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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit


                                No. 13-40351                             FILED
                                                                     May 20, 2014
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

                                          Plaintiff – Appellee
v.

RICARDO HINOJOSA,

                                          Defendant – Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Ricardo Hinojosa pled guilty to one count of possession with intent to
distribute 211 kilograms of marijuana. The district court found that he was
responsible for 2,648.8 additional kilograms of marijuana as relevant conduct
pursuant to the United States Sentencing Guidelines. The resulting increase
in his base offense level, combined with the effects of other challenged
sentencing factors, enhanced his prison sentence substantially. There is no
indication in the record, however, that it affected his mandatory minimum
sentence as prescribed by his offense of conviction. Finding no plain error by
the district court in Hinojosa’s sentencing, we AFFIRM.


              FACTUAL AND PROCEDURAL BACKGROUND
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                                 No. 13-40351
      On September 1, 2011, Immigration and Customs Enforcement (ICE)
agents learned from a confidential informant that a load of marijuana would
be smuggled across the United States-Mexico border at Roma, Texas in a blue
Dodge pickup truck.      ICE relayed this information to the Roma Police
Department. Roma police officers saw such a truck. After the truck failed to
stop at a stop sign, the driver sped away when the officers sought to pull him
over. Finally, the driver, Jose Ibarra, stopped and surrendered to police. A
search of the truck discovered 211 kilograms of marijuana.
      On September 9, the defendant Hinojosa informed an ICE agent that he
owned the blue Dodge pickup truck, that he lent it to Javier Gonzalez to
transport marijuana, and that he had not received any money for lending his
truck to the smuggling effort. He also stated that he lent the truck to assist
Roma police in apprehending drug smugglers and seizing drugs.               The
underlying scheme appears to have been this: Hinojosa would lend his truck,
coordinate the smuggling of the marijuana, and inform a Roma police officer
that marijuana would be smuggled across the border. Once the marijuana
crossed the border, Hinojosa and some co-defendants would steal most of the
load of marijuana and report the description of the vehicle containing the
remainder of the load to the Roma police officer. Once Roma police began
pursuing the reported vehicle, the driver, usually a member of the conspiracy,
would abandon it along with the marijuana, and officers would seize the car
and the marijuana – typically making no effort to apprehend the fleeing driver.
At least one Roma police officer was said to be involved in these schemes, so he
could take credit for the eventual seizure of the marijuana.
      On April 17, 2012, a two-count indictment filed in the United States
District Court for the Southern District of Texas, charged Ricardo Hinojosa
and certain co-defendants with conspiracy to possess with intent to distribute
more than 100 kilograms of marijuana and possession with intent to distribute
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                                  No. 13-40351
more than 100 kilograms of marijuana.            See 21 U.S.C. §§ 846; 841(a);
841(b)(1)(B). Accompanied by counsel, Hinojosa pled guilty on August 17,
2012, to count two in exchange for the government’s recommendation of
dismissal of count one and a two offense-level decrease for acceptance of
responsibility. See U.S.S.G. § 3E1.1(a). The district court accepted Hinojosa’s
guilty plea.
      The Presentence Report (PSR) for Hinojosa outlined several other
incidences of Hinojosa’s marijuana distribution activities. Specifically, the
PSR discussed Hinojosa’s involvement in the theft of 1,587.6 kilograms from a
warehouse in Pharr, Texas in February 2011, preparing a truck and trailer
from which 816.2 kilograms was later seized in November 2011, and with
scouting for law enforcement while another individual was transporting 245
kilograms that was later seized in February 2012. Combined with the 211
kilograms in his blue Dodge pickup truck, the PSR concluded he was
responsible for a total of 2,860.8 kilograms of marijuana as relevant conduct.
A defendant responsible for more than 1,000 but less than 3,000 kilograms of
marijuana is subject to a base offense level of 32. See U.S.S.G. § 2D1.1.
      The PSR also discussed two incidents that occurred after Hinojosa had
been charged but prior to entering his guilty plea. While he was detained on
April 26, 2012, Hinojosa phoned his sister. During the call, he instructed her
to tell a co-defendant “not to [waver] from” a storyline Hinojosa established for
the events: that the marijuana seized on September 1, 2011 was transported
so that it could be seized by Roma police. On June 29, 2012, Hinojosa sent a
five-page, handwritten letter to the district court denying that he had ever
stolen marijuana, that he had no knowledge of the September 1 transaction
beyond lending his truck, and, as he stated in the phone call to his sister, that
the marijuana transaction was arranged to help Roma police.              He later
admitted to the district court that these statements were false. In light of these
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                                  No. 13-40351
two occurrences, the PSR recommended applying a two-level increase for
obstruction of justice.     Consequently, he would also be disqualified from
receiving the two-level reduction for acceptance of responsibility. Ultimately,
the PSR recommended a total offense level of 34, resulting in a Guidelines
sentence range of 151-188 months imprisonment.
      The district court conducted Hinojosa’s sentencing hearing on January
30, 2013. Hinojosa made several objections to the PSR’s recommendations.
First, he objected to the reliance on a confidential source as evidence of the
theft of marijuana from the Pharr warehouse. Second, he objected to reliance
on the statement of an undercover agent identifying him as attaching the truck
and trailer for the soon-to-be seized 816 kilograms of marijuana. He made no
other objections to marijuana quantities. Relevant to our analysis, he made no
constitutional objection to the district court’s findings on these quantities as
relevant conduct. Finally, though he admitted he lied to the court in the letter
and made the phone call to his sister attempting to influence his co-defendant,
he objected to the obstruction of justice enhancement and the disallowance of
his acceptance of responsibility reduction. Despite that the government had
agreed in Hinojosa’s plea agreement to recommend the acceptance of
responsibility reduction, it advocated for the obstruction of justice
enhancement and did not recommend the reduction.
      The district court denied Hinojosa’s objections, adopted the findings and
recommendations of the PSR establishing an offense level of 34 with no
criminal history points, and sentenced Hinojosa to 151 months imprisonment
followed by four months supervised release. Hinojosa appeals the district
court’s findings of additional drug quantities as relevant conduct, the
obstruction of justice enhancement, and the denial of the acceptance of
responsibility reduction.


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      In addition, Hinojosa raises two new claims on appeal. First, he contends
that the sentence violates the Sixth Amendment, which requires facts that
increase a mandatory minimum sentence to be found beyond a reasonable
doubt by a jury. See Alleyne v. United States, 133 S. Ct. 2151 (2013). Second,
he contends that the government breached its plea agreement by advocating
for the obstruction of justice enhancement and failing to recommend the
acceptance of responsibility reduction.
                                 DISCUSSION
      We review the district court’s findings of fact at sentencing for clear error
and its application of the federal sentencing guidelines de novo. United States
v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). We thus review
Hinojosa’s properly-preserved claims regarding the additional quantities, the
obstruction of justice enhancement, and the denial of the acceptance of
responsibility reduction in this manner.
      Because Hinojosa failed to raise before the district court his
constitutional claim and his claim that the government breached the plea
agreement, they are not preserved and plain error review applies. See id. That
standard applies even as to a new rule of substantive constitutional law
identified by the Supreme Court if the challenge was not presented to the
district court. United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001)
(applying plain error review where Jones v. United States, 526 U.S. 227 (1999)
and Apprendi v. New Jersey, 530 U.S. 466 (2000), were decided during the
pendency of direct review and where the defendant had not raised challenges
as raised in those cases). To prevail under plain error review, a defendant
must show (1) error, (2) that is clear or obvious, and (3) that affected the
defendant’s substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009) (quotation marks and citation omitted). If those requirements are met,
the reviewing court may in its discretion remedy the error only if it (4)
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                                  No. 13-40351
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (alteration in original).
I. Additional Drug Quantities and Relevant Conduct as Alleyne Error
      Hinojosa contends that the Fifth and Sixth Amendments of the United
States Constitution require drug quantities that increase the mandatory
minimum sentence for an offense to be found beyond a reasonable doubt by a
jury. The Supreme Court held that “any fact that increases the mandatory
minimum is an ‘element’ that must be submitted to the jury.”             Alleyne,
133 S. Ct. at 2155. Thus, we need to determine whether a mandatory minimum
sentence was increased due to judicial fact-finding.
      To understand Hinojosa’s argument, it is useful to compare the statute
under which he was indicted and pled guilty, and from which a five-year
mandatory minimum is drawn, to a different subsection of one of those statutes
that contains a ten-year mandatory minimum sentence.               The statutes
identified in the count of the indictment to which Hinojosa pled guilty were
these: (1) 21 U.S.C. § 846, for conspiracy; (2) Section 841(a)(1), for possession
with intent to distribute a controlled substance; and (3) Section 841(b)(1)(B),
which sets a mandatory minimum sentence of five years for violations of
subsection (a) when the quantity of marijuana is 100 kilograms or more.
Though he was not charged under Section 841(b)(1)(A), Hinojosa argues that
the district court’s determination that he was responsible for 2,860.8 kilograms
of marijuana effectively caused that section’s mandatory minimum of ten years
– applicable to 1,000 or more kilograms of marijuana – to become the relevant
statute. His Guideline range of 151-188 months, and his actual sentence of
151 months, were both greater than ten years. Under Alleyne, he argues, the
1,000 kilograms or more quantity of drugs became an element of the offense
and becomes a fact that must be found by a jury. We note that Hinojosa’s guilty
plea admitted all elements of the offense charged in the indictment, but only
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                                 No. 13-40351
an amount more than 100 kilograms but less than 1,000 kilograms was
charged.
      Alleyne is the most recent in a line of Supreme Court authority defining
certain aspects of criminal conduct as elements that must be found beyond a
reasonable doubt by a jury. The foundational opinion was Apprendi, where the
Court held that a statutory sentencing enhancement which increased a
potential criminal penalty beyond the maximum sentence provided by the
statute of conviction is to be considered an element of the crime itself and
accordingly must be found beyond a reasonable doubt by a jury. 530 U.S. at
490. In Alleyne, the Supreme Court expanded this principle to include any
statutory provision which, by its operation, increases the mandatory minimum
sentence. 133 S. Ct. at 2155.
      Applicable here, the Alleyne opinion did not imply that the traditional
fact-finding on relevant conduct, to the extent it increases the discretionary
sentencing range for a district judge under the Guidelines, must now be made
by jurors. See United States v. Booker, 543 U.S. 220, 257 (2005) (rejecting a
requirement that a jury find facts as to all relevant drug quantities for
sentencing purposes under the Guidelines); see also Alleyne, 133 S. Ct. at 2169
(after the jury returns a verdict of guilty, “the judge [is] free to consider any
relevant facts about the offense and offender, including facts not found by the
jury beyond a reasonable doubt.”). Further, nothing in this record supports
that Hinojosa’s sentence was the result of the probation office or the district
court’s concluding that a ten-year mandatory minimum applied. See id. (“[n]o
additional finding of fact was ‘essential’ to any punishment within the
[statutory] range.”).   Instead, the PSR states that Hinojosa was subject to a
mandatory minimum sentence of five years and a maximum of forty years, as
provided under Section 841(b)(1)(B). The district court never referred to a


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                                   No. 13-40351
mandatory minimum during the sentencing hearing or in the judgment of
conviction and sentence.
      The Supreme Court in Alleyne equated the reasons for requiring jury
fact-finding when a mandatory statutory minimum sentence was increased to
situations when a statutory maximum sentence was increased. See 133 S. Ct.
at 2155. The Court did not suggest that the setting of Sentencing Guidelines
ranges in a PSR, which structure but do not control district judge discretion,
were subject to the same requirement. The statutory minimum of the offense
of conviction will apply once guilt is determined on the elements charged in the
count of conviction. On occasions when the PSR or district court mistakenly
applies a higher statutory minimum sentence, resentencing often occurs as a
matter of course because the government concedes the error. See e.g., United
States v. Ortiz, 613 F.3d 550, 559 (5th Cir. 2010). Quite differently, Guideline
ranges based on relevant conduct and other factors will often extend far above
a statutory minimum.       As a matter of simple logic, those ranges may even
exceed a higher statutory minimum applicable to a related offense. When that
is the case, nothing in Alleyne, Apprendi, Booker or other authority provides
that the discretionary range of the Guidelines triggers a statutory minimum
higher than the one applicable to the count of conviction or the requirement of
jury fact-finding.
      We earlier explained why this argument is subject to plain-error review.
The first two steps of that review are to determine if there was error, and if so,
if it was plain. We hold that there was no error, obscure or plain.
II. Breach of the Plea Agreement
      Hinojosa contends the government breached the plea agreement by
advocating for the inclusion of the additional quantities of marijuana. He
further argues that the government breached the agreement by advocating for
the obstruction of justice enhancement and failing to recommend the
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acceptance of responsibility reduction. Because Hinojosa did not complain in
the district court that the government breached the plea agreement, plain-
error review controls our analysis.   See Chavez-Hernandez, 671 F.3d at 497.
“We apply general principles of contract law in order to interpret the terms of
[a] plea agreement.” United States v. Lewis, 476 F.3d 369, 387 (5th Cir. 2007).
To determine whether a plea agreement was breached we consider “whether
the government’s conduct is consistent with the defendant’s reasonable
understanding of the agreement.” Id. at 387-88 (quoting United States v.
Valencia, 985 F.2d 758, 761 (5th Cir. 1993)).
      The language of the plea agreement contains neither a reference to drug
quantity nor a promise not to advocate for the inclusion of relevant conduct.
Nonetheless, Hinojosa argues that a breach occurred because he agreed to
plead guilty to possession of 211 kilograms of marijuana, and no more.         No
legal authority pointed out to us supports his position that the plea agreement,
which contained no promise to refrain from advocating for relevant conduct at
sentencing, nonetheless must be interpreted that way. We cannot conclude
that Hinojosa’s “reasonable understanding of the agreement” would include a
term prohibiting the government for advocating for the inclusion of relevant
conduct under the Guidelines. See id. Hinojosa has failed to carry his burden
of showing there was error in not holding the government to account for this
alleged breach of the plea agreement by urging consideration of the higher drug
quantities as relevant conduct.
      As to the acceptance of responsibility issue, the plea agreement states:
“The Government will recommend . . . that the offense level decrease by 2 levels
pursuant to U.S.S.G. § 3E1.1(a) if the defendant clearly demonstrates
acceptance of responsibility.” The government did not recommend the two-
level decrease; instead, it actively advocated for the obstruction of justice
enhancement.     The government argues that Hinojosa’s actions clearly
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                                  No. 13-40351
demonstrated he did not accept responsibility, including his falsity-laden letter
to the district court and his efforts to influence a co-defendant to mislead law
enforcement as to the marijuana smuggling operation. Hinojosa responds that
both instances of conduct occurred well before he pled guilty. Thus, he argues,
the government’s agreement to recommend acceptance of responsibility with
full knowledge of those two incidents precludes using them as a justification
for not making the agreed-upon recommendation.
      The government’s promise in the plea agreement was conditioned on his
“clearly demonstrat[ing] acceptance of responsibility.” Hinojosa argues that
because the promise was made with knowledge of the two incidents, the
government effectively was promising to make the recommendation absent
further obstruction. We need not consider the effect of these facts, because
even had the government breached the plea agreement, Hinojosa still must
show that the government’s breach affected his substantial rights. See Puckett,
556 U.S. at 135. “The defendant whose plea agreement has been broken by the
Government will not always be able to show prejudice . . . [perhaps] . . . because
he likely would not have obtained those benefits in any event.” Id. at 141. We
conclude that it is highly unlikely the district court would have granted
Hinojosa the two-level reduction regardless of the government’s breach.
      Hinojosa submitted a letter to the district court containing numerous
falsehoods that misstated the nature of his criminal activity. He instructed,
through his sister, a co-defendant to do the same. The district court found
Hinojosa’s credibility so lacking that it was “suspicious of any word out of his
mouth.” The district court specifically referenced the above incidents when
applying the obstruction of justice enhancement. The record is replete with
evidence of Hinojosa’s misleading the court and law enforcement and the
district court was certainly aware of his conduct. The PSR, adopted by the


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                                  No. 13-40351
district court, also includes these instances of conduct and based its
recommendations upon them.
         Regardless of whether the government recommended the two-level
reduction as the plea agreement contemplated, we cannot conclude the district
court would have applied the reduction. Even if we could conclude that the
government breached the plea agreement, it is practically certain that
Hinojosa would have received the obstruction of justice enhancement and
would not have received the acceptance of responsibility reduction.
III.     Druq Quantities as Relevant Conduct; Sufficiency of the Evidence
         Hinojosa makes numerous claims regarding the inclusion of additional
drug quantities as relevant conduct for sentencing purposes. Most of them are
evidentiary: Hinojosa claims that the only evidence of his involvement in the
1,587.6 kilogram Pharr warehouse marijuana theft and the 245 kilogram
seizure was derived from unreliable sources. He further claims that evidence
of the 816.2 kilogram truck-and-trailer came only from an undercover agent,
who may have mistakenly identified the participant in that scheme as
Hinojosa. He makes two additional, non-evidentiary claims: that his conduct
in the Pharr warehouse marijuana theft should not be considered because it
occurred before the offense of conviction and because he was a minor at the
time. We address these contentions in turn.
         “[Q]uantities of drugs not specified in the count of conviction may be
considered in determining the offense level.” U.S.S.G. § 2D1.1 cmt. n.5 (citing
U.S.S.G. § 1B1.3(a)(2)).     This calculation includes a defendant’s “relevant
conduct”; a defendant “is accountable for all quantities of contraband with
which he was directly involved and, in the case of a jointly undertaken criminal
activity, all reasonably foreseeable quantities of contraband that were within
the scope of the criminal activity that he jointly undertook.”              Id. §
1B1.3(a)(1)(A) & (B) cmt. n.2. “In drug distribution cases, we have broadly
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                                 No. 13-40351
defined what constitutes the same course of conduct or common scheme or
plan.” United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009) (quotation
marks and citations omitted).       “Ultimately, the district court need only
determine its factual findings at sentencing by a preponderance of the relevant
and sufficiently reliable evidence.” United States v. Alaniz, 726 F.3d 586, 618-
619 (5th Cir. 2013). The defendant must carry “the burden of showing that the
information in the PSR . . . is materially untrue” and “[m]ere objections do not
suffice as competent rebuttal evidence.” Id. at 619.
      As described above, evidence of Hinojosa’s involvement with the Pharr
warehouse marijuana theft was supplied by a confidential informant; his
involvement with the truck-and-trailer load was supplied by a federal agent;
and his involvement with the 245 kilogram load was supplied by the individual
arrested at the time of the seizure. Hinojosa’s rebuttal was simply that the
confidential informant, federal agent, and arrested individual were unreliable.
Contrary to Hinojosa’s arguments, it is not the government’s burden to prove
facts in the PSR are true; a defendant has the burden to show they are
“materially untrue.” Id. We conclude Hinojosa’s contention that the district
court relied on insufficient evidence to increase the quantity of marijuana for
which he was held responsible is “mere objection” that cannot “suffice as
competent rebuttal evidence.” Id.
      Hinojosa also argues that only conduct occurring after the offense may
be considered as relevant conduct, citing United States v. Vital, 68 F.3d 114,
117 (5th Cir. 1995). He reads too much into the opinion. Vital held that
conduct occurring after the offense of conviction could be considered relevant
conduct.   Id. at 118.   We did not state anything about the propriety of
considering conduct that occurred before the offense of conviction. As we
already noted, “we have broadly defined what constitutes the same course of
conduct or common scheme or plan” in the drug distribution context. Rhine,
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583 F.3d at 885 (quotation marks and citation omitted). The district court’s
finding that all of these events were part of such a common scheme is supported
by the record.
      The record shows that Hinojosa and his co-defendants’ modus operandi
was to arrange for a shipment of marijuana, lend vehicles and logistical
support to the effort, steal the majority of the shipment, and then turn over the
remainder to law enforcement. The record reflects that during the time period
between February 2011 and February 2012, Hinojosa was involved in
numerous drug smuggling activities taking place in the Roma, Texas area,
often with several of his co-defendants in this case. Ultimately, there was
sufficient evidence in the record to conclude that the February 2011 marijuana
theft at the Pharr warehouse was a part of the broader drug distribution
scheme. See id.
      Hinojosa’s claim that he cannot be held responsible for the Pharr
warehouse marijuana theft because it occurred when he was under the age of
eighteen must also fail.       His only authority on this point is that
18 U.S.C. § 5031 requires conduct occurring before a defendant reaches the age
of majority be subject to juvenile delinquency proceedings. Nonetheless, the
Guidelines do not contain any prohibition, for relevant conduct purposes, on
activities occurring during a scheme that spans from before a defendant
reaches the age of majority to after he reaches the age of majority. We are
persuaded by the government’s argument that the realm of charged conduct
and the realm of relevant conduct for Guidelines purposes are not coterminous.
But even if we were to conclude that the district court erred by including
conduct committed as a minor, we agree with the government that it is
harmless under these circumstances. The Pharr warehouse incident resulted
in 1,587.6 kilograms of marijuana being ascribed to Hinojosa. Under the
relevant Guideline, the district court applies a base offense level of 32 when
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                                     No. 13-40351
the defendant is responsible for more than 1,000, but less than 3,000 kilograms
of marijuana. U.S.S.G. § 2D1.1(c). Thus, even if the 1,587.6 kilograms of
marijuana were erroneously ascribed to Hinojosa because of his minority, he
would still have exceeded 1,000 kilograms for the purposes of the Guidelines.
Even if the district court erred, we conclude such error to be harmless.
IV.     The Obstruction of Justice Enhancement
        Hinojosa argues that, in spite of his letter and the phone call to his sister,
the government must carry the burden of showing that the conduct supported
the enhancement. He argues that the enhancement only applies when the
conduct materially affects the investigation and cites United States v. Morales-
Sanchez for this proposition. 609 F.3d 637, 641 (5th Cir. 2010). His reliance on
Morales-Sanchez is misplaced.
        The Guidelines authorize a two-level increase in offense level for
obstruction of justice “when a defendant engages in conduct which ‘obstructed
or impeded, or attempted to obstruct or impede, the administration of justice
during the investigation, prosecution, or sentencing of the instant offense.’”
United States v. Lowder, 148 F.3d 548, 552 (5th Cir. 1998) (quotation omitted);
see also U.S.S.G. § 3C1.1. Obstruction includes “threatening, intimidating, or
otherwise unlawfully influencing a codefendant . . . or attempting to do so,” and
“providing materially false information to a judge or magistrate judge.”
U.S.S.G. § 3C1.1 cmt. n.4(A) & (F).
        In Morales-Sanchez we held, consistent with the commentary to U.S.S.G.
§     3C1.1,   that    where   the    allegedly   obstructing    conduct     occurred
“contemporaneously with arrest,” that fact does not alone support the
enhancement. Morales-Sanchez, 609 F.3d at 641; U.S.S.G. § 3C1.1 cmt. n.4(d).
Here, though Hinojosa was in custody, he did not make his phone call to his
sister “contemporaneously with [his] arrest.” Consequently, the limitation
provided in Morales-Sanchez and commentary to Section 3C1.1 does not apply
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here. Thus, the government need not prove his conduct materially affected law
enforcement’s investigation in this case.
      Though the phone call standing alone likely supports the enhancement,
certainly Hinojosa’s letter to the district court supports the enhancement as
well. Without a doubt, that letter represented “providing materially false
information to a judge.” U.S.S.G. § 3C1.1 cmt. n.4(F). It is not relevant, again,
whether or not this information actually obstructed or impeded the
investigation of his crimes, or even whether the Judge believed his falsehoods.
See U.S.S.G. § 3C1.1 application n.6 (defining material statements as those
which, if believed, would tend to influence another).         We conclude the
obstruction of justice enhancement is firmly supported by the record.
      AFFIRMED.




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