     Case: 09-40541     Document: 00511028248          Page: 1    Date Filed: 02/17/2010




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

                                                  FILED
                                                                          February 17, 2010
                                     No. 09-40541
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

OSCAR ALVAREZ, also known as Pepe Quintero-Bojado,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:08-CR-485-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Oscar Alvarez appeals the sentence imposed following his guilty plea
conviction for being found unlawfully in the United States subsequent to
deportation in violation of 8 U.S.C. § 1326. He contends that the district court
reversibly erred when it enhanced his offense level for obstruction of justice
pursuant to U.S.S.G. § 3C1.1. Alvarez does not dispute that he provided a false
name when he was arrested, when he was interviewed by pretrial services, and
when he appeared before the magistrate judge. However, he argues that the

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-40541   Document: 00511028248 Page: 2        Date Filed: 02/17/2010
                                No. 09-40541

record does not support the determinations that he acted willfully and with the
intent to hinder justice. He also argues that his misrepresentation was not
material.
      We review a district court’s factual finding that a defendant has obstructed
justice under § 3C1.1 for clear error. United States v. Powers, 168 F.3d 741, 752
(5th Cir. 1999). The record reflects that Alvarez used a false name when under
oath before the magistrate judge. This conduct 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). We also conclude that the district court did not err
in finding the misrepresentation material. See generally United States v. Najera
Jimenez, No. 08-50913, 2010 U.S. App. LEXIS 226 (5th Cir. Jan. 6,
2010)(construing similar materiality requirement in 18 U.S.C. § 1001 and
concluding that the government need not show that it was actually misled in
order for a misrepresentation to be material). Therefore, the district court did
not clearly err when it increased Alvarez’s offense level pursuant to § 3C1.1.
      AFFIRMED.




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