                                                                                  F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                   APR 10 1997
                                     TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                        Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                             No. 96-2034
 RANDALL MONK,                                           (D.C. No. CR-95-270-JC)
                                                                 (D.N.M.)
           Defendant-Appellant.



                                  ORDER AND JUDGMENT*



Before PORFILIO, McWILLIAMS, and BALDOCK, Circuit Judges.


                After being charged with the March 25, 1995 robbery of a Farmington, New

Mexico bank, 18 U.S.C. § 2113(a) and (d), Defendant-Appellant Randall Monk pleaded

guilty to aiding and abetting the offense on October 26, 1995. Defendant was

subsequently sentenced to 64 months imprisonment. In this appeal, Defendant alleges

that the district court improperly elevated his offense level for obstruction of justice.

Possessing jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.



       *
                This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. Cir. R. 36.3.
       The only question presented in this appeal is whether the district court clearly erred

when it found that Defendant obstructed justice within the meaning of United States

Sentencing Guideline § 3C1.1. Defendant claims that the Government failed to carry its

burden of proof to show that he made a materially false statement to a law enforcement

officer that significantly obstructed or impeded an investigation. See United States v.

Rowlett, 23 F.3d 300, 305 (10th Cir. 1994). See also U.S. Sentencing Guidelines Manual

§ 3C1.1 application notes 3(g) and 4(b). Moreover, Defendant argues that he actually

facilitated his prosecution by making incriminating statements and thus could not have

obstructed justice. Highlighting the fact that the burden of proof is merely a

preponderance of the evidence, the Government responds that the evidence introduced at

the sentencing hearing was sufficient to support a finding of obstruction of justice.1

           The obstructionist behaviors alleged by the Government are that Defendant

claimed that other people had worn his clothes on the day of the crime, other people had

driven his car on the day of the crime, and other people had stolen and used a bank

robbery demand note that he had written as a joke. The Government claims that these

statements necessitated the investigation of each of the named individuals and complete

checks of their backgrounds and whereabouts. Defendant responds that the Federal


       1
              While we find that the district court did not clearly err in finding that
Defendant obstructed justice, we are troubled by the Government’s poor presentation of
evidence at the sentencing hearing. Had the Government been more conscientious in its
handling of this matter at the district court level, it would have been unlikely that valuable
resources would have been consumed by this appeal.

                                              2
Bureau of Investigation would have fully investigated these individuals absent

Defendant’s statements because they had lived with or associated with him.

       We believe that the Government has the better argument. Prior to Defendant’s

assertions that there had been a conspiracy to rob the bank, no evidence existed which

would have led to a conclusion other than one that the robbery had been perpetrated by

one man acting alone. However, after Defendant proffered his allegations, it was

incumbent upon the Bureau to do a thorough investigation in order to support the

Government’s case against the Defendant.

           Accordingly, after reviewing the district court judgment, the briefs, and the

record before us along with hearing oral argument, we find that the district court did not

clearly err in finding that Defendant’s sentence should be enhanced for obstruction of

justice.



       AFFIRMED.

                                                    Entered for the Court,



                                                    Bobby R. Baldock
                                                    Circuit Judge




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