            Case: 17-15180   Date Filed: 08/10/2018   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15180
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 4:17-cr-00049-WTM-GRS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

THOM LUU,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                             (August 10, 2018)

Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 17-15180     Date Filed: 08/10/2018    Page: 2 of 4


      Thom Luu appeals his 27-month sentence, imposed after pleading guilty to

possession of marijuana with intent to distribute. He argues the District Court

clearly erred in enhancing his sentence for obstruction of justice, pursuant to

U.S.S.G. § 3C1.1, based on his failure to disclose his interests in real property on

his financial affidavit seeking appointment of counsel that he submitted to a

Magistrate Judge. He argues that his failure to disclose the properties was not

willful but was instead due to forgetfulness and lack of knowledge.

      When reviewing the imposition of an enhancement for obstruction of justice,

we review the court’s factual findings for clear error and its application of the

factual findings to the sentencing guidelines de novo. United States v. Doe, 661

F.3d 550, 565 (11th Cir. 2011). To support a finding of clear error, we must be left

with a “definite and firm conviction that a mistake has been committed” by the

finding of the district court. United States v. Rothenberg, 610 F.3d 621, 624 (11th

Cir. 2010) (quotation marks omitted). A factual finding cannot be clearly

erroneous when the factfinder is choosing between two plausible views of the

evidence. United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010).

      When the government seeks to apply a sentencing enhancement over a

defendant’s factual objection, it has the burden of proving the facts by a

preponderance of the evidence. United States v. Washington, 714 F.3d 1358, 1361

(11th Cir. 2013). Even so, the sentencing court may make factual findings based


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on undisputed statements in the presentence report. United States v. Hamilton, 715

F.3d 328, 339 (11th Cir. 2013).

      A two-level obstruction-of-justice enhancement is warranted if the defendant

willfully obstructed or impeded the investigation, prosecution, or sentencing of the

instant offense and the obstructive conduct related either to the defendant’s offense

and related conduct or to a closely related offense. U.S.S.G. § 3C1.1. Examples of

covered conduct include providing materially false information to a magistrate

judge and to a probation officer in respect to a presentence investigation for the

court. Id. § 3C1.1, comment. (n.4(F), (H)). The Guidelines also advise courts to

consider when false statements may be the result of confusion, mistake, or faulty

memory, and that not all inaccurate statements reflect a willful attempt to obstruct

justice. Id. § 3C1.1, comment. (n.2). It is well-established in this Circuit that false

statements made during a pretrial hearing to a judge or magistrate judge are

material where they lead to the appointment of counsel, when such appointment is

the issue under consideration at the hearing. United States v. Ruff, 79 F.3d 123,

126 (11th Cir. 1996); United States v. Hitt, 164 F.3d 1370, 1371 (11th Cir. 1999).

      Here, the District Court did not clearly err in enhancing Luu’s sentence for

obstruction of justice. The Court relied on the undisputed facts in the presentence

report that Luu lied to law enforcement officials on multiple occasions in the past

to establish that he had a history of making false statements to authorities. In light


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of this history of false statements, the Court found that Luu concealed his

ownership interests in more than $300,000 of real estate property he had held since

2004 out of dishonesty rather than forgetfulness and lack of knowledge. This was

a plausible reading of the evidence. Accordingly, we cannot conclude that the

District Court clearly erred. Saingerard, 621 F.3d at 1343.

      AFFIRMED.




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