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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-51061                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                December 8, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

RICARDO ANTONIO GUEVARA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-750-1


Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Ricardo Antonio Guevara pleaded guilty to illegal
reentry into the United States after deportation, in violation of 8 U.S.C. §
1326(a) and (b)(1)/(2). The district court sentenced Guevara to seventy months
of imprisonment and three years of supervised release. At sentencing, the
district court overruled Guevara’s objection to a two-level upward adjustment
for obstruction of justice as well as Guevara’s objection to the court’s denial of


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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a downward adjustment for acceptance of responsibility. Guevara now appeals
his sentence. For the reasons that follow, we AFFIRM.
                        FACTUAL BACKGROUND
      On April 14, 2012, Guevara was arrested by United States Border Patrol
agents near Eagle Pass, Texas after admitting that he was not a United States
citizen and was in the United States illegally. While at the Border Patrol
Station, Guevara told agents that he was born in Mexico and was a citizen of
Mexico. Guevara signed a Record of Sworn Statement Affidavit, confirming
this information. Documents obtained from the United States Border Patrol
Prosecutions Office indicated that he was deported to Mexico in May 2011 and
that he had a lengthy criminal history. On September 17, 2012, Guevara
pleaded guilty to illegal reentry into the United States.           During the
presentence investigation interview, Guevara indicated that he was actually
born in Honduras and was a citizen of Honduras, not Mexico. Guevara signed
a Stipulation of Facts letter that confirmed this information.
      Based on these false statements made by Guevara during his arrest, the
Presentence Investigation Report (“PSR”) recommended a two-level upward
adjustment to Guevara’s offense level for obstruction of justice, pursuant to
U.S. Sentencing Guidelines Manual [hereinafter “U.S.S.G.” or “Guidelines”] §
3C1.1.   The PSR emphasized that Guevara provided this same false
information in the past, which led to his previous deportation to Mexico. The
PSR found that “[t]hese statements by the defendant have led to the creation
of false documents or records by the United States Border Patrol.” After
explaining these facts, the PSR concluded that “[p]roducing or attempting to
produce a false, altered, or counterfeit document or record during an official
investigation or judicial proceeding, 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, is considered
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conduct covered under Obstruction of Justice.” (citing § 3C1.1 cmt. n.4(C) and
4(G)). The PSR did not further elaborate on how the present case fell into one
of those two categories.
      Guevara objected to the recommended increase, contending that “he
never had the intent to mislead or provide any materially false statement and
that his actions did not obstruct or impede an official investigation of this
instant offense.” The government, in response, emphasized that the false
information was contained in a sworn statement, “under oath,” given to law
enforcement. The government contended that the false statement was “likely
made with the intent to create a false record and result in deportation to a
country other than Honduras.”
      At the sentencing hearing, Guevara’s counsel argued that because
Guevara admitted to being an illegal alien, Guevara’s false statement about
being from Mexico did not impede the prosecution or investigation of the
offense.   The court pressed defense counsel to provide “evidence” that
Guevara’s false statements did not impede the prosecution or investigation,
stating that “[i]t’s not the government’s burden to prove obstruction. It’s your
burden to prove it’s not obstruction.”
      After a lengthy discussion, the court overruled the objection. The court
also overruled Guevara’s objection to the court’s denial of a downward
adjustment for acceptance of responsibility, referencing the comment in the
Guidelines that only in “extraordinary cases” will a defendant who obstructed
justice be entitled to a downward adjustment for acceptance of responsibility.
See § 3E1.1 cmt. n.4.
      After adopting the legal and factual conclusions contained in the PSR,
the district court calculated Guevara’s Guidelines range as seventy to eighty-
seven months. The court sentenced Guevara to seventy months in prison and
three years of supervised release. Guevara timely appealed his sentence. He
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challenges the district court’s offense level enhancement, pursuant to § 3C1.1,
as well as the court’s refusal to adjust downward for acceptance of
responsibility, pursuant to § 3E1.1.
                          STANDARD OF REVIEW
      “We review the district court’s legal interpretation of the Sentencing
Guidelines de novo and factual findings for clear error.” United States v.
Brooks, 681 F.3d 678, 712 (5th Cir. 2012). A factual finding is clearly erroneous
if it is implausible in light of the record as a whole. See United States v. Huerta,
182 F.3d 361, 364 (5th Cir. 1999).           “When making factual findings for
sentencing purposes, a district court ‘may consider any information which
bears sufficient indicia of reliability to support its probable accuracy.’” United
States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (per curiam) (quoting United
States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (per curiam)). Generally, “a
PSR bears sufficient indicia of reliability, such that a sentencing judge may
consider it as evidence in making the factual determinations required by the
Sentencing Guidelines.” Huerta, 182 F.3d at 364. “A district court, therefore,
‘may adopt the facts contained in a [PSR] without further inquiry if those facts
have an adequate evidentiary basis with sufficient indicia of reliability and the
defendant does not present rebuttal evidence or otherwise demonstrate that
the information in the PSR is unreliable.’” Harris, 702 F.3d at 230 (alteration
in original) (quoting United States v. Trujillo, 502 F.3d 353, 357 (5th Cir.
2007)). On the other hand, conclusory statements in a PSR are not sufficiently
reliable and should not be considered by a district court at sentencing, even in
the absence of rebuttal evidence. See Zuniga, 720 F.3d at 591; see also United
States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993) (“Bald, conclusionary
statements do not acquire the patina of reliability by mere inclusion in the
PSR.”).


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      Facts in a PSR that do have an adequate evidentiary basis can only be
refuted by the defendant with “rebuttal evidence demonstrating that those
facts are ‘materially untrue, inaccurate or unreliable.’” Harris, 702 F.3d at 230
(quoting Huerta, 182 F.3d at 364)). “[M]ere objections” will not suffice. Huerta,
182 F.3d at 364 (quoting United States v. Parker, 133 F.3d 322, 329 (5th Cir.
1998)).
                                DISCUSSION
   A. Did the district court err in placing the burden on Guevara to prove that
      the obstruction of justice sentencing enhancement did not apply?

      As an initial matter, Guevara argues that the district court legally erred
by placing the burden of proof on Guevara to prove that the sentencing level
enhancement did not apply, rather than requiring the government to prove
that the enhancement did apply. We agree with Guevara that generally the
proponent of a sentencing level adjustment, here the government, bears the
burden of establishing the factual predicate justifying that adjustment. See
United States v. Rabanal, 508 F.3d 741, 743 (5th Cir. 2007). However, we
disagree with Guevara’s characterization of the district court’s statements
during the sentencing hearing.      The district court’s repeated requests for
defense counsel to present actual rebuttal evidence, as well as its statements
regarding the “burden,” must be examined in context. The sentencing hearing
transcript indicates that the district court was referring to the general rule
that when a defendant objects to a factual finding in the PSR, the defendant
must present rebuttal evidence to disprove or discredit the information in the
PSR. See Huerta, 182 F.3d at 364 (“A defendant’s rebuttal evidence must
demonstrate that the information contained in the PSR is ‘materially untrue,
inaccurate or unreliable,’ and ‘[m]ere objections do not suffice as competent
rebuttal evidence.’” (Parker, 133 F.3d at 329)).     In framing his objection,
defense counsel focused on one factual finding contained in the PSR—that
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Guevara’s false statements to law enforcement “impeded the prosecution or
investigation in his current offense.” 1 The district court properly narrowed its
focus to that specific finding and applied the general rule regarding objections
to information contained in the PSR. See Brooks, 681 F.3d at 717 (holding that
where defendants failed to present rebuttal evidence, the court was allowed to
rely on the PSR’s finding “that their false statements significantly impeded the
investigation”).
       With that said, Guevara is not required to present evidence to rebut a
PSR’s conclusory finding that his false statements “impeded” the investigation
and prosecution of the instant offense. See Zuniga, 720 F.3d at 591 (“If the
factual recitation [in the PSR] lacks sufficient indicia of reliability, then it is
error for the district court to consider it at sentencing—regardless of whether
the defendant objects or offers rebuttal evidence.” (alteration in original)
(citation omitted)).      The PSR and PSR Addendum referred to § 3C1.1,
Application Note 4(G) and stated that Guevara’s false statements “constitute
providing materially false information to law enforcement, which obstruct or
impede an official investigation or prosecution of the instant offense.” See §
3C1.1 cmt. n.4(G) (explaining that the enhancement applies when a defendant
provides “a materially false statement to a law enforcement officer that
significantly obstructed or impeded the official investigation or prosecution of
the instant offense”). This court previously has explained that when a false
statement to law enforcement is used to justify the § 3C1.1 enhancement
pursuant to Application Note 4(G), “only material statements that significantly



       1 U.S.S.G. § 3C1.1, Application Note 4 provides a “non-exhaustive” list of examples of
conduct to which the sentencing enhancement applies. One of those examples, which was
cited in the PSR, is when a defendant provides “a materially false statement to a law
enforcement officer that significantly obstructed or impeded the official investigation or
prosecution of the instant offense.” Id. at n.4(G). Impeding an investigation or prosecution
is only one element of one example of how § 3C1.1 can be satisfied. Id.
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impede the investigation shall qualify.” United States v. Ahmed, 324 F.3d 368,
372 (5th Cir. 2003) (citing § 3C1.1 cmt. n.4(G)); see also Brooks, 681 F.3d at 717
(“False statements which significantly delay an investigation and prosecution,
even if not successful in preventing it, may provide a sufficient basis for an
obstruction enhancement.”).
       The PSR elaborates on no evidence that Guevara’s false statements
about being a citizen of Mexico, rather than Honduras, caused significant
impediment to the investigation or prosecution of the offense. As defense
counsel pointed out during the sentencing hearing, Guevara admitted that he
was not a citizen of the United States and that he was in the country illegally.
While his country of citizenship is related to the offense, the PSR does not
demonstrate that his false statements caused investigators to expend
significant additional time or resources. See Ahmed, 324 F.3d at 373 (“[C]ourts
have held that statements which do not cause investigators to expend any
additional resources on their investigation are not the type of statements
which significantly impede the investigation.”); cf. United States v. Smith, 203
F.3d 884, 891 (5th Cir. 2000) (finding obstruction of justice enhancement
appropriate where the defendant “sent the FBI investigators on the trail of
unknown suspects . . . in order to obstruct the investigation into her own and
her co-conspirators’ involvement”). The only negative consequence identified
by the PSR is that “official investigation documents have been created based
on his false statements.” 2



       2  The PSR mentions that Guevara previously lied about being a citizen of Mexico,
which resulted in his earlier deportation to Mexico in 2011. The PSR explains that after
Guevara spoke with Border Patrol agents, agents conducted a “[r]ecord check[],” which
revealed this previous deportation. In the section of the PSR entitled “Adjustment for
Obstruction of Justice,” the PSR further discusses false statements tied to that episode, not
the instant investigation and prosecution: “Based on the fact that the defendant has indicated
to law enforcement officers on numerous occasions that he is a citizen of Mexico, which
ultimately resulted in his deportation to Mexico, it is apparent he provided materially false
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       Even if the PSR fails to elaborate an evidentiary basis for its conclusion
that Guevara’s statement significantly impeded the investigation or
prosecution in this case, however, impeding an investigation or prosecution is
just one element of one example of how § 3C1.1 can be satisfied. See § 3C1.1
cmt. n.4(G). The Application Notes make clear that in some circumstances, a
defendant’s conduct alone can warrant application of the enhancement.
Therefore, we will determine whether, putting aside Application Note 4(G), the
district court’s application of the two-level adjustment was still appropriate.


   B. Did the district court clearly err by imposing a two level upward
      adjustment for obstruction of justice under § 3C1.1?

       U.S.S.G. § 3C1.1, entitled “Obstructing or Impeding the Administration
of Justice,” provides:
              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, increase the
              offense level by 2 levels.

Application Notes 4 and 5 provide “non-exhaustive list[s]” of examples of the
type of conduct to which the adjustment does and does not apply.
“[C]omparison of the examples set forth in Application Notes 4 and 5 should
assist the court in determining whether application of this adjustment is
warranted in a particular case.” § 3C1.1 cmt. n.3. Some of these examples are
particularly instructive. For instance, the enhancement does not apply if a
defendant provided “a false name or identification document at arrest, except


information. Additionally, due to the defendant’s false statements to law enforcement
officers, official investigation documents have been created based on his false statements.”
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where such conduct actually resulted in a significant hindrance to the
investigation or prosecution of the instant offense.” § 3C1.1 cmt. n.5(A); see
United States v. Rodriguez, 942 F.2d 899, 902 (5th Cir. 1991) (per curiam)
(finding that defendant’s use of an alias at his arrest did “not support the
adjustment [for obstruction of justice] because the alias did not significantly
hinder the investigation”); see also United States v. Manning, 955 F.2d 770,
775 (1st Cir. 1992) (finding that defendant’s use of false identity at time of
arrest did not significantly hinder the investigation, which would have
proceeded no differently or faster without the misstatement), abrogated on
other grounds recognized by United States v. Gonsalves, 435 F.3d 64 (1st Cir.
2006). Similarly, the enhancement does not apply to a defendant who makes
a “false statement[], not under oath, to law enforcement officers.” § 3C1.1 cmt.
n.5(B). On the other hand, the enhancement applies to a defendant who
produced or attempted to produce “a false, altered, or counterfeit document or
record during an official investigation or judicial proceeding.” § 3C1.1 cmt.
n.4(C). Notably, this example does not require the defendant’s conduct to have
any impact on the investigation or prosecution. See United States v. Milton,
147 F.3d 414, 417-18 (5th Cir. 1998) (affirming enhancement where defendant
directed co-conspirator to sign false affidavit even though affidavit was never
used); Rodriguez, 942 F.2d at 902 (upholding enhancement because defendant
provided the Probation Office with fraudulent birth certificate).           The
enhancement also applies, as previously explained, if the defendant provides
“a materially false statement to a law enforcement officer that significantly
obstructed or impeded the official investigation or prosecution of the instant
offense.” § 3C1.1 cmt. n.4(G); see United States v. Phipps, 319 F.3d 177, 191
(5th Cir. 2003) (affirming enhancement where defendant’s misidentification
delayed the investigating agent for several months); cf. Ahmed, 324 F.3d at 373
(vacating sentence where enhancement was based on defendant’s false
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                                       No. 13-51061
statement to FBI, noting that “the FBI had to go forward with their
investigation as they normally would”).
       With those examples in mind, we turn to the facts in this case. Guevara
concedes that he provided materially false information to Border Patrol agents
at the time of his arrest. He told agents that he was born in, and was a citizen
of, Mexico, rather than Honduras. He signed a Sworn Statement Affidavit,
thereby creating a false document that confirmed this information under oath.
Cf. § 3C1.1 cmt. n.5(B). The court emphasized that as a result of his false
statements in this case and previous cases, 3 “false documents have had to be –
were actually created based on the defendant’s statement.” While not an
element of the offense of illegal reentry, Guevara’s citizenship is closely tied to
the offense and is necessary for deportation purposes. See United States v.
Miller, 607 F.3d 144, 151 (5th Cir. 2010) (explaining that obstruction of justice
enhancement can be based on false statements that might impact “relevant
sentencing determinations”). The court found that Guevara acted willfully and
concluded that Guevara claimed to be from Mexico “because he was hoping to
get VR’d.” 4     See Milton, 147 F.3d at 418 (affirming enhancement where
defendant willfully attempted to obstruct justice). The court also found that
Guevara repeated this false information throughout the investigation of the


       3  Application Note 1 provides that “[o]bstructive conduct that occurred prior to the
start of the investigation of the instant offense of conviction may be covered by this guideline
if the conduct was purposefully calculated, and likely, to thwart the investigation or
prosecution of the offense of conviction.” § 3C1.1 cmt. n.1. There is no evidence in the record
that Guevara’s false statements in a previous case, which led to his deportation to Mexico in
2011, were purposefully calculated to disrupt the investigation or prosecution in the present
case. Accordingly, the court could not, and should not, have based its application of the
enhancement on those prior false statements. The sentencing transcript reveals, however,
that while the court did refer to Guevara’s previous statements, it did not base the
enhancement on those statements, but rather used them as evidence of Guevara’s motive and
intent in the instant case.
        4 8 U.S.C. § 1229c provides that the Attorney General may permit an alien to

voluntarily depart the United States and return to his home country without being subject
to judicial proceedings. This is sometimes referred to as “VR” for “voluntary return.”
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instant offense, which is inconsistent with the possibility that he was simply
confused or that he misspoke. Cf. § 3C1.1 cmt. n.2 (“[T]he court should be
cognizant that inaccurate testimony or statements sometimes may result from
confusion, mistake, or faulty memory and, thus, not all inaccurate testimony
or statements necessarily reflect a willful attempt to obstruct justice.”).
Finally, the court found that Border Patrol had to do extra work to determine
his true citizenship. The court acknowledged that in order for the sentencing
enhancement under § 3C1.1 to apply, “it’s got to be a much higher burden than
they just simply lied to law enforcement officers.” The court found “that this
is not just lying to law enforcement officers; this rises to the level of
significance.”
      In light of these findings, it was not clearly erroneous for the district
court to conclude that Guevara willfully attempted to mislead law enforcement
officers and obstruct the administration of justice in this case. Guided by the
non-exhaustive list of examples provided in the Application Notes, we find that
Guevara’s conduct in the present case warranted the two-level enhancement,
pursuant to § 3C1.1. See § 3C1.1 cmt. n.4 & n.5. We do not reach Guevara’s
argument regarding the district court’s denial of a downward adjustment for
acceptance of responsibility, because that argument was contingent on this
court finding that the obstruction of justice enhancement was erroneous.
                               CONCLUSION
      For the above reasons, we AFFIRM the district court’s sentence.




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