     Case: 12-40679       Document: 00512284982         Page: 1     Date Filed: 06/24/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 24, 2013
                                     No. 12-40679
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SERGIO GARIBALDI-IBANES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1758-1


Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Sergio Garibaldi-Ibanes pleaded guilty pursuant to a plea agreement to
possession with intent to distribute 100 kilograms or more of marijuana. He was
sentenced to 51 months of imprisonment and a three-year term of supervised
release. Garibaldi-Ibanes contends that the district court erred by imposing an
enhancement for obstruction of justice under U.S.S.G. § 3C1.1 based upon the
determination that he testified falsely at an evidentiary hearing on his motion
to withdraw his guilty plea.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 12-40679

      Section 3C1.1 of the Sentencing Guidelines provides for a two-level
enhancement if the defendant willfully attempted to obstruct or impede the
administration of justice by, inter alia, committing perjury. § 3C1.1 & cmt. n.1
& n.4(B). Perjury for purposes of § 3C1.1 is defined as “giv[ing] false testimony
concerning a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.” United States
v. Dunnigan, 507 U.S. 87, 94 (1993). “[A] finding of an obstruction of, or
impediment to, justice that encompasses all of the factual predicates for a
finding of perjury” is sufficient. Id. at 95.
      Garibaldi-Ibanes argues that the district court’s finding that he testified
falsely at the hearing on the motion to withdraw his guilty plea may not justify
the enhancement because there was no evidence that he intended to obstruct
justice willfully. He further contends that the district court did not make the
necessary predicate factual findings of perjury to uphold the enhancement. His
challenge to the application of the enhancement was presented to the district
court and is reviewed for clear error. See United States v. Powers, 168 F.3d 741,
752 (5th Cir. 1999). His challenge to the adequacy of the district court’s findings
is reviewed for plain error because this challenge is raised for the first time on
appeal. Cf. United States v. Johnson, 352 F.3d 146, 149 n.2 (5th Cir. 2003).
      The district court’s finding that Garibaldi-Ibanes obstructed justice by
testifying falsely at the hearing on his motion to withdraw his guilty plea is not
clearly erroneous. See Powers, 168 F.3d at 752. The record contained evidence
from which the district court could have found that Garibaldi-Ibanes deliberately
and falsely intended to contradict evidence of his guilt, including, inter alia, his
post-arrest statement to law enforcement and his averments at rearraignment,
by testifying at the hearing that he lacked the required mens rea to be convicted
of the offense. See United States v. Morris, 131 F.3d 1136, 1140 (5th Cir. 1997).
The district court found that Garibaldi-Ibanes’s testimony at the hearing was
untruthful and that the competing evidence of his guilt was credible; the district

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                                  No. 12-40679

court’s finding that the testimony at the hearing was not believable and that the
contrary evidence was plausible is afforded deference by this court. See United
States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008). Garibaldi-Ibanes has
identified no evidence suggesting that he did not volitionally deny at the hearing
that he lacked the required knowledge or that the discrepancies with regard to
whether he had the necessary knowledge could reasonably be attributed to
confusion, mistake, or faulty memory. See Dunnigan, 507 U.S. at 94. His false
testimony at the hearing is adequate to merit an adjustment for obstruction of
justice. See United States v. Adam, 296 F.3d 327, 335 (5th Cir. 2002).
      The record also shows that the district court made adequate findings that
Garibaldi-Ibanes committed perjury at the hearing. The district court expressly
identified the false testimony and found that Garibaldi-Ibanes lied under oath.
See Morris, 131 F.3d at 1140. The court also indicated that it had reviewed the
testimony from the hearing and determined that Garibaldi-Ibanes willingly and
knowingly testified falsely. The court noted that false testimony stemming from
faulty memory, confusion, or mistake could mitigate a finding of perjury, but
found that those circumstances were not apparent in this case. Although the
district court did not expressly find that Garibaldi-Ibanes’s false testimony was
material, his testimony that he lacked the required knowledge to be convicted
clearly implicated his guilt. See United States v. Como, 53 F.3d 87, 90 (5th Cir.
1995). Thus, the district court’s findings regarding Garibaldi-Ibanes’s perjury
were sufficient, and Garibaldi-Ibanes has failed to demonstrate error, much less
plain error, in this respect. See Dunnigan, 507 U.S. at 94.
      The judgment of the district court is AFFIRMED.




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