     Case: 11-40387     Document: 00511785983         Page: 1     Date Filed: 03/13/2012




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

                                                                            FILED
                                                                          March 13, 2012

                                       No. 11-40387                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

WILSON ANTONIO ALTAMIRANO-ARGETA

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:10-CR-1358


Before GARZA, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Appellant Wilson Antonio Altamirano-Argeta appeals the district court’s
assessment of a two-level sentencing enhancement for obstruction of justice. For
the following reasons, we affirm.
                           FACTS AND PROCEEDINGS
        In September 2010, Altamirano-Argeta, a citizen of Honduras, was
charged in a one-count indictment with being unlawfully present in the United



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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States after having previously been deported, in violation of 8 U.S.C. § 1326 (a)
and (b). Altamirano-Argeta elected to proceed to trial.
      At trial, Altamirano-Argeta testified that he previously lived in the United
States after entering in 1987. He lived in the United States until 2010, when he
was deported to Honduras after serving time for a criminal conviction. Ten of
his siblings and his mother currently live in the United States. His children also
live in the United States.
      According to Altamirano-Argeta’s testimony at trial, he did not reenter the
United States willingly. After being deported, he traveled from Honduras to
Reynosa, a Mexican town close to Mexico’s border with the United States, to
work in Mexico as a welder. When he arrived in Reynosa, he testified that he
was kidnapped as soon as he got off the bus, and he was taken to a two-story
house with about 29 other people.        The kidnappers took his wallet and
threatened him in order to obtain his phone number and family information. He
stayed at the house for almost three weeks and then was taken to a river with
some of the other hostages on August 16, 2010. At the river, there were two men
on the shore holding guns, telling him that he could not leave but that he would
be set free on the other side of the river. Altamirano-Argeta explained, “[t]hey
put us in one raft and they grabbed [drug bundles] in a different raft.” The
kidnappers then followed, carrying guns, behind the raft Altamirano-Argeta was
in. Once the rafts crossed the river and arrived in the United States, the
kidnappers took the hostages across a wall and, he testified, told them to run.
However, Altamirano-Argeta did not run and instead waited to be picked up by
Border Patrol so that he could be rescued. He attempted to inform the agents
who apprehended him that he been kidnapped but was unsuccessful because the
agents were occupied with apprehending other people in the area. Altamirano-
Argeta was taken, along with several other people, to an immigration office,
where he told an agent that he had been kidnapped, although it seemed to him

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                                 No. 11-40387

that the agent did not write that information down. However, Altamirano-
Argeta admitted that he did not tell the agent about being kidnapped until after
his statement had been taken and after he realized that he was going to be
processed to go to court.
      Three Border Patrol agents—Agents Zamora, Yanez, and Cortez—who
were part of the group that apprehended individuals in the area and during the
time that Altamirano-Argeta was apprehended, also testified. Each agent
testified that: (1) he could not recall whether Altamirano-Argeta was in the
group that he apprehended and took to the station, (2) he did not take
information from people while they were being apprehended because it was not
his job, and (3) no one in the groups apprehended seemed distressed or indicated
that he or she had been kidnapped.
      The agent who interviewed Altamirano-Argeta at the station, Agent Pena,
testified that he read Altamirano-Argeta his Miranda warnings and then took
a statement. Agent Pena explained that Altamirano-Argeta did not say that he
had been kidnapped while giving a statement. While giving his statement,
although he was asked about where, when, and how he had entered, or whether
he had “anything else” to tell Agent Pena, Altamirano-Argeta did not say that
he had been kidnapped. Altamirano-Argeta did not seem to Agent Pena to be
injured or distressed during their interaction.
      After taking Altamirano-Argeta’s statement, Agent Pena gave the file he
had created for Altamirano-Argeta to his supervisor and began cleaning
Altamirano-Argeta to prepare him to appear in court. Agent Pena explained
that while he was cleaning Altamirano-Argeta, Altamirano-Argeta said, “I got
kidnapped in Mexico. You think I wanted to come?” Agent Pena did not report
this conversation to his supervisor, who had Altamirano-Argeta’s file, because
he felt that Altamirano-Argeta had not behaved “like most of the people that get



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kidnapped” because such people “tell you right away, as soon as they see you
. . . . Or they keep talking about it.”
      Altamirano-Argeta’s brother, Leslie Altamirano, testified that around
August 7, 2010, he received the first of five phone calls. In that first call, the
caller said that Altamirano-Argeta “was being detained and that [Leslie] had to
get some money in order for them to release him.” The caller initially demanded
$10,000 but later dropped the demand to $5,000, which the Altamirano family
agreed to pay. Leslie characterized the situation as being “like a kidnapping.”
Before the family could finish gathering the money, the phone calls stopped
because Altamirano-Argeta had been detained by border patrol.
      The district court instructed the jury that if it determined that all the
elements of illegal reentry were met, it should then consider whether
Altamirano-Argeta’s “actions were justified by duress or coercion.” The jury
found Altamirano-Argeta to be guilty as charged.
      The government objected to the Sentencing Guidelines calculation
contained in the Pre-Sentence Investigation Report generated for Altamirano-
Argeta on the ground that an enhancement for obstruction of justice should have
been applied. The government argued that Altamirano-Argeta perjured himself
in providing an untruthful story at trial to persuade the jury to acquit him. At
sentencing, the district court found that Altamirano-Argeta’s testimony on the
issue of duress was false speaking; hence, the district court announced that it
would apply the two-level obstruction of justice enhancement. With the two-
level enhancement for obstruction of justice, Altamirano-Argeta’s guidelines
range was 78-97 months. The district court sentenced him to 78 months and
three years of supervised release.
                           STANDARD OF REVIEW
      “In order to apply an enhancement [for obstruction of justice], the district
court must find evidence supporting the enhancement to a preponderance of the

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evidence.” United States v. Anderson, 560 F.3d 275, 283 (5th Cir. 2009). This
court “review[s] a district court’s finding of obstruction of justice for clear error.”
United States v. Holmes, 406 F.3d 337, 363 (5th Cir. 2005) (quoting United
States v. Powers, 168 F.3d 741, 752 (5th Cir.1999)) (internal quotation marks
omitted). “A factual finding is not clearly erroneous as long as it is plausible in
light of the record as a whole.” Id. (internal quotation marks and citations
omitted). “This is particularly true where a sentencing court’s imposition of a
§ 3C1.1 enhancement is based, at least in part, upon an evaluation of a witness’
credibility.” Id. (quoting Powers, 168 F.3d at 752) (internal quotation marks
omitted).
                                    ANALYSIS
      In challenging the application of the obstruction-of-justice enhancement,
Altamirano-Argeta contends that there is no evidence in the record that is
contradictory to his testimony regarding duress and, therefore, the district court
clearly erred in its perjury finding. Section 3C1.1 of the Sentencing Guidelines
provides:
             If (1) the defendant willfully obstructed or impeded, or
             attempted to obstruct or impede, the administration of
             justice with respect to the investigation, prosecution, or
             sentencing of the instant offense of conviction, and (2)
             the obstructive conduct related to (A) the defendant’s
             offense of conviction and any relevant conduct; or (B) a
             closely related offense, increase the offense level by 2
             levels.
U.S.S.G. § 3C1.1 (emphasis in original).
      In United States v. Dunnigan, 507 U.S. 87 (1993), the Supreme Court
explained that:
             Of course, not every accused who testifies at trial and is
             convicted will incur an enhanced sentence under §
             3C1.1 for committing perjury. As we have just
             observed, an accused may give inaccurate testimony


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             due to confusion, mistake, or faulty memory. In other
             instances, an accused may testify to matters such as
             lack of capacity, insanity, duress, or self-defense. Her
             testimony may be truthful, but the jury may
             nonetheless find the testimony insufficient to excuse
             criminal liability or prove lack of intent.
Id. at 95. Because of these possibilities, the Court laid out the following
instructions for district courts:
             [I]f a defendant objects to a sentence enhancement
             resulting from her trial testimony, a district court must
             review the evidence and make independent findings
             necessary to establish a willful impediment to or
             obstruction of justice, or an attempt to do the same,
             under the perjury definition we have set out.
Id. The Court defined perjury as follows:
             In determining what constitutes perjury, we rely upon
             the definition that has gained general acceptance and
             common understanding under the federal criminal
             perjury statute, 18 U.S.C. § 1621. A witness testifying
             under oath or affirmation violates this statute if she
             gives false testimony concerning a material matter with
             the willful intent to provide false testimony, rather
             than as a result of confusion, mistake, or faulty
             memory.
Id. at 94.
      In this case, the record as a whole provides sufficient evidence to support
the district court’s finding that Altamirano-Argeta intentionally testified falsely.
There is an inconsistency between the testimony of Altamirano-Argeta and the
supposedly corroborative testimony of his brother. Altamirano testified that his
kidnappers were drug smugglers who were using him and the other captives as
decoys: they forced him to cross the river at the same time as their drugs, yet
ordered him to run free, as promised, once the captives crossed to border fence
into the United States. This story is in tension with the kidnapping-for-ransom
story offered by his brother. His brother testified that leading up to Altamirano-

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Argeta’s apprehension by border patrol, he had been in kidnapping-like
negotiations to secure Altamirano-Argeta’s release from his captors. In the final
conversation between Leslie and the kidnappers, it was agreed that Leslie would
pay $5,000 for Altamirano-Argeta’s release. It is unlikely that having held
Altamirano-Argeta for three weeks and expended the effort to negotiate a
promise to receive $5,000 from Leslie in return for Altamirano-Argeta’s release,
the kidnappers would immediately turn around and release Altamirano-Argeta
unconditionally before receiving the ransom.
      The district court’s firsthand discrediting of Altamirano-Argeta’s story is
further supported by the lack of corroboration from Altamirano-Argeta’s fellow
captives. The agents who apprehended the group of approximately 27 aliens and
the agent who transported them to the processing station all testified that none
of the aliens, who were supposedly co-captives along with Altamirano-Argeta,
looked distressed. They also testified that none of the aliens mentioned that
they had been kidnapped, as testified to by Altamirano-Argeta.
      Moreover, the district court’s discrediting of Altamirano-Argeta’s story has
other indicia of support. Following his apprehension, Altamirano-Argeta was
processed by Agent Pena at the immigration station during the course of which
he was asked a series of questions, including when, where, and how he entered
the United States. In response to the questions, Altamirano-Argeta did not
mention that he had been kidnapped and forcibly brought into the United
States. When asked as a final question whether “there was anything else that
he would like to say at [that] time,” Altamirano-Argeta made no mention of his
kidnapping. Even after he was informed that “he could make any additions,
deletions or changes to the form” and had an opportunity to review his answers,
Altamirano-Argeta still failed to mention his kidnapping. By his own admission,
it was not until after his statement had been taken and he realized that he was



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going to be processed to go to court that Altamirano-Argeta decided to tell Agent
Pena that he had been kidnapped.
      In addition, Altamirano-Argeta had spent over twenty years living in the
United States. Ten of his eleven siblings, his ex-wife, and his four children still
live in the United States. After his deportation in March 2010, he spent only two
months in Honduras before making his way, coincidentally, to the border city of
Reynosa, Mexico, where he claimed he was kidnapped immediately upon arrival
and forced to reenter the United States.
      Against such factual backdrop, and having heard Altamirano-Argeta
testify on direct examination, on cross examination, on redirect examination, on
re-cross examination, and in response to the court’s own clarifying questions, the
district court was well-positioned to evaluate Altamirano-Argeta’s credibility.
As sentencing, the district court specifically stated, “[w]hat I’m relying upon is
his testimony within the record and it being not credible. And he did not – he
was not a credible witness. The Court being – having him in its presence while
he testified did not come across as credible in the story that he told as well.” The
district court concluded that Altamirano-Argeta gave false testimony concerning
a material matter with the willful intent to provide false testimony:
            You’re not going to convince me that he did other –
            anything other than attempt to lie his way out of being
            found guilty in this case. I believe that the story he told
            was incredible, was fictional, was fanciful; was a
            creation of his desire to avoid the long prison sentence
            that he was facing because he had – he knew he had
            this drug-trafficking conviction on his record. . . . But I
            do know that it is the Court’s belief and finding by a
            preponderance of the evidence that his testimony on the
            key issue of duress, the affirmative defense in this case,
            it was at the heart of the case, material to what the jury
            was going to do, was a lie and fictional. It is – doesn’t
            comport with reality, doesn’t comport with any
            experience the Court has – or case the Court has ever


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              had before it, both publicly and privately. I’m not going
              to go outside the record though, in terms of support for
              my finding . . . but it belies common sense.1
       Because the record as a whole supports the district court’s finding that
Altamirano-Argeta committed perjury, the court’s imposition of a two-level
enhancement for obstruction of justice was not clearly erroneous. See United
States v. Mudekunye, 646 F.3d 281, 286-87 (5th Cir. 2011); United States v.
Flores, 640 F.3d 638, 644 (5th Cir. 2011). Altamirano-Argeta’s sentence is
AFFIRMED.




       1
         The aforementioned adequate basis for the district court’s finding supports the district
court’s valid assessment of credibility and in no way depends on speculation about jury
deliberation time. The district court’s own reasoning demonstrates that it was validly
assessing Altamirano-Argeta’s testimony at trial, and was not in any way punishing him for
his election to go to trial and to testify in his own defense.

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