' wife confessed, and also failed to make written findings. Fed. R. Crim. P. 32 requires that the district court resolve any objections to the presentence report and attach a written record of the findings to any copy of the presentence report sent to the Bureau of Prisons. Here, however, appellant did not object to the findings in the presentence report, but rather objected to the government's sentencing recommendations.² 

Rule 32 requires the court to "give the defendant and the defendant's counsel a reasonable opportunity to comment" on the information in the presentence report and any additional information relied on by the court. Fed. R. Crim. P. 32(c) (3) (A). However, "the district court need not make specific findings as to [a defendant's] objections to information found only in the Government's sentencing memorandum." United States v. Rico, 895 F.2d 602, 603 (9th Cir. 1990). The district court complied with Rule 32 by allowing both sides to comment on appellant's wife's statements and by finding credible the report that his wife had confessed. The district court's judgment is

AFFIRMED.