                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 August 22, 2005
                       ______________________
                                                          Charles R. Fulbruge III
                            No. 03-21026                          Clerk
                       ______________________


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

                v.

ENRIQUE ESCOBEDO-TORRES,

                Defendant - Appellant.



           Appeal from the United States District Court
            for the Southern District of Texas, Houston


Before REAVLEY, JOLLY, and PRADO, Circuit Judges.

PER CURIAM:*

     Enrique Escobedo-Torres challenges his sentence for illegal

reentry into the United States after deportation.      For the

following reasons, we affirm.

                                 I.

     In August 1999, Escobedo-Torres was deported as an alien

convicted of an aggravated felony pursuant to 8 U.S.C. §

1227(a)(2)(A)(iii).   In September 2002, he was arrested in



     *
      Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

                                 1
Houston, Texas for an open-container violation.   He admitted that

he had been deported on August 5, 1999 and then returned to Texas

on August 12, 1999 by crossing the Rio Grande River.   A grand

jury charged Escobedo-Torres with being unlawfully present in the

United States following deportation and conviction for an

aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and

(b)(2).

     Before trial, Escobedo-Torres filed a motion to suppress

evidence of his 1999 deportation and to dismiss the indictment in

the present case.   At the suppression hearing, he explained that

he intended to collaterally challenge his prior deportation.     In

particular, he argued that it was fundamentally unfair and

violated due process, and therefore could not form the basis of

his current indictment.   He testified, among other things, that

he did not remember receiving official documents from the INS

notifying him of his impending removal proceedings, his removal

order, and right to appeal that order.   He also claimed that he

did not recall being given documents warning him that he could

not legally return to the United States without the approval of

the Attorney General.   The Government responded by offering

testimonial and documentary evidence that Escobedo-Torres had

been served with the required paperwork.   The district court

denied the motion to suppress.

     Seven months after he was indicted and three days before his

scheduled trial date, Escobedo-Torres waived his right to a jury

                                 2
trial.    After a bench trial, the district court found him guilty.

     The Presentence Report (“PSR”) recommended a two-level

upward adjustment for obstruction of justice based on the

probation officer’s conclusion that Escobedo-Torres had lied at

the suppression hearing about whether he had received written

notice and warnings in his prior deportation case.    The PSR also

recommended that the court deny credit for acceptance of

responsibility based on Escobedo-Torres’s late waiver of a jury

trial and his refusal to stipulate facts relating to his offense.

In calculating Escobedo-Torres’s criminal-history category, the

PSR assessed two points for a DWI conviction that Escobedo-Torres

committed in 1991, and one point for a theft he committed in

1992.    Two more criminal-history points were added based on his

two state-court convictions in 1994 for DWI and a possession of a

firearm, respectively.    The result was a criminal-history

category of VI, a combined total offense level of 26, and a

recommended sentencing range of 120 to 159 months’ imprisonment.

     Escobedo-Torres objected to the district court’s obstruction

-of-justice assessment; denial of credit for acceptance of

responsibility; consideration of his 1991 convictions for DWI and

theft, which he claimed were too old to be calculated into his

criminal-history score; and treatment of his 1994 state-court

convictions as separate rather than related when calculating his

criminal-history score.    The district court denied Escobedo-

Torres’s objections, expressly adopted the findings and

                                  3
recommendations in the PSR, and imposed a sentence of 120 months’

imprisonment, 3 years’ supervised release, and a $100 special

assessment.   Escobedo-Torres timely appealed.

                                II.

                                A.

     On appeal, Escobedo-Torres first argues that the district

court erred by imposing the two-level sentence enhancement for

obstruction of justice.   Specifically, Escobedo-Torres challenges

the district court’s finding that he testified falsely at the

suppression hearing about whether he received the immigration

paperwork related to his 1999 deportation.   We review the

district court’s obstruction-of-justice finding1 for clear error,

“keeping in mind that the Government need show, and the court

need find, only by a preponderance of the evidence” that

Escobedo-Torres gave false testimony.   See United States v.

Greer, 158 F.3d 228, 240 (5th Cir. 1998).    “A finding is clearly

erroneous when, although some evidence supports the decision, we

are left with the definite and firm conviction that a mistake has

been committed.”   United States v. Tello, 9 F.3d 1119, 1122 (5th

Cir. 1993) (internal quotation marks omitted).

     The U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1


     1
      Because the district court expressly adopted all of    the
findings in the PSR, we review the obstruction of justice    finding
in the PSR as the district court’s own. United States v.     Cabral-
Castillo, 35 F.3d 182, 187 (5th Cir. 1994) (citing United    States
v. Laury, 985 F.2d 1293, 1308 n. 18 (5th Cir. 1993)).

                                 4
directs district courts to increase a defendant’s offense level

by two levels if he “willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice

during the investigation, prosecution, or sentencing of the

instant offense. . . .”     A defendant obstructs justice by means

of perjury when he “gives false testimony concerning a material

matter with the willful intent to provide false testimony.”       507

U.S. 87, 95–96 (1993); see also USSG § 3C1.1, comment., n.4(b)

(“committing, suborning, or attempting to suborn perjury”); id. §

3C1.1, comment., n.4(f) (“providing materially false information

to a judge”).     “[N]ot all inaccurate testimony or statements

necessarily reflect a willful attempt to obstruct justice.”       Id.

§ 3C1.1, comment., n.2; see also Dunnigan, 507 U.S. 87, 95–96

(1993).    When a defendant gives false testimony due only to

confusion, mistake, or a bad memory, he has not obstructed

justice.    Id.   Rather, “willful” obstruction of justice by a

defendant is “conscious, deliberate, voluntary, and intentional.”

Greer, 158 F.3d at 239.

     Arguing that he testified truthfully, Escobedo-Torres claims

the enhancement was improper because the court could not show

that he possessed the “willful intent” to obstruct justice.       To

this end, Escobedo-Torres first asserts that the district court

failed to make a specific finding regarding his intent.     He is

correct that such a finding is required in this circuit.     Greer,


                                   5
158 F.3d at 239 (“[A] § 3C1.1 enhancement implies a mens rea

requirement, . . . and requires the district court to make a

specific finding of intent.”).   However, his contention that the

district court did not meet this requirement fails.

     The findings in the PSR, which the court expressly adopted,

explain that Escobedo-Torres gave false testimony when he

“testified during a suppression hearing immediately prior to

trial that he had never received any paperwork from the

government indicating that he was not allowed to re-enter the

United States.”   The court concluded that by giving such

testimony, Escobedo-Torres had “willfully obstructed or impeded

the administration of justice during the course of the

prosecution of the instance offense of conviction.”   Accordingly,

the district court set forth a specific finding of intent.     Cf.

Reed, 49 F.3d at 901 (holding that the district court failed to

make a specific finding of intent where the court’s findings did

not reveal the particular basis for the enhancement and “it made

no findings that the conduct it believed was obstructive was

willfully so”).

     Escobedo-Torres next argues that the district court’s

finding was clearly erroneous because his testimony was not

perjured.   Specifically, he contends that he never claimed he did

not receive the immigration paperwork; rather, he maintains that

he merely testified that he could not remember getting the


                                 6
documents.

     Throughout the hearing, Escobedo-Torres stated that he could

not remember receiving three documents from the INS: the Notice

of Intent to Issue a Final Administrative Removal Order (“Notice

of Intent”), the Order of Removal, and the Warning to Alien

Removed or Deported (that he may not return without the

permission of the Attorney General).   Escobedo-Torres offers the

following testimony from his cross-examination:

     Government:         Okay.   Now, you stated that     the
                         Order   of   Removal,    which    is
                         Defendant’s Exhibit 6, that      you
                         never saw it; is that correct?

     Escobedo-Torres:    Yes, sir.

     Government:         All right. It is possible you just
                         don’t remember seeing it or did you
                         absolutely for sure not see it?

     Escobedo-Torres:    I don’t remember.

     Government:         You simply don’t remember?

     Escobedo-Torres:    Yes, sir.

     Government:         So if the person who signed the
                         Certificate of Service testifies
                         that he handed it to you, then he
                         must be right, true?

     Escobedo-Torres:    Yes.

     Government:         Well, he’s in the courtroom right
                         now and he will testify that he gave
                         you this; okay? So he will testify
                         that you did have notice, you did
                         see it.   Now, I want you to look
                         again at Defense Exhibit No. 7 where
                         it says——the block is checked——“At
                         no time may you reenter the United
                         States.”   And you claim you never

                                7
                         got this; correct?

     Escobedo-Torres:    I don’t remember getting that paper.

     Government:         Okay. Are you saying you absolutely
                         didn’t get it or you just don’t
                         remember?

     Escobedo-Torres:    I don’t remember.

     Government:         So you may well have gotten it?

     Escobedo-Torres:    Yes, sir.

     However, during the same cross-examination, Escobedo-Torres

stated with certainty that he had never seen another

document——the Notice of Intent.

     Government:         Mr. Escobedo-Torres, I would like to
                         ask you about Defense Exhibit No. 1
                         [Notice of Intent].      You stated
                         earlier that you did not remember
                         being served with this document;
                         correct?

     Escobedo-Torres:    Yes, sir.

     Government:         Are you flat out denying that you
                         were served with the document or you
                         just don’t remember?

     Escobedo-Torres:    No, I’m not denying      anything.   I
                         don’t remember.

     Government:         All right.       So it’s entirely
                         possible, isn’t it, that, as Defense
                         Exhibit    No.    3     [Form    I-851
                         acknowledging receipt of Notice of
                         Intent]   shows,    you   refused   to
                         acknowledge? This was on February
                         12th. Isn’t that entirely possible?

     Escobedo-Torres:    I had never before seen that paper.

     Government:         But the next day you had the piece
                         of paper and it looked like you
                         thought about it again and you

                                  8
                          decided that you would contest,
                          isn’t that what happened on February
                          13th?

     Escobedo-Torres:     The paper I signed, that’s the only
                          paper I see.

     Government:          Excuse me?

     Escobedo-Torres:     The paper I signed . . . on February
                          13, that’s the only paper I see.

     The paper Escobedo-Torres signed on February 13,

1999——Defense Exhibit No. 3——was a Form I-851 acknowledging

receipt of the Notice of Intent.       Thus, his testimony was that

even though he received and signed an acknowledgment form for the

Notice of Intent, he had never been given the Notice of Intent

itself.

     Notwithstanding this testimony, the Government presented

credible contradictory evidence that Escobedo-Torres had in fact

been served with the proper documentation.       Some of the documents

on their face indicate that Escobedo-Torres received them.       The

Notice of Intent contains a Certificate of Service executed by an

INS officer.   The certificate states, “I served this Notice of

Intent. I have determined that the person served with this

document is the above named individual,” and the date and manner

of service are listed as “2/12/99 by hand.”       And, as noted above,

even though Escobedo-Torres claimed never to have received the

Notice of Intent, the form acknowledging receipt of that document

bears his signature.

     Other circumstantial evidence suggests that Escobedo-Torres

                                   9
received the Notice of Intent, Order of Removal, and paperwork

warning him that it would be illegal to return to the United

States.   On February 12, 1999, the date that the Government

purportedly served Escobedo-Torres with the Notice of Intent, he

wrote a rebuttal letter to the INS in which he referred to

“papers” regarding deportation given to him by an “officer.”

Finally, two INS detention officers testified that normal

procedures would include service of removal and warning

documentation to each alien upon deportation, and that the

documents in Escobedo-Torres’s case demonstrated that he had been

served according to these procedures.

     When reviewing the imposition of an obstruction-of-justice

enhancement, we defer to the credibility determinations of

sentencing court unless they are clearly erroneous.2   The

district court here ultimately believed that Escobedo-Torres had

been served with the required documentation, and that he was

being purposefully misleading about these events, rather than

forgetful; the evidence supports the district court’s judgment.

Accordingly, the district court did not clearly err in enhancing

Escobedo-Torres’s sentence for obstruction of justice.

     2
      See Greer, 158 F.3d 228 (holding that the district court
did not clearly err in applying an obstruction of justice
enhancement where it was convinced that the defendant had
willfully feigned mental incompetency to obstruct and delay
proceedings); see also United States v. Murray, 65 F.3d 1161,
1165 (4th Cir. 1995) (holding that sentencing court did not err
in finding that defendant’s testimony that she did not remember
her confession was perjury based upon other credible evidence).

                                10
                                B.

     Escobedo-Torres next argues that he should have been given

credit for acceptance of responsibility under USSG § 3E1.1.

     This Court reviews the district court’s refusal to reduce a

defendant’s offense level for acceptance of responsibility with a

standard “even more deferential than a purely clearly erroneous

standard.”   United States v. Washington, 340 F.3d 222, 227-28

(5th Cir. 2003) (citing United States v. Maldonado, 42 F.3d 906,

913 (5th Cir. 1995)).

     In denying Escobedo-Torres’s motion, the district court

stated that “although [Escobedo-Torres] gave a statement for

consideration of acceptance of responsibility, the Government

indicated he gave false testimony during his suppression hearing.

As a result, he’s not eligible for the reduction.”   Under USSG §

3E1.1, a sentencing court may reduce a defendant’s base-offense

level by two levels “if the defendant clearly demonstrates

acceptance of responsibility for his offense.”   The application

notes further explain:

     This adjustment is not intended to apply to a defendant
     who puts the government to its burden of proof at trial
     by denying essential elements of guilt, is convicted, and
     then admits guilt and expresses remorse. Conviction by
     trial, however, does not automatically preclude a
     defendant from consideration for such a reduction. In
     rare situations a defendant may clearly demonstrate an
     acceptance of responsibility for his criminal conduct
     even though he exercises his constitutional right to a
     trial. This may occur, for example, where a defendant

                                11
     goes to trial to assert and preserve issues that do not
     relate to factual guilt (e.g. to make a constitutional
     challenge to a statute or a challenge to the
     applicability of a statute to his conduct). In each such
     instance, however, a determination that a defendant has
     accepted responsibility will be based primarily upon pre-
     trial statements and conduct.

USSG § 3E1.1, comment., n.2.

     Escobedo-Torres claims that he was entitled to credit for

acceptance of responsibility because he admitted to all the

elements of his offense at trial.     He claims his sole reason for

going to trial was to preserve his right to appeal his prior

deportation, which he challenged on constitutional grounds in his

motion to suppress.

     Escobedo-Torres’s challenge fails because whether he

challenged his factual guilt is not conclusive of whether he

deserved credit for accepting responsibility for his offenses.

As the Guidelines indicate, the determination that a defendant

who goes to trial has “clearly demonstrated” acceptance of

responsibility is “based primarily upon pretrial statements and

conduct.”   Id.   As we have already noted, the district court

found that Escobedo-Torres gave false testimony at the

suppression hearing.   In addition, Escobedo-Torres refused to

stipulate to any facts in his case and waited until three days

before his scheduled trial date to waive his right to a jury

trial.   Given these circumstances, we defer to the district

court’s finding that Escobedo-Torres did not merit an offense-



                                 12
level reduction for acceptance of responsibility.

                                C.

     Escobedo-Torres next argues that the district court erred in

calculating his sentence by assessing two criminal-history points

for a DWI conviction that occurred on February 13, 1991, and one

criminal history point for a theft conviction that occurred on

May 19, 1992.   He contends that these prior convictions should

not have been considered because they occurred more than ten

years before September 30, 2002——the date of the offense alleged

in Escobedo-Torres’s indictment for illegal reentry.   The

district court overruled Escobedo-Torres’s objection based on its

conclusion that the date of his offense was actually August 12,

1999——the date on which Escobedo-Torres admitted to illegally

reentering the United States.

     This Court reviews the district court’s application of the

sentencing guidelines de novo, and the district court’s findings

of fact are reviewed for clear error.   See United States v.

Villegas, 404 F.3d 355, 359 (5th Cir. 2005).   The defendant’s

criminal-history category is based on his prior convictions under

USSG § 4A1.1.   Sentences imposed more than ten years before the

commencement of the instant offense are not counted.   USSG §

4A1.1, comment., n.2; see also id. § 4A1.2(e)(2), (3).

     Under 8 U.S.C. § 1326, the offense of illegal reentry may be

committed by a deported alien on three separate occasions: (1)


                                13
when he illegally enters the United States; (2) when he attempts

to illegally enter the United States; or (3) when he is at any

time found in the United States.     United States v. Santana-

Castellano, 74 F.3d 593, 597 (5th Cir. 1996).    The offense is a

continuing one that commences when a defendant reenters the

United States illegally and continues until the defendant is

found in the United States.   Id. at 598.   Escobedo-Torres

admitted that he reentered the United States on August 12, 1999.

Accordingly, his offense of illegal reentry commenced on that

date.   Both of the convictions to which Escobedo-Torres objects

occurred within ten years of August 12, 1999, and were thus

properly included in the determination of Escobedo-Torres’s

criminal history score.

                                D.

     Finally, Escobedo-Torres argues that the district court

erred in counting his 1994 state-court sentences for DWI and

illegal possession of a firearm as separate, unrelated sentences

when calculating his criminal-history score under USSG § 4A1.2.

He contends that the court should have treated the sentences

imposed for those convictions as a single sentence arising from

related cases.   He bases his argument on the fact that he was

arrested for both offenses on August 20, 1994, and the resulting

convictions were consolidated for sentencing purposes.

     The determination of whether prior convictions are related


                                14
under § 4A1.2 because they are functionally consolidated for

trial is a fact-intensive decision that is accorded deferential

review under the clear-error standard.      See Buford v. United

States, 532 U.S. 59, 64–66 (2001).

     In computing a defendant’s criminal-history score, prior

sentences from related cases are to be treated as one sentence.

USSG § 4A1.2.    The Guidelines indicate that sentences are related

if the offenses occurred on the same occasion, were part of a

“single common scheme or plan,” or were consolidated for trial or

sentencing.     See USSG § 4A1.2, comment., n.3.    Whether

convictions that have been consolidated are related under § 4A1.2

is guided by “case-specific details.”      Buford, 532 U.S. at 65.       A

district judge may consider factual details of the crimes at

issue to determine whether factual connections or administrative

convenience resulted in consolidation for sentencing.          Id.   “[A]

finding that prior cases were consolidated will require either

some factual connection between them, or else a finding that the

cases were merged for trial or sentencing.”        United States v.

Huskey, 137 F.3d 283, 288 (5th Cir. 1998).

     Formal consolidation is not required for a consolidation

finding when factually distinct offenses are charged in the same

criminal information.     Id.   Just because a defendant is sentenced

for factually distinct crimes on the same day does not, however,

mean the convictions are related under § 4A1.2.        Id.    Even the


                                   15
imposition of identical, concurrent sentences will not result in

factually distinct offenses being considered related.    Id.

     Escobedo-Torres was arrested for both offenses on August 20,

1994; he was sentenced for both convictions on the same day; and

he received concurrent sentences.    However, the PSR indicates

that he committed the offenses on different dates: the commission

date for the DWI is June 9, 1994; and the commission date for the

illegal possession offense is August 20, 1994.    In addition, no

formal order of consolidation was issued; separate docket numbers

were used; and the two offenses are factually dissimilar.

Accordingly, the district court’s finding that the offenses were

unrelated is not clearly erroneous.

                              III.

     Based on the foregoing, we AFFIRM the sentence imposed by

the district court.

AFFIRMED.




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