                                                                 [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                                                                          FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                                                      January 4, 2006
                                    No. 04-13148
                                                                     THOMAS K. KAHN
                              ________________________                   CLERK

                      D. C. Docket No. 03-00257-CR-J-20-TEM

UNITED STATES OF AMERICA,


                                                                        Plaintiff-Appellee,

                                           versus

ROBINSON WILLIAM RODRIGUEZ
a.k.a. Robinson Rodriguez,

                                                                     Defendant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________

                                    (January 4, 2006)

Before TJOFLAT and KRAVITCH, Circuit Judges, and LAWSON *, District
Judge.




       *
        Honorable Hugh Lawson, United States District Judge for the Middle District of
Georgia, sitting by designation.
KRAVITCH: Circuit Judge:

       Defendant-Appellant Robinson William Rodriguez appeals his conviction

and sentence for being found in the United States after deportation, in violation of

8 U.S.C. § 1326. On appeal, Rodriguez raises five issues: (1) whether the district

court properly denied his motion to dismiss the indictment because his prior

deportation was invalid; (2) whether the district court properly denied the motion

to suppress his statement because he was not advised of his rights under the Vienna

Convention on Consular Relations (“VCCR”)1; (3) whether the court abused its

discretion by denying him the opportunity to raise a necessity or duress defense

based on his fear that he would be killed if returned to Colombia; (4) whether the

court committed plain error by applying an extra-verdict enhancement for

obstruction of justice and by sentencing him under a mandatory guidelines scheme,

in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005); and (5) whether the enhancement for obstruction of justice was warranted

under the facts of the case. After oral argument and a thorough review of the

record, we affirm.

       I. Background

       Rodriguez, a Colombian citizen, was convicted of aggravated robbery in


       1
          Vienna Convention on Consular Relations, art. 36, Dec. 14, 1969, 21 U.S.T. 77,
T.I.A.S. 6820.

                                               2
Texas in 1999, and deported after his release from prison. He later stowed away

on a ship originating in Venezuela and traveling to Florida. After customs

inspectors found Rodriguez on board the ship, he was indicted for a violation of

§ 1326. At his initial detention hearing, Rodriguez identified himself as Robinson

Vente Viveros. Rodriguez subsequently appeared before a magistrate judge,

identified himself as Robinson William Rodriguez, and entered a plea of not guilty.

       Rodriguez filed numerous pretrial motions, in which he, inter alia, sought to

suppress statements and dismiss his indictment. In support of his motion to

suppress, Rodriguez claimed that when he was arrested after being found on the

ship, border patrol officers failed to notify the Colombian consulate and inform

him of his rights under the VCCR.2 With respect to his motion to dismiss the



       2
          Under article 36 of the VCCR,
       if he so requests, the competent authorities of the receiving State shall, without
       delay, inform the consular post of the sending State if, within its consular district,
       a national of that State is arrested or committed to prison or to custody pending
       trial or is detained in any other manner. Any communication addressed to the
       consular post by the person arrested, in prison, custody or detention shall also be
       forwarded by the said authorities without delay. The said authorities shall inform
       the person concerned without delay of his rights under this sub-paragraph;
       consular officers shall have the right to visit a national of the sending State who is
       in prison, custody or detention, to converse and correspond with him and to
       arrange for his legal representation. They shall also have the right to visit any
       national of the sending State who is in prison, custody or detention in their district
       in pursuance of a judgment. Nevertheless, consular officers shall refrain from
       taking action on behalf of a national who is in prison, custody or detention if he
       expressly opposes such action.

Article 36, section 1(b)-(c).

                                                 3
indictment, he challenged his prior deportation as having violated due process.

Although he admitted that he had been convicted of aggravated robbery in Texas,

he asserted that the government had not followed proper procedures for expedited

removal of aggravated felons because he was not given a notice of intent, was not

advised of his rights to challenge his deportation or seek review of the order, and

never appeared before an immigration judge. He asserted that he would have

requested asylum or withholding of removal had he been informed of his rights.

Additionally, he claimed that he feared that he would be killed by paramilitaries if

he were to be returned to Colombia. Rodriguez indicated, however, that after his

deportation, he had escaped Colombia to Venezuela, where he spent 13 months

before re-entering the United States.

      At a hearing on the pre-trial motions, Rodriguez identified himself as Vente

Viveros Robinson, a name he later admitted was false. The court heard evidence

from the border patrol agent who processed Rodriguez that Rodriguez was given

his rights and declined to contact the consulate. According to the agent, every

alien is informed of his rights under the VCCR and the contact numbers of the

various consulates were posted by the phone. The court also heard testimony from

an immigration and customs agent that Rodriguez was given proper notice before

his deportation, and was informed that he must request permission before being



                                          4
allowed to re-enter the United States. Accordingly, the court denied the motions to

dismiss the indictment and suppress the statements.

          Before trial, the court granted the government’s motion to prevent Rodriguez

from arguing a necessity or duress defense to explain his re-entry. Rodriguez

sought to offer testimony that he re-entered the United States because he feared

death should he remain in Colombia. The jury convicted Rodriguez.

          In the presentence investigation report (“PSI”), the probation officer

assigned a base offense level of 26 with a two-level enhancement for obstruction of

justice because Rodriguez gave false names before the court. With a criminal

history category III, the corresponding guidelines range was 78 to 97 months

imprisonment. Rodriguez objected to the obstruction-of-justice enhancement, but

the court overruled the objection and sentenced Rodriguez to 78 months

imprisonment. Rodriguez now appeals.

          II. The Appeal

                A. Motion to Dismiss

          Rodriguez’s arguments center on whether his prior deportation was unlawful

because the proceedings were fundamentally unfair and he suffered prejudice as a

result.

          Dismissal of an indictment under § 1326 is proper if the alien defendant



                                              5
mounts a successful collateral attack on his prior deportation. United States v.

Zelaya, 293 F.3d 1294, 1297 (11th Cir. 2002); see also 8 U.S.C. § 1326(d). To

make such a showing, the defendant must prove that “(1) he exhausted any

administrative remedies that may have been available to seek relief against the

order; (2) the deportation proceeding at which the order was issued improperly

deprived him of an opportunity for judicial review; and (3) the entry of the order

was fundamentally unfair.” Zelaya, 293 F.3d at 1298. To establish that the

proceeding was fundamentally unfair, the defendant must show that “specific

errors prejudiced” him. Id.

      Here, Rodriguez cannot meet his burden. First, the district court found that

Rodriguez’s testimony was not credible. This court gives great deference to

credibility determinations. United States v. Gregg, 179 F.3d 1312, 1316 (11th Cir.

1999). The district court credited testimony that Rodriguez had been advised of

his rights, the charges against him, the reasons for his deportation, and his right to

contest the order, but that Rodriguez refused to sign any acknowledgment of his

rights. Thus, Rodriguez cannot meet the first two standards for his collateral

attack.

      Moreover, he cannot show that the proceeding was fundamentally unfair, as

he does not identify any error that would have prevented his deportation or that



                                           6
prejudiced him. Notably, Rodriguez would not have been eligible for asylum or

withholding of removal given his conviction for an aggravated felony. 8 U.S.C.

§ 1158(b)(2)(A)(ii), (B)(i). Accordingly, because Rodriguez cannot meet his

burden, the district court properly denied the motion to dismiss the indictment.

             B. Motion to Suppress

      Rodriguez next asserts that his statement should have been suppressed

because he was not advised of his rights under the VCCR. Although he admits that

he was told of his right to contact the consulate, he contends that the VCCR

requires that the consulate be informed that the phone call pertains to the arrest or

detention of one of its citizens.

        Article 36 of the Vienna Convention on Consular Relations requires that

local authorities inform detained or arrested foreigners of the right to contact their

consulate for assistance. See United States v. Duarte-Acero, 296 F.3d 1277, 1281

(11th Cir. 2002).

      Here, the evidence established that Rodriguez was informed of his right to

contact the Colombian consular, but that he declined to do so. We can find no case

law supporting his claim that authorities were required to take additional steps after

Rodriguez declined to exercise his right.

      Nevertheless, even if authorities failed to notify Rodriguez of his rights



                                            7
under the VCCR, the proper remedy is not to suppress the statements. The Vienna

Convention does not confer judicially enforceable individual rights.3 Duarte-

Acero, 296 F.3d 1281. As this court explained in Duarte-Acero, the preamble of

the Convention itself “disclaims any intent to create individual rights, stating that

its purpose ‘is not to benefit individuals but to ensure the efficient performance of

functions by consular posts.’” Id. at 1281-82 (quoting the Preamble to the Vienna

Convention). Moreover, the State Department has expressed the view “that the

only remedies for a violation of the Vienna Convention are diplomatic, political, or

derived from international law.”4 Id. Accordingly, the district court properly

denied the motion to suppress on these grounds.

               C. Necessity and Duress Defenses

       Rodriguez also argues that the court abused its discretion by denying him the

opportunity to raise a necessity or duress defense based on his fear that he would

be killed if returned to Colombia.

       3
          We note that the U.S. Supreme Court has granted certiorari in a case addressing
whether the Convention creates enforceable individual rights and whether suppression is the
proper remedy for violations. Sanchez-Llamas v. Oregon, 108 P.3d 573 (Ore.), cert. granted,
No. 05-51 (Nov. 7, 2005). In the present case, however, we conclude that the authorities
properly advised Rodriguez of his rights under the Convention, but that Rodriguez did not
invoke his rights. Therefore, the Supreme Court’s subsequent decision will not alter our
analysis.
       4
          The State Department’s interpretation of the treaty is entitled to deference. See El Al
Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168, 119 S. Ct. 662, 671, 142 L. Ed. 2d
576 (1999). See also Maharja v. Sec. Dep’t of Corrs., 04-14669, manuscript op. at 23-25 (11th
Cir. Dec. 15, 2005) (discussing available remedy under the Convention).

                                                 8
       To establish a duress defense, “a defendant must show that he acted under an

immediate threat of death or serious bodily injury, that he had a well-grounded fear

that the threat would be carried out, and that he had no reasonable opportunity to

escape or inform [the] police.” United States v. Wattleton, 296 F.3d 1184, 1196

n.20 (11th Cir. 2002). The “requirement of immediacy of the threat is a rigorous

one in which fear of future bodily harm to one’s self or to others will not suffice.”

Id. (internal citations omitted).

       Here, the district court properly determined that the duress defense was

inapplicable. Rodriguez testified that he had been living in Venezuela for over a

year when he re-entered the United States. Based on this testimony, the district

court concluded that Rodriguez’s testimony concerning his fear lacked credibility.

Because Rodriguez could not show that he faced an imminent threat, the district

court properly granted the government’s motion to exclude such testimony.

              D. Booker

       Rodriguez submitted his appellate brief before the Supreme Court issued its

opinion in Booker. He did, however, raise the issue of whether the application of

an enhancement for obstruction of justice based on the district court’s factual

findings would violate the Sixth Amendment. Because Rodriguez raised this issue

for the first time on appeal, review is for plain error. Post-Booker, this court has



                                           9
held that there are two Booker errors: constitutional error, which arises from the

application of extra-verdict enhancements, and statutory error, which arises from

the mandatory application of the guidelines. United States v. Shelton, 400 F.3d

1325, 1330-32 (11th Cir. 2005).

       To establish plain error, Rodriguez must show there is: (1) error; (2) that is

plain; (3) that affects his substantial rights in that it was prejudicial and not

harmless; and (4) that seriously affects the fairness, integrity, or public reputation

of the judicial proceedings. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir.), cert. denied, 125 S.Ct. 2935 (2005).

       Here, the district court imposed a two-level extra-verdict enhancement for

obstruction of justice based on its own factual findings. In addition, the court

applied the sentencing guidelines as mandatory. Therefore, Rodriguez’s Booker

challenge presents an error that is plain. See Rodriguez, 398 F.3d at 1298-99.

       The third prong of the plain error test, however, places a high burden on a

defendant and requires that Rodriguez show that his sentence would have been

different but for the mandatory application of the guidelines and the enhancement.

Id. at 1299-1301. Generally, this court looks for some statement of regret by the

district court that it was bound to impose the sentence under the guidelines and that

it would have sentenced the defendant differently but for the guidelines. See, e.g.,



                                            10
United States v. Martinez, 407 F.3d 1170 (11th Cir. 2005).

      A sentence at the low end of the guidelines, without more, does not meet this

third prong of the plain error test. See United States v. Cartwright,413 F.3d 1295

(11th Cir. 2005); United States v. Fields, 408 F.3d 1356 (11th Cir. 2005). Here,

there is nothing in the record that shows that the district court would have imposed

a lower sentence had it known the guidelines were advisory only.

      Moreover, after Booker the court is still required to properly calculate the

guidelines range, including any enhancements. United States v. Crawford, 407

F.3d 1174 (11th Cir. 2005). As discussed below, the district court properly applied

the enhancement for obstruction of justice, and, therefore, Rodriguez cannot show

plain error in his sentence.

             E. Obstruction of Justice

      Finally, Rodriguez asserts that giving a false name to the court did not

hinder an investigation, and, therefore, the enhancement for obstruction of justice

was improper.

      Under U.S.S.G. § 3C1.1, a two-level enhancement is appropriate if the

defendant “provides materially false information to a judge or magistrate” or

“provid[es] a materially false statement to a law enforcement officer that

significantly obstructed or impeded the official investigation or prosecution of the



                                          11
instant offense.” U.S.S.G. § 3C1.1, comment. (n.4(f), (g)).

         The guidelines draw a distinction between false statements made before a

judge and those made before a law enforcement officer. Statements made before a

judge need only be material and false; they do not have to hinder or obstruct an

investigation or prosecution. United States v. Ruff, 79 F.3d 123, 125 (11th Cir.

1996).

         Here, Rodriguez admitted that he gave a false name before the court during

the evidentiary hearing. As it is not relevant whether the false statement hindered

prosecution because Rodriguez made the statement to a judge, the court properly

applied the enhancement.

         III. Conclusion

         For the foregoing reasons, we AFFIRM Rodriguez’s conviction and

sentence.




                                           12
TJOFLAT, Circuit Judge, specially concurring:

      I concur without reservation in the court’s judgment affirming Rodriguez’s

conviction. I concur in the affirmance of Rodriguez’s sentence because, under this

circuit’s precedent (which the court cites), the district court did not commit plain

Booker error when it enhanced Rodriguez’s base offense level for obstruction of

justice. The court did not commit plain error because Rodriguez has not satisfied

the third prong of the plain-error test; that is, he has not cited (from the record of

his sentencing hearing) “some statement of regret by the district court that it was

bound to impose the sentence under the guidelines and that it would have

sentenced [him] differently but for the guidelines.” Ante at ___. In United States

v. Thompson, I referred to such statement of regret as “magic words,” 422 F.3d

1285, 1302 (11th Cir. 2005) (Tjoflat, J. specially concurring), and explained how a

district court statement of regret “fosters disrespect for the rule of law.” Id. at

1304. Were we not bound to adhere to this test, I would find plain error, vacate

Rodriguez’s sentence, and remand the case for resentencing in accordance with

Booker.




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