                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4822


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JUAN ERNESTO ORTIZ-RODRIGUEZ,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. Richard L. Voorhees, District Judge. (5:15-cr-00073-RLV-DCK-4)


Submitted: June 23, 2017                                          Decided: July 14, 2017


Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Steven T. Meier, MEIER LAW, Charlotte, North Carolina, for Appellant. Amy Elizabeth
Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Juan Ernesto Ortiz-Rodriguez (Ortiz) pled guilty pursuant to a plea agreement to

conspiracy to distribute and possess with intent to distribute methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2012). The district court calculated

Ortiz’s Guidelines range under the U.S. Sentencing Guidelines Manual (2015) at 120 to

135 months’ imprisonment and sentenced him to 120 months’ imprisonment.

       On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that there are no meritorious issues for appeal, but questioning whether the

district court reversibly erred in determining that Ortiz was not entitled to relief under the

safety valve, 18 U.S.C. § 3553(f) (2012), enhancing Ortiz’s Guidelines offense level

under USSG § 3C1.1 for obstruction of justice, and denying a reduction to his Guidelines

offense level under USSG § 3E1.1 for acceptance of responsibility. Ortiz was informed

of his right to file a pro se supplemental brief, but he has not done so. The Government

elected not to file a brief and does not seek to enforce the appeal waiver in Ortiz’s plea

agreement. 1 We affirm.

       The safety valve directs district courts in limited circumstances to impose a

sentence pursuant to the Sentencing Guidelines regardless of any statutory mandatory

minimum sentence and applies only when certain requirements are met. 18 U.S.C.

§ 3553(f). Among these is the requirement that the defendant “truthfully provide[] to the

       1
        Because the Government fails to assert the waiver as a bar to the appeal, we may
consider the issues raised by counsel and conduct an independent review of the record
pursuant to Anders. United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).


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Government all information and evidence the defendant has concerning the offense or

offenses that were part of the same course of conduct or of a common scheme or plan”

not later than the sentencing hearing. Id. § 3553(f)(5). The safety valve “requires broad

disclosure from the defendant.” United States v. Henry, 673 F.3d 285, 293 (4th Cir.

2012) (internal quotation marks omitted). “The district court is obligated to determine

whether a defendant has truthfully provided the [G]overnment with all known relevant

information, and the court may consider any false statements a defendant may have made

when evaluating the defendant’s credibility.” Id. A district court’s decision regarding

eligibility for relief under the safety valve is a question of fact reviewed for clear error.

Id. at 292. This standard of review permits reversal only if this court “is left with the

definite and firm conviction that a mistake has been committed.” Id. (internal quotation

marks omitted).

       Here, the Government’s unobjected-to proffer—on which the district court

properly relied, see United States v. Slade, 631 F.3d 185, 188 (4th Cir. 2011), established

that, during a session with prosecutors to prepare Ortiz for testimony in the trial of his

codefendant, Ortiz made a false statement denying the involvement of the codefendant in

the conspiracy.     Because Ortiz did not truthfully provide the Government with

information he had concerning his offense, we conclude that the district court did not

clearly err in denying him relief under the safety valve.

       Next, we review for clear error the district court’s determination that Ortiz

obstructed justice under USSG § 3C1.1. United States v. Andrews, 808 F.3d 964, 969



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(4th Cir. 2015), cert. denied, 136 S. Ct. 1392 (2016). Section 3C1.1 of the Guidelines

instructs a district court to increase a defendant’s offense level by two levels 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.

USSG § 3C1.1. Application Note 4(G) states that “providing a materially false statement

to a law enforcement officer that significantly obstructed or impeded the official

investigation or prosecution of the instant offense” warrants the enhancement.

Id. cmt. n.4(G).

       We conclude that the district court did not clearly err in determining that Ortiz

obstructed justice under § 3C1.1.         Ortiz’s statement to prosecutors denying his

codefendant’s involvement in the conspiracy was both material and false. A statement is

material under § 3C1.1 when “if believed,” the statement “would tend to influence or

affect the issue under determination.” USSG § 3C1.1 cmt. n.6. Ortiz’s statement during

the trial preparation session falsely denying that his codefendant participated in the

conspiracy met the “conspicuously low” bar for materiality. United States v. Gormley,

201 F.3d 290, 294 (4th Cir. 2000) (internal quotation marks omitted). The record also

supports the conclusion that Ortiz’s false statement “significantly obstructed or impeded”

the prosecution of the instant conspiracy offense as to the codefendant by forcing the




                                               4
Government to make what it termed a Giglio 2 disclosure of the statement to the

codefendant and depriving it of credible testimony from Ortiz that the codefendant was

involved in the conspiracy.

       Turning to the district court’s decision to deny Ortiz a reduction to his offense

level under USSG § 3E1.1 for acceptance of responsibility, absent extraordinary

circumstances, a defendant is ineligible for such a reduction when he receives an

offense-level enhancement for obstruction of justice. USSG § 3E1.1 cmt. n.4; see United

States v. Knight, 606 F.3d 171, 175 (4th Cir. 2010). Ortiz has not suggested—and the

record does not reveal the existence of—extraordinary circumstances warranting

application of the reduction in this case. See United States v. Hudson, 272 F.3d 260,

263-64 (4th Cir. 2001) (assigning burden of establishing extraordinary circumstances to

defendant). We therefore conclude that the district court did not clearly err in denying

the reduction. United States v. Burns, 781 F.3d 688, 692 (4th Cir. 2015) (stating standard

of review).

       Finally, in accordance with Anders, we have reviewed the remainder of the record

in this case and have found no meritorious issues for appeal. We therefore affirm the

criminal judgment. This court requires that counsel inform Ortiz, in writing, of the right

to petition the Supreme Court of the United States for further review. If Ortiz requests

that a petition be filed, but counsel believes that such a petition would be frivolous, then


       2
         Giglio v. United States, 405 U.S. 150, 154-55 (1972) (requiring Government to
furnish defendant with material evidence affecting credibility of witnesses).


                                             5
counsel may move in this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Ortiz.

      We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                                          AFFIRMED




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