     Case: 17-11091      Document: 00514663737         Page: 1    Date Filed: 10/01/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                        No. 17-11091                United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                                                     October 1, 2018
UNITED STATES OF AMERICA,
                                                                      Lyle W. Cayce
              Plaintiff - Appellee                                         Clerk


v.

JUAN CARLOS MARIN-CARDONA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 6:95-CR-3-1


Before HAYNES, HO, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Defendant Juan Carlos Marin-Cardona appeals the district court’s
decision to apply an obstruction of justice enhancement to his sentence and
deny him a reduction for acceptance of responsibility. We AFFIRM.
                                   I.     Background
       In January 1993, Defendant Juan Carlos Marin-Cardona was convicted
for importation of cocaine and possession with intent to distribute cocaine. He


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11091
was sentenced to 70 months imprisonment as to each count. Marin-Cardona
escaped from prison in November 1994. In 2001, the United States Marshals
Service (USMS) received a tip that Marin-Cardona would be traveling to
Miami under the alias “Alexander Ray,” but it was unable to locate him.
Searches for Marin-Cardona were unsuccessful for the next fifteen years. In
March 2017, the USMS learned Marin-Cardona was using the alias “Alexander
Rey” and living in Bogota, Colombia, where he owned a fashion boutique. The
USMS tracked Marin-Cardona via Facebook, and was able to pinpoint that he
was in Mexico using a Colombian passport under the name “Alexander Rey
Marin-Cardona.” After Mexican authorities detained Marin-Cardona, he was
deported to Houston, where the USMS arrested him on the 1994 escape
warrant.
      Marin-Cardona pleaded guilty to escaping from federal custody. The
pre-sentence report (PSR) calculated a guidelines sentencing range of 24 to 30
months, based on an offense level of 15 and a criminal history category of III.
The PSR included a two-level increase to Marin-Cardona’s offense level for
obstruction of justice under U.S.S.G. § 3C1.1, based on his name change to
“Alexander Rey Marin-Cardona” four years after his escape from prison. The
USMS claimed the name change significantly impeded their investigation.
The PSR also asserted a reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1 was not warranted because Marin-Cardona received an
obstruction enhancement. The district court adopted the PSR and addendum
over the objection of both parties. Marin-Cardona was sentenced to 30 months
imprisonment to run consecutively to his unfinished sentence. Marin-Cardona
filed a timely appeal. He now argues the district court erred both in applying
the obstruction of justice enhancement as well as denying an acceptance of
responsibility reduction.


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                                  No. 17-11091
                                II.   Discussion
         A. Obstruction Enhancement
      We generally review a district court’s findings of fact for clear error and
its application of the sentencing guidelines de novo. United States v. Huerta,
182 F.3d 361, 364 (5th Cir. 1999). Marin-Cardona contends that whether his
name change actually qualifies for the obstruction enhancement relates to the
application of the sentencing guidelines, and thus warrants de novo review.
However, a finding that a defendant’s undisputed conduct was committed
“with the intent to obstruct or impede the administration of justice is a fact
question which this court reviews for clear error.” United States v. Chavarria,
377 F.3d 475, 477–78 (5th Cir. 2004), cert. granted and judgment vacated on
other grounds, 543 U.S. 1111 (2005), judgment reinstated, 162 F. App’x 306
(5th Cir. 2006) (per curiam); see also United States v. Cisneros, 112 F.3d 1272,
1279 (5th Cir. 1997). We will not hold a finding of fact clearly erroneous unless
we are “left with the definite and firm conviction that a mistake has been
committed.” United States v. Pofahl, 990 F.2d 1456, 1480 (5th Cir. 1993). So
long as “a factual finding is plausible in light of the record as a whole, it is not
clearly erroneous.” Huerta, 182 F.3d at 364.
      A defendant is subject to an obstruction enhancement if he or she
“willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice.” U.S.S.G. § 3C1.1. The district court applied the
enhancement for the reasons stated in the PSR and addendum—that Marin-
Cardona’s name change willfully and significantly impeded the investigation.
This is supported by the fact that Marin-Cardona’s name change allowed him
to evade the USMS for over twenty years, but he was apprehended less than
two weeks after authorities searched for the correct name. Marin-Cardona
argues he did not change his name for nefarious purposes; rather, “he was
starting a fashion design business and he wanted to use the name ‘Alexander
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                                      No. 17-11091
Rey’ as his fashion design label.” He also notes that had he intended to obstruct
justice, he would not have waited four years after escape to change his name.
It is not our role as an appellate court to weigh competing inferences and arrive
at a decision: when “there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.” United States
v. Hebert, 813 F.3d 551, 560 (5th Cir. 2015). 1
           B. Acceptance of Responsibility Reduction
       We review a district court’s denial of a reduction for acceptance of
responsibility under a highly deferential standard, and “will affirm a
sentencing court’s decision not to award a reduction under § 3E1.1 unless it is
without foundation, a standard of review more deferential than the clearly
erroneous standard.” United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th
Cir. 2008) (per curiam) (internal quotation marks and brackets omitted)
(quoting United States v. Anderson, 174 F.3d 515, 525 (5th Cir. 1999)).
Conduct that results in an obstruction of justice enhancement under § 3C1.1,
which was applied here, ordinarily “‘indicates that the defendant has not
accepted responsibility for his criminal conduct,’ except in ‘extraordinary cases
in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.’” Id. (quoting
U.S.S.G § 3E1.1 cmt. n.4).
       Marin-Cardona cites this court’s unpublished opinion in United States v.
Gonzalez-Relova to argue the district court erred because it determined an
obstruction enhancement renders a reduction for acceptance of responsibility
inappropriate as a matter of law. 988 F.2d 1211 at *1 (5th Cir. 1993); see also



       1Aside from the name change, we have also held that a defendant’s “extended stay in
[another] country as a fugitive” constitutes obstructive conduct.          United States v.
Benningfield, 628 F. App’x 315, 316 (5th Cir. 2016) (per curiam); see also Ballard v. Burton,
444 F.3d 391, 401 & n.7 (5th Cir. 2006) (“An unpublished opinion issued after January 1,
1996 is not controlling precedent, but may be persuasive authority.”). That is precisely the
case here.
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United States v. Rosales, 612 F. App’x 778, 780 (5th Cir. 2015) (noting the
district court was incorrect that an obstruction enhancement eliminates any
possibility of an acceptance reduction). But the district court made no such
determination. In fact, the PSR weighed Marin-Cardona’s timely admission of
guilt with his name change and acknowledged the district court had discretion
to grant him a reduction for acceptance of responsibility.            Thus, Marin-
Cardona’s first argument fails. 2
      Marin-Cardona also argues the district court erred because “there was
no mention of the ‘extraordinary cases’ exception or even a mention that the
district court had the discretion and authority to allow for the reduction for
acceptance of responsibility.” However, the PSR addendum, which the district
court adopted in full, specifically refers to the exception. The government also
referenced the exception at the sentencing hearing.
      By contrast, Marin-Cardona did not make any affirmative argument for
why his case is extraordinary for the purposes of the exception. It is the
defendant’s burden to prove entitled to the acceptance of responsibility offense
level decrease. United States v. Rudzavice, 586 F.3d 310, 316 (5th Cir. 2009).
We conclude that Marin-Cardona neither met his burden of proof at the district
court nor overcomes the highly deferential review standard on appeal.
      AFFIRM.




      2 The PSR also correctly notes that defendants are not entitled to acceptance of
responsibility reductions as a matter of right under §3E1.1.
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