                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUL 19 2001
                                       TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,                     No. 00-5099
          v.                                           (N.D. Oklahoma)
 JESUS FERNANDO MIRANDA,                           (D.C. No. 99-CR-89-C)

                 Defendant-Appellant.


                              ORDER AND JUDGMENT        *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      On September 29, 1999, Mr. Miranda pleaded guilty to one count of

conspiracy to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and


      *
        This order and judgment is not binding precedent, except under the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. R. 36.3.
(b)(1)(B). During the hearing, Mr. Miranda explained to the district court his

involvement in the cocaine conspiracy. On May 8, 2000, Mr. Miranda testified at

the sentencing hearing of his codefendant, Luis Baeza. At that time, Mr. Miranda

recanted his prior testimony from September 29, 1999, as it pertained to Mr.

Baeza and denied any involvement with him. Mr. Miranda testified that his

source of supply for cocaine was an individual named “Frank.” Mr. Miranda was

also unable to recall several of his earlier statements as recorded in law

enforcement reports.

      In addition, Mr. Miranda’s presentence report indicated that Mr. Miranda

was involved in an attempt to solicit the murder of two people associated with his

drug dealing activities. The report recommended that this conduct supported an

upward adjustment for obstruction of justice. Mr. Miranda objected to this

provision.

      In sentencing Mr. Miranda to 110 months’ imprisonment, the district court

applied the two-level enhancement pursuant to USSG § 3C1.1 for obstruction of

justice and refused to apply a downward adjustment for acceptance of

responsibility under USSG § 3E1.1. On appeal, Mr. Miranda challenges both the

enhancement and the refusal to apply a downward adjustment for acceptance of

responsibility. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.




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                                  I. DISCUSSION

      A. Two-Point Increase for Obstruction of Justice

      Mr. Miranda contends the district court erred by imposing a two-level

enhancement of his sentence for obstruction of justice pursuant to USSG § 3C1.1

after determining he committed perjury at his and at his codefendant’s sentencing

hearing. At his sentencing hearing, Mr. Miranda denied any involvement

regarding the solicitation of the murders of two people associated with the

conspiracy. An agent and a confidential informant provided testimony to this

effect. In response to Mr. Miranda’s objection to the presentence report which

cited this testimony in support of an enhancement for obstruction of justice, the

district court stated that it was “satisfied from the testimony that has been

presented through the agents and through the confidential informant . . . that the

obstruction of justice as explained in the presentence report is appropriate and

proper.” Aplt’s App. at 183. Based on this evidence and after considering Mr.

Miranda’s recantation at Mr. Baeza’s sentencing hearing, the district court

determined that Mr. Miranda’s testimony was false.

      We review for clear error the district court’s factual findings supporting the

application of a particular sentencing guidelines provision and its legal

conclusions de novo.   See United States v. Shumway , 112 F.3d 1413, 1426 (10th

Cir. 1997).


                                         -3-
       The sentencing guidelines mandate a two-point upward adjustment if a

defendant “willfully obstructed or impeded, or attempted to obstruct or impede,

the administration of justice during the course of the investigation, prosecution,

or sentencing of the instant offense.”   United States v. Chavez , 229 F.3d 929, 955

(10th Cir. 2000) (quoting USSG § 3C1.1). Obstruction of justice includes

committing perjury.    See USSG § 3C1.1, cmt. n.4(b);      United States v. Hargus ,

128 F.3d 1358, 1365 (10th Cir. 1997). “To establish a defendant’s perjury, the

court must find that he (1) when testifying under oath, gives false testimony; (2)

concerning a material matter; (3) with willful intent to provide false testimony,

rather than as a result of confusion, mistake, or faulty memory.”     United States v.

Copus , 110 F.3d 1529, 1536 (10th Cir. 1997) (internal quotation marks and

citation omitted).

       First, Mr. Miranda challenges the nature of the trial testimony regarding the

murder solicitation as double hearsay. We need not address this matter because

we agree with the district court’s conclusion that Mr. Miranda’s perjury at Mr.

Baeza’s sentencing hearing was sufficient to support the enhancement for

obstruction of justice.

       Second, Mr. Miranda contends that, even if his testimony at Mr. Baeza’s

sentencing hearing was untruthful, it was not material. We disagree. According

to the guidelines, “‘[m]aterial’ evidence, fact, statement or information, as used


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in this section, means evidence, fact, statement, or information that, if believed,

would tend to influence or affect the issue under determination.” USSG § 3C1.1,

cmt. n.6; see also United States v. Bernaugh , 969 F.2d 858, 860 (10th Cir. 1992)

(applying obstruction enhancement where defendant “had provided materially

false information at his guilty plea hearing with respect to the roles of his

codefendants”).

       In deciding to impose the two-point increase for obstruction of justice, the

district court stated:

       As far as the Court is concerned, as far as the obstruction of justice is
       concerned, you don’t even have to rely upon the reliable testimony of
       the threats of murder. The false testimony given is an obstruction of
       justice in and of itself, and the Court finds in both instances that it is
       sufficient to support the presentence report. I therefore overrule the
       objection, and I accept the presentence report as it is presented to the
       Court.

Aplt’s App. at 190. Here, as in    Bernaugh , Mr. Miranda’s “perjury with respect to

the actors associated with him in the transaction easily could be an attempt to

affect his own sentencing, by impairing the court’s inquiry under Fed. R. Crim. P.

11(f), obfuscating his role in the transaction, and otherwise.”   Bernaugh , 969 F.2d

at 862. Thus, we conclude the district court did not err by imposing the two-level

USSG § 3C1.1 enhancement for perjury.



B. Acceptance of Responsibility


                                             -5-
      “We review the ‘acceptance of responsibility’ determination as a question

of fact under the clearly erroneous standard. As such, the trial court’s

determination of whether a defendant has accepted responsibility is subject to

great deference on review and should not be disturbed unless it is without

foundation. However, while we must give due deference to the district court’s

application of the guidelines to the facts, we review the application of the

guidelines fully for errors of law. Pure questions of interpretation of the

sentencing guidelines, which are closely analogous to questions of statutory

interpretation, are questions of law. We review questions of law de novo.”     United

States v. Amos , 984 F.2d 1067, 1071-72 (10th Cir. 1993) (internal quotation

marks and citations omitted).

      Section 3E1.1 of the Sentencing Guidelines states: “If the defendant

clearly demonstrates acceptance of responsibility for his offense, decrease the

offense level by 2 levels.” USSG § 3E1.1(a). The commentary to that section

provides that an obstruction of justice enhancement pursuant to § 3C1.1

“ordinarily indicates that the defendant has not accepted responsibility for his

criminal conduct,” but adds that “there may . . . be extraordinary cases in which

adjustments under both §§ 3C1.1 and 3E1.1 may apply.” USSG § 3E1.1,

application note 4. The question before us is whether the district court erred in




                                           -6-
determining that this is not one of those extraordinary cases. We believe that it

did not.

       When a court determines whether a defendant is eligible for a downward

adjustment for acceptance of responsibility, the application notes to the

Guidelines consider:

       truthfully admitting the conduct comprising the offense(s) of
       conviction, and truthfully admitting or not falsely denying any
       additional relevant conduct for which the defendant is accountable
       under § 1B1.3 (Relevant Conduct). Note that a defendant is not required
       to volunteer, or affirmatively admit, relevant conduct beyond the
       offense of conviction in order to obtain a reduction under [§ 3E1.1(a)
       ]. A defendant may remain silent in respect to relevant conduct beyond
       the offense of conviction without affecting his ability to obtain a
       reduction under this subsection. However, a defendant who falsely
       denies, or frivolously contests, relevant conduct that the court
       determines to be true has acted in a manner inconsistent with
       acceptance of responsibility.

USSG § 3E1.1, application note 1(a). Relevant conduct includes “in the

case of a jointly undertaken criminal activity ( . . . whether or not charged as a

conspiracy), all reasonably foreseeable acts and omissions of others in furtherance

of the jointly undertaken criminal activity.” USSG § 1B1.3(a)(1)(B).

       Here, Mr. Miranda lied about his co-defendant’s involvement in the

conspiracy. Moreover, Mr. Miranda’s lie about the involvement of Mr. Baeza

hindered investigators from “determining all acts committed in furtherance of the

jointly undertaken criminal activity.”   United States v. Patron-Montano   , 223 F.3d

1184, 1190 (10th Cir. 2000);    see also United States v. Murray , 65 F.3d 1161,

                                           -7-
1165-66 (4th Cir. 1995) (holding that a defendant who denied involvement of

co-defendant during co-defendant’s trial had intentionally misled law enforcement

officers and should not receive a downward adjustment for acceptance of

responsibility). Thus, Mr. Miranda’s perjury constituted the false denial of

relevant conduct.

       This court recently stated in   Patron-Montano :

      Although it would be error for a district court to categorically deny the
      § 3E1.1 decrease simply because a defendant lied about relevant
      conduct, the court can properly consider a defendant’s lie about relevant
      conduct in evaluating the defendant’s eligibility for a § 3E1.1 decrease.
      When a sentencing court concludes that a defendant lied about relevant
      conduct, the court could, in an exceptional case, still give a reduction
      for acceptance of responsibility.

Patron-Montano , 223 F.3d at 1191. Here, there is no evidence demonstrating that

this is an extraordinary case in which a reduction of responsibility is merited

despite the defendant’s lie about relevant conduct. It is Mr. Miranda’s burden to

prove that he is entitled to a decrease for acceptance of responsibility under §

3E1.1, see United States v. Nelson , 54 F.3d 1540, 1544 (10th Cir. 1995), and he

has failed to meet that burden. Thus, the district court properly denied the §

3E1.1 decrease.



                                   II. CONCLUSION




                                           -8-
      For the reasons stated above we conclude the district court did not err by

imposing the two-level USSG § 3C1.1 enhancement for perjury, and we affirm the

district court’s denial of the downward adjustment for acceptance of responsibility.



                                      Entered for the Court,



                                      Robert H. Henry
                                      Circuit Judge




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