     Case: 09-31109 Document: 00511315825 Page: 1 Date Filed: 12/08/2010




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

                                                 FILED
                                                                          December 8, 2010
                                     No. 09-31109
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

PAMELA GORDEN,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 1:08-CR-310-1


Before GARWOOD, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Pamela Gorden appeals the 37 month sentence imposed in 2009 following
her guilty plea conviction for mail fraud. She argues that the district court erred
by increasing her offense level for obstruction of justice and by failing to reduce
her offense level for acceptance of responsibility. The district court’s application
of the Sentencing Guidelines is reviewed de novo, and its factual findings are
reviewed for clear error. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th
Cir. 2008). A finding of obstruction of justice is a factual finding and will be

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-31109

upheld if it is plausible in light of the record as a whole. Id. We will affirm a
district court’s decision not to apply an adjustment for acceptance of
responsibility “unless it is ‘without foundation,’ a standard of review more
deferential than the clearly erroneous standard.” Id. at 211 (citation omitted).
      The Sentencing Guidelines provide for a two-level increase for obstruction
of justice if “the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the . . .
sentencing of the instant offense of conviction.” U.S. S ENTENCING G UIDELINES
M ANUAL § 3C1.1(A). Conduct justifying the adjustment includes “providing
materially false information to a probation officer in respect to a presentence or
other investigation for the court.” Id. at § 3C1.1, cmt. n.4(h). In Gorden’s
presentence report (PSR), the probation officer noted that Gorden admitted to
having been arrested in approximately 1983 for assault with a deadly weapon
because she had shot her fiancé in self defense. Gorden told the probation officer
that the case had been dropped. However, the probation officer determined that
Gorden had been convicted by guilty plea in 1989 for aggravated assault and had
been sentenced to three years of imprisonment, which was suspended, and five
years of unsupervised probation.           She was also ordered to pay $900 in
restitution. The sentencing court adopted the factual findings and statements
in the PSR. Based upon the record as a whole, it was plausible that Gorden’s
omission and denial of her prior conviction constituted willfully providing false
information to the probation officer. We have held that “prior convictions are
material even if they cannot be counted in the criminal history, because they
could influence the district court’s determination of the sentence within the
guideline range.” United States v. Buckley, 71 F.3d 876, WL 725606, at *3 (5th
Cir. Nov. 6, 1995).1 It was not clear error for the court to make this factual



      1
        Although unpublished, Buckley is precedential because it was issued before January
1, 1996. See 5TH CIR . R. 47.5.3.

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                                       No. 09-31109

finding and enhance Gorden’s offense level accordingly. Moreover, even if the
district court had erred by imposing the adjustment for obstruction of justice,
that error would be harmless in light of the district court’s statement that it
would have imposed the same sentence even if the obstruction adjustment had
not been applied. See United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th
Cir. 2009).2
       Gorden also argues that the district court erred in failing to grant a
decrease in her offense level for acceptance of responsibility. A defendant can
receive a two-level reduction in her offense level for clearly demonstrating
acceptance of responsibility for the offense of conviction. U.S. S ENTENCING
G UIDELINES M ANUAL § 3E1.1(a). The defendant may quality for a reduction by
“truthfully admitting the conduct comprising the offense(s) of conviction, and
truthfully admitting or not falsely denying any additional relevant conduct for
which the defendant is accountable.” Id. at § 3E1.1 cmt. n.1(a). In the PSR, the
probation officer noted that Gorden repeatedly stated during both the initial plea
hearing and the presentence investigation that she had not done anything wrong
and did not understand why she was being prosecuted for this offense. During
both her first and second rearraignment hearings, Gorden made statements
inconsistent with a clear acceptance of responsibility for the acts that made up
her offense. Examination of the record does not show that the denial of the
reduction for acceptance of responsibility was without foundation. Instead, the




       2
         Applying the two point obstruction of justice enhancement and denying an acceptance
of responsibility reduction produced a based level of 21, which with a criminal history category
of 1, gave rise to an advisory guideline range of 37 to 46 months’ confinement, as the district
court found. The district court also correctly found that without the obstruction enhancement,
the base offense level would be 19, giving rise (with the same criminal history) to an advisory
guideline range of 30 to 37 months. The court went on to state at sentencing: “even if that
calculation had been made and the adjustment for obstruction had not been included, the 37
month sentence is the same sentence I would have imposed in that instance. It’s just it’s the
right number for this particular case, all things considered.”

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record supports the district court’s   conclusion that Gorden did not clearly
demonstrate acceptance of responsibility for the offense of conviction.
      The judgment of the district court is AFFIRMED.




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