                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                TENTH CIRCUIT                                 June 6, 2012
                       ___________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.                                                            No. 11-3164
RICARDO LIMON, a/k/a Gordo,                    (D.C. No. 2:09-CR-20119-JWL-JPO-11)
                                                              (D. Kan.)
       Defendant-Appellant.
                   ____________________________________
                           ORDER AND JUDGMENT*
                      ____________________________________

Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.**
                 ____________________________________

       Defendant pleaded guilty to Count 1 of the Second Superseding Indictment, which

charged conspiracy to distribute and to possess with intent to distribute more than 5

kilograms of cocaine, more than 50 grams of methamphetamine, and a detectable amount

of marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)(II), (b)(1)(A)(viii),

(b)(1)(D), 846, and 18 U.S.C. § 2. While in custody awaiting sentencing, Defendant

threatened a co-defendant, Cesar Bonilla-Montiel, forcing Mr. Bonilla to sign affidavits

that exonerated Defendant of involvement in drug-related criminal activity.              At

       *
        This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       **
         After examining the parties’ briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
sentencing, the district court determined Defendant’s base offense level was 36. See

U.S.S.G. § 2D1.1(c)(2) (2010). The district court then added two levels for obstruction

of justice pursuant to § 3C1.1 for Defendant’s conduct in forcing Mr. Bonilla to sign

affidavits exculpating Defendant.     The district court found Defendant “engaged in

coercive behavior which caused Mr. Bonilla to prepare false affidavits exonerating

[Defendant].” Rec. vol. 2, at 814–15. The court further commented: “I do not believe

that Mr. Bonilla signed the affidavits out of the kindness of his heart. I believe he felt

threatened . . . by the presence of [Defendant] . . . .” Id. at 815. “[S]o [Defendant’s

offense level adjustment for] obstruction of justice by procuring these false statements

was appropriately administered. . . . I’m basing my finding on the affidavit issue, and that

is sufficient as far as I am concerned.” Id. at 815–16. The two-level adjustment for

obstruction of justice resulted in an offense level of 38.      The district court denied

Defendant’s request for a downward adjustment for acceptance of responsibility under

U.S.S.G. § 3E1.1. Based on Defendant’s criminal history of I and an offense level of 38,

the Guidelines range was 235 to 293 months.           Without the obstruction of justice

adjustment, the offense level would have been 36, with an applicable Guidelines range of

188 to 235 months.       The district court then sentenced Defendant to 235 months

imprisonment. Defendant now appeals. Exercising jurisdiction under 18 U.S.C. § 3742,

we affirm.

       Defendant only challenges the procedural reasonableness of his sentence, “which

requires, among other things, a properly calculated Guidelines range.” United States v.

Saavedra, 523 F.3d 1287, 1289 (10th Cir. 2008). “When evaluating the district court’s

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interpretation and application of the Sentencing Guidelines, we review legal questions de

novo and factual findings for clear error, giving due deference to the district court’s

application of the guidelines to the facts.” United States v. Mollner, 643 F.3d 713, 714

(10th Cir. 2011) (quoting United States v. Munoz-Tello, 531 F.3d 1174, 1181 (10th Cir.

2008)) (internal quotations marks omitted). “To be clearly erroneous, the finding must be

‘simply not plausible or permissible in light of the entire record on appeal.’” United

States v. Zapata, 546 F.3d 1179, 1192 (10th Cir. 2008) (quoting United States v. Morales,

108 F.3d 1213, 1225 (10th Cir. 1997)).

       Defendant first argues “the district court failed to make any particularized findings

concerning [Defendant’s] intent to obstruct justice,” and therefore the two-level increase

for obstruction of justice is erroneous. Aplt. Br. at 10. Section 3C1.1 of the Guidelines

reads as follows:

       If (A) 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 (B) the obstructive conduct related to (i) the defendant’s
       offense of conviction and any relevant conduct; or (ii) a closely related
       offense, increase the offense level by 2 levels.

(emphasis added). The Guidelines’ commentary lists examples of obstruction of justice,

including: “threatening, intimidating, or otherwise unlawfully influencing a co-defendant,

witness, or juror, directly or indirectly, or attempting to do so.” Id. § 3C1.1 cmt. n.4(A).

       Defendant argues our decision in United States v. Gardiner, 931 F.2d 33 (10th Cir.

1991), requires “the district court to make an express finding concerning the defendant’s

intent” to obstruct justice. Aplt. Br. at 9 (emphasis added). Defendant’s reliance on


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Gardiner is misplaced. In Gardiner, the defendant repeatedly used an alias in court

proceedings and did not confirm his true identity until the F.B.I. had determined his

identity based on his fingerprints. Gardiner, 931 F.2d at 35. The presentence report

stated the defendant intended to obstruct justice by using an alias. Id. The district court

adopted the presentence report and added two levels to the defendant’s offense level for

obstruction of justice. Id. We affirmed, determining the facts supported the district

court’s finding that the defendant intended to obstruct justice. Id. Next, we said the

district court had made the necessary finding of defendant’s intent to obstruct justice by

adopting the presentence report. Id. We said in Gardiner that “a defendant must have

consciously acted with the purpose of obstructing justice.” Id. But we didn’t require the

district court to make an express finding to that effect. Tenth Circuit precedent, in fact,

indicates intent to obstruct justice can be inferred from the evidence. For example, in

United States v. Bedford, 446 F.3d 1320, 1325 (10th Cir. 2006), a defendant admitted he

swallowed cocaine to prevent the police from finding the drugs on him because

possession of drugs would result in a revocation of his probation.          We held this

“admission indicates that he acted consciously . . . with the purpose of obstructing

justice.” Id. (emphasis added). In United States v. Pretty, 98 F.3d 1213, 1221 (10th Cir.

1996), we allowed a district court to make “fairly conclusory findings” regarding a

defendant’s intent to commit perjury and enhance his sentence for obstruction of justice.

Likewise, in United States v. Hankins, 127 F.3d 932, 934–35 (10th Cir. 1997), we held a

defendant’s intent to obstruct justice can be shown based on his intent to conceal material



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evidence when a defendant’s conduct indicates “sufficiently unique, conscious action

with a purpose of obstructing justice.”

       In our case, the district court found Defendant “engaged in coercive behavior

which caused Mr. Bonilla to prepare false affidavits exonerating [Defendant].” Rec. vol.

2, at 814–15. The court further averred: “I do not believe that Mr. Bonilla signed the

affidavits out of the kindness of his heart. I believe he felt threatened . . . by the presence

of [Defendant] . . . so [Defendant’s] obstruction of justice by procuring these false

statements was appropriately administered.” Id. at 815. In United States v. Heckard, 238

F.3d 1222, 1232–33 (10th Cir. 2001), we used similar findings by a district court to

affirm the obstruction of justice adjustment. The defendant had threatened and forced a

witness to sign a sworn statement exculpating the defendant. Id. at 1232. We concluded

a “district court could easily have found Defendant’s act to be an unlawful attempt to

influence a witness, suborn perjury, or produce a false document during an official

investigation.” Id. The findings by the district court in Heckard align with the findings

in the instant case because the district court here found Defendant had threatened and

forced Mr. Bonilla to sign a sworn statement exculpating Defendant of involvement in

drug-related criminal activity.    Therefore, the statements by the district court were

sufficient findings that Defendant willfully obstructed justice when he obtained false

affidavits by threat.

       Defendant alternatively argues his intent in obtaining these false affidavits was not

to obstruct justice, but “to save skin and face in a jailhouse setting” because he “did not

wish to be labeled a snitch.” Aplt. Br. at 10–11. The district court rejected this argument

                                             -5-
based on facts sufficient to support a finding that Defendant intended to obstruct justice.

Furthermore, Defendant’s argument the affidavits were to protect himself is implausible

because the affidavits included only information exonerating Defendant from criminal

liability, not information relating to whether Defendant was a jailhouse snitch. In short,

the district court’s finding that Defendant obstructed justice is not clearly erroneous, and

the court was not required to make a separate and explicit finding as to Defendant’s

willfulness. Therefore, Defendant’s sentence is procedurally reasonable.

       AFFIRMED.


                                          Entered for the Court,



                                          Bobby R. Baldock
                                          United States Circuit Judge




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