927 F.2d 611
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
Rosendo GARZA-GOMEZ, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Submitted Mar. 1, 1991.*
Decided March 5, 1991.
Appeal from the United States District Court for the Southern District of California, No. CR-89-0895-03-E; William B. Enright, District Judge, Presiding.
Before FLETCHER, PREGERSON and TROTT, Circuit Judges.
Rosendo Garza-Gomez appeals his sentence, following a guilty plea, for possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Garza-Gomez contends that the district court erred by giving him a two point upward adjustment to his United States Sentencing Guidelines (Guidelines) offense level for obstruction of justice. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.
The district court's finding that Garza-Gomez obstructed justice is a factual conclusion which we review for clear error. United States v. Rodriguez-Macias, 914 F.2d 1204, 1205 (9th Cir.1990); United States v. Christman, 894 F.2d 339, 340 (9th Cir.1990).
The Guidelines mandate a two level upward adjustment 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." U.S.S.G. Sec. 3C1.1. "[F]urnishing material falsehoods to a probation officer in the course of a presentence or other investigation for the court" may provide a basis for applying the upward adjustment for obstruction of justice. U.S.S.G. Sec. 3C1.1, comment n. 1(e); see also Rodriguez-Macias, 914 F.2d at 1205 (Sec. 3C1.1 applies to defendant who gave police officer alias at time of arrest); Christman, 894 F.2d at 341 (Sec. 3C1.1 applies to defendant who gave false statement to probation officer regarding prior felony conviction); United States v. Baker, 894 F.2d 1083, 1084 (9th Cir.1990) (Sec. 3C1.1 applies to defendant who made misrepresentation to probation officer regarding criminal history). The upward adjustment for obstruction of justice "encompasses 'attempted' obstruction of justice as well as actual obstruction." Baker, 894 F.2d at 1084 (citation omitted).
Here, Garza-Gomez admits that although he "did initially withhold information from the probation officer ..., [t]he flow of justice was not interrupted and the truth was ascertained." However, " '[r]equiring the probation officer to complete a thorough check on the defendant' would defeat 'the speed and convenience of the oral presentence report system.' " Baker, 894 F.2d at 1084 (quoting United States v. Gonzalez-Mares, 752 F.2d 1485, 1492 (9th Cir.), cert. denied, 473 U.S. 913 (1985)) (citations omitted). It is irrelevant to the application of U.S.S.G. Sec. 3C1.1 whether or not the probation officer would have discovered the lie in the ordinary course of events.1 Id.
Therefore, the district court did not clearly err by concluding that Garza-Gomez merited a two point upward adjustment for obstruction of justice. See Christman, 894 F.2d at 340; Baker, 894 F.2d at 1084.
The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
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
Garza-Gomez also contends that the district court's grant of a two level downward adjustment under U.S.S.G. Sec. 3E1.1 for acceptance of responsibility proves that the district court erred by also imposing the obstruction of justice upward adjustment. "Conduct resulting in an enhancement under Sec. 3C1.1 ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both Secs. 3C1.1 and 3E1.1 may apply." U.S.S.G. Sec. 3E1.1, comment n. 4. Nonetheless, any error in the district court's simultaneous adjustment of Garza-Gomez's offense level under both Secs. 3C1.1 and 3E1.1 favored appellant. It is the acceptance of responsibility provision, U.S.S.G. Sec. 3E1.1, that is said to be inapplicable when the provision on obstruction of justice, U.S.S.G. Sec. 3C1.1, is implicated