     Case: 13-50188      Document: 00512490249         Page: 1    Date Filed: 01/06/2014




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


                                     No. 13-50188                               FILED
                                   c/w No. 13-50194                       January 6, 2014
                                  Summary Calendar                         Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARCIAL ALEGRIA CABANA, also known as Jose Diaz-Hernandez,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-399-1
                            USDC No. 2:12-CR-1541-1


Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Marcial Alegria Cabana appeals the sentence imposed following his
guilty plea conviction for being found unlawfully in the United States following
deportation in violation of 8 U.S.C. § 1326. He also appeals the revocation of a
prior term of supervised release.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50188
                               c/w No. 13-50194

      Cabana contends that the district court erred when it enhanced his
offense level pursuant to U.S.S.G. § 3C1.1 because he did not willfully obstruct
justice and his statement to the magistrate judge was not materially false. The
district court’s determination that a defendant obstructed justice under
§ 3C1.1 is a factual finding that we review for clear error. United States v.
Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008).
      At Cabana’s initial appearance, the magistrate judge explained that he
wanted to ensure that Cabana’s name was correct and that it was spelled
correctly on the complaint. The magistrate judge then asked Cabana whether
he was Jose Diaz-Hernandez, the name Cabana had given Border Patrol
agents upon his arrest. Cabana unequivocally answered yes and continued to
respond to that false name throughout the proceeding. Cabana’s use of a false
name when under oath before the magistrate judge was sufficient to support
the obstruction of justice enhancement, even without a showing of significant
hindrance. See § 3C1.1, comment. (n.4(F)); United States v. McDonald, 964
F.2d 390, 392-93 (5th Cir. 1992). Therefore, the district court did not clearly
err when it enhanced Cabana’s offense level pursuant to § 3C1.1.
      Cabana also contends that the district court erred when it denied him a
reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 because
the denial was based on the district court’s erroneous determination that he
obstructed justice.   In the alternative, he argues that his was one of the
extraordinary cases in which the reduction was warranted despite an
obstruction of justice enhancement.
      We review a district court’s denial of a reduction for acceptance of
responsibility pursuant to § 3E1.1 under a standard that is even more
deferential than the purely clearly erroneous standard.       United States v.
Washington, 340 F.3d 222, 227 (5th Cir. 2003). “The ruling should not be


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                                 No. 13-50188
                               c/w No. 13-50194

disturbed unless it is without foundation.” Id. (internal quotation marks and
citation omitted).
      As previously discussed, the district court did not clearly err when it
enhanced Cabana’s offense level pursuant to § 3C1.1. Further, Cabana has
failed to demonstrate that this is indeed one of those extraordinary cases in
which adjustments under both §§ 3C1.1 and 3E1.1 apply.             See § 3E1.1,
comment. (n.4); United States v. Thomas, 120 F.3d 564, 574-75 (5th Cir. 1997).
Although his alias may have been well known to immigration officials, his use
of a false name when under oath before the magistrate judge suggests that he
had not accepted responsibility for his criminal conduct. Therefore, the district
court’s determination that Cabana was not entitled to a reduction for
acceptance of responsibility pursuant to § 3E1.1 is not without foundation. See
Washington, 340 F.3d at 227.
      Finally, Cabana raises no claims of error with respect to the revocation
proceeding or sentence.     Thus, he has abandoned any issues on appeal
regarding the revocation judgment. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
      Accordingly, the district court’s judgments are AFFIRMED.




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