           Case: 17-14011   Date Filed: 06/08/2020   Page: 1 of 8



                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-14011
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:17-cr-00035-EAK-MAP-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

ANGEL LUIS PIZARRO,

                                                        Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (June 8, 2020)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Angel Pizarro appeals his 84-month sentence for possession of a firearm as a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He argues

that the district court erred in applying a two-level enhancement for obstruction of

justice because it failed to make adequate factual findings as to how and why his

conduct in threatening an individual identified as N.A. and having N.A. claim

ownership responsibility of the firearm to law enforcement was obstructive.

      In examining the application of a two-point enhancement for obstruction of

justice under the Guidelines, we review the district court’s factual findings for

clear error and its application of the Guidelines to those facts de novo. United

States v. Plasencia, 886 F.3d 1336, 1343 (11th Cir. 2018), cert. denied, 139 S. Ct.

837 (2019). However, sentencing issues raised for the first time on appeal are

reviewed for plain error. United States v. Doe, 661 F.3d 550, 565 (11th Cir. 2011).

To preserve an objection to the sentence, a defendant must “raise that point in such

clear and simple language that the trial court may not misunderstand it.” United

States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (quotation marks omitted);

see also Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020)

(concluding a defendant must simply bring a claimed sentencing error to the

district court’s attention to preserve the issue for appeal). A defendant “fails to

preserve a legal issue for appeal if the factual predicates of an objection are

included in the sentencing record, but were presented to the district court under a


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different legal theory.” Massey, 443 F.3d at 819. Under the plain error standard, a

defendant must show that there was an error, it was plain, it affects his substantial

rights, and it “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 818 (quotation marks omitted).

      Section 3C1.1 of the U.S. Sentencing Guidelines provides that a defendant

will receive a two-level enhancement if:

      (1) [he] 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) [his] offense of conviction
      and any relevant conduct; or (B) a closely related offense.

U.S.S.G. § 3C1.1. Examples of conduct to which the enhancement applies include

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

witness, or juror, directly or indirectly, or attempting to do so” and “providing a

materially false statement to a law enforcement officer that significantly obstructed

or impeded the official investigation or prosecution of the instant offense.” Id.

§ 3C1.1, comment. (n.4(A), (G)). A defendant is responsible for his own

obstructive conduct, as well as the obstructive conduct of another that he “aided or

abetted, counseled, commanded, induced, procured, or willfully caused.” Id.

§ 3C1.1 comment. (n.9). Conduct that occurred prior to the start of the

investigation into the instant offense may warrant application of the enhancement




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if it was “purposefully calculated, and likely, to thwart the investigation or

prosecution of the offense of conviction.” Id. § 3C1.1 comment. (n.1).

      In United States v. Alpert, we examined whether the district court properly

applied the enhancement for obstruction of justice where the defendants had fled to

avoid arrest, continued to engage in criminal activity by producing false

documents, and with respect to one defendant, given a false name upon arrest.

28 F.3d 1104, 1106-07 (11th Cir. 1994). We determined that the enhancement did

not apply to the defendants’ flight from arrest, but their other conduct might justify

the enhancement if it significantly hindered the investigation or prosecution of

their offenses. Id. at 1107. We explained that some conduct would only warrant

the enhancement if it actually obstructed justice, where, for example, obstructive

conduct that involved making a false statement to a law enforcement officer

requires a district court to find that a statement was false and material and explain

how the statement significantly obstructed or impeded the investigation or

prosecution. Id.

      We further concluded in Alpert that the district court’s factual findings were

insufficient for purposes of determining whether the defendants had engaged in

obstructive conduct. Id. at 1108. We reasoned that the application of the

enhancement was a fact-specific inquiry and the district court’s “inference” that the

defendant’s conduct “slowed down the criminal process [did] not permit this Court


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to review the enhancement with a sufficient understanding of the factual

circumstances underlying the district court’s decision.” Id. Thus, we determined

that meaningful appellate review required the district court to explain “what each

defendant did, why that conduct warrant[ed] the enhancement, and, if applicable,

how that conduct actually hindered the investigation or prosecution of the offense.”

Id.

      Even if the district court failed to make factual findings as to the application

of the obstruction enhancement, remand is unnecessary if the record clearly

reflects and supports the basis for the enhancement. United States v. Taylor,

88 F.3d 938, 944 (11th Cir. 1996); United States v. Guevara, 894 F.3d 1301,

1312 (11th Cir. 2018) (stating that we “may overlook the lack of supportive factual

findings and nevertheless affirm the imposition of the § 3C1.1 enhancement only if

the record clearly reflects the basis for the enhancement and supports it” (quotation

marks omitted)).

      In United States v. Banks, we considered a challenge to the district court’s

application of the obstruction enhancement where the defendant had secured

release on bond after giving a false name and identification document to the

arresting officers. 347 F.3d 1266, 1267 (11th Cir. 2003). We concluded that we

could not review the application of the enhancement until the district court made

additional findings, because providing a false name or documentation during an


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arrest would not justify the enhancement unless it significantly hindered the

investigation or prosecution and the district court did not make any findings as to

that issue. Id. at 1269. We held that “it is not enough for the sentencing court to

adopt the uncontested portions of the PS[I], hear the defendant’s objections and the

arguments of counsel, and recite its agreement with the arguments of the

prosecutor and the recommendation of the PS[I].” Id. We additionally concluded

that the record did not support the enhancement, given that we were “left to

speculate about how the bond proceedings, investigation or prosecution would

have been different had [the defendant]’s true identity been known.” Id. at

1270-71.

      In Guevara, we determined that we could not review the district court’s

application of the obstruction enhancement because the district court failed to

make factual findings and explain how the defendant’s conduct was obstructive.

894 F.3d at 1311. Noting that the district court had made vague, equivocal

statements about the defendant’s tax returns, his use of a straw buyer to commit the

crime for which he was charged, and misstatements that he had made to law

enforcement, we concluded that the record did not clearly demonstrate how the

defendant’s behavior warranted the enhancement. Id. at 1312. Specifically, we

stated that the defendant’s actions with respect to his tax returns took place years

before his offense conduct, yet the record did not show how the defendant’s


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actions were calculated to and actually did thwart the investigation or prosecution

of the instant offense. Id. We further noted that it was unclear how the defendant

willfully obstructed or attempted to obstruct justice by using of a straw buyer to

purchase a sports car. Id. at 1312-13. Finally, we stated that the record did not

show that the defendant’s false statements to law enforcement officers

substantially hindered the investigation or prosecution, particularly given that the

district court stated that the defendant’s false statements were not an impediment to

the officers. Id. at 1313.

      As an initial matter, plain error review is inapplicable because Pizarro’s

arguments regarding the application of the obstruction of justice enhancement

before the district court were sufficient to preserve his claim on appeal.

      The district court erred in applying the obstruction enhancement because its

factual findings were inadequate for purposes of meaningful appellate review. The

court did not specify whether Pizarro’s conduct was obstructive because N.A. had

provided materially false information to a law enforcement officer, which Pizarro

had induced or willfully caused, or because Pizarro had threatened N.A. and his

conduct was akin to threatening a co-defendant, witness, or juror. Furthermore, the

basis for the enhancement is not clearly reflected in the record, because the district

court did not make additional factual findings as to how the conduct----making a

false statement to a law enforcement officer or threatening a person----warranted


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the enhancement under the Guidelines. Accordingly, we vacate and remand

Pizarro’s sentence for further proceedings.

      VACATED AND REMANDED.




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