
USCA1 Opinion

	




                          UNITED STATES OF COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1053                                    UNITED STATES,                                      Appellee,                                          v.                      JUAN JOSE RESTREPO, A/K/A JAIME VALENCIA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Anthony M. Cardinale and Nicholas J. DiMauro on brief for             ____________________     ___________________        appellant.            Donald K. Stern, United  States Attorney, and  Emily R.  Schulman,            _______________                                __________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                    March 24, 1995                                 ____________________                 Per  Curiam.   Defendant-appellant  Jaime  Valencia pled                 ___________            guilty  to  conspiracy  to  possess cocaine  with  intent  to            distribute it.   See  21 U.S.C.    846.   The  district court                             ___            sentenced appellant to 188  months imprisonment followed by a            period of supervised release.   Valencia now appeals, arguing            that the district court erred in increasing his offense level            under U.S.S.G.   3C1.1  for obstruction of justice.   For the            following reasons, we affirm.                                          I.                 Valencia  was arrested  on August  31, 1991  following a            government "sting" operation.  On September 3, 1991, prior to            his initial appearance before  a magistrate judge, a pretrial            services officer interviewed him for the purpose of making  a            recommendation about his pretrial release.  Valencia provided            false   identifying   information   during  this   interview,            including the false  name "Juan Jose Restrepo."  The pretrial            services  officer  prepared a  report  which  stated that  "a            record  check  reveals no  criminal  history."   The  report,            however,   recommended  that   Valencia,   referred   to   as            "Restrepo,"  be detained on  the grounds that  he presented a            risk of flight and danger to the community.                 At the  initial appearance,  the government moved  for a            detention hearing  under 18 U.S.C.    3142(f).   This hearing            was  held before the magistrate judge  on September 11, 1991.            When asked to spell  his name, Valencia, who was  under oath,                                         -2-            responded,  "R-E-S-T-R-E-P-O."   Counsel for  Valencia cross-            examined the government's sole witness, Special Agent Russell            Protentis.    At  the  conclusion of  the  hearing,  Valencia            consented to the  entry of an  order of detention,  reserving            his right to produce  conditions of release at a  later time.            On  February 7, 1992, an FBI  investigation revealed his true            identity,  as well as  the fact that  he was a  fugitive from            drug and firearm charges in New York.                 Valencia pled  guilty on April 8, 1993.  His presentence            investigative report  recommended a two  level increase under            U.S.S.G.    3C1.1 for  obstruction of justice.   A sentencing            hearing was conducted, and  sentence was imposed, on November            9, 1993.  The district  court found that at least  two events            made an  upward adjustment  under    3C1.1 appropriate.   The            first  event  was  Valencia's  identification of  himself  as            "Restrepo"  in  his  interview  with  the  pretrial  services            officer.  The  second event  was his giving  the false  name,            under  oath, at  the  outset of  the  detention hearing  when            "detention was still an open issue."                                         II.                 Pursuant to   3C1.1, the sentencing court shall increase            the  offense  level  by  two "[i]f  the  defendant  willfully            obstructed or  impeded, or  attempted to obstruct  or impede,            the  administration  of  justice  during  the  investigation,            prosecution, or sentencing of the instant offense."  One type                                         -3-            of  conduct to  which this  enhancement applies  is providing            "materially  false  information to  a  .  .  .   magistrate."            U.S.S.G.     3C1.1, comment.  n.  3(f).   An  obstruction  of            justice increase is also  warranted when a defendant provides            materially false information to  a pretrial services  officer            who  is conducting a bail  investigation for the  court.  See                                                                      ___            United States v. St. James, 38 F.3d 987, 988 (8th Cir.  1994)            _____________    _________            (observing that commentary  note 3(h) describes very  similar            conduct).  A material statement  is a "statement . . .  that,            if  believed,  would tend  to influence  or affect  the issue            under determination."  U.S.S.G.   3C1.1, comment. n. 5.                 Valencia argues that his false identification of himself            as  "Restrepo"  to  the  pretrial services  officer  did  not            warrant  an enhancement  under    3C1.1.   In particular,  he            contends that the  officer's investigation  was not  impeded,            and  could  not  be  impeded,  since  a  routine  fingerprint            analysis  performed by  the FBI  revealed his  true identity.            This  argument  is  misplaced.    Although  materially  false            statements made  to law enforcement officials  do not warrant            an  enhancement  unless  they  "significantly  obstructed  or            impeded  the official  investigation  or  prosecution of  the            instant offense," see  U.S.S.G.   3C1.1  n.3(g), the same  is                              ___            not  true of  materially false  statements made  to probation            officers  and, by  analogy,  pretrial services  officers,  in            respect to  an investigation  for the  court, see U.S.S.G.                                                             ___                                         -4-            3C1.1, comment. n. 3(h);  United States v. St. Cyr,  977 F.2d                                      _____________    _______            698, 705 & n.6 (1st Cir. 1992).  Accordingly, no showing that            pretrial services' investigation was significantly obstructed            was required.1                 We add that Valencia's true identity was material to the            officer's  investigation, even  if the  false information  he            provided    did   not   ultimately   affect   the   officer's            recommendation.   His  deliberate misrepresentation  had  the            potential to do so.  No  more is required.  Cf. United States                                                        ___ _____________            v. Harrison, 42 F.3d  427, 430 (7th Cir. 1994)  (holding that               ________            whether the magistrate judge ultimately relied on defendant's            false statement in ordering his  detention is not relevant to            the  application  of  the   enhancement);  United  States  v.                                                       ______________            Mafanya,  24   F.3d  412,  415  (2d   Cir.  1994)  (affirming            _______            enhancement  where defendant  appeared before  the magistrate            judge using a  false identity even  though his true  identity            was discovered before the detention hearing).                                            ____________________            1.  We note that Valencia's  true identity was not discovered            until  some   months  after  the  pretrial  services  officer            prepared  his  report  and  made his  recommendation  to  the            magistrate judge.   Because  Valencia provided a  false name,            the officer's  report contained inaccurate  information about            his criminal history.  Such reports must  be prepared quickly            and, in  any event, prior to  the detention hearing.   See 18                                                                   ___            U.S.C.    3154  (requiring the  pretrial services  officer to            collect,  verify, and  report information  pertaining  to the            pretrial  release  of  a  defendant "prior  to  the  pretrial            release hearing.")   Under the circumstances,  although we do            not rely upon it, we think that Valencia's deception actually            impeded the officer in the performance of his task.                                         -5-                 In sum, we conclude  that Valencia's false statements to            the pretrial services officer justified the enhancement under               3C1.1.   Under the  circumstances, we  need not  reach the            issue whether his identification  of himself as "Restrepo" at            the  detention  hearing  could constitute  an  obstruction of            justice in light of  the fact that he assented  to detention.            Accordingly, the  judgment below  is affirmed.   See Loc.  R.                                                 ________    ___            27.1.                                         -6-
