     Case: 18-10560       Document: 00514865383         Page: 1     Date Filed: 03/08/2019




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


                                     No. 18-10560                          FILED
                                   Summary Calendar                    March 8, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DANIELLE HARPER,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-185-1


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Danielle Harper appeals the sentence imposed after she pleaded guilty
to possession of stolen mail, in violation of 18 U.S.C. § 1708. Her 36-month
sentence was a variance above the top of the advisory Sentencing Guidelines
sentencing range (27 months). She does not expressly challenge the variance
but contends her offense level was wrongly increased by two levels for
obstruction of justice. That increase was based on the district court’s finding


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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                                   No. 18-10560

Harper persistently lied to the Probation Office and the court about her
violations of conditions of pretrial and presentencing release. She asserts her
false statements did not significantly impede the Government’s investigation
of her offense and were not material to the presentence investigation.
         Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008).
         Accordingly, as provided in United States v. Juarez-Duarte, 513 F.3d 204,
208 (5th Cir. 2008), our review of an obstruction-of-justice finding is for clear
error.     In that regard, our court defers to the district court’s credibility
determinations. Id.
         A two-level increase to the offense level is warranted where defendant
has “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 where the conduct is
“related to . . . the defendant’s offense of conviction and any relevant conduct”.
U.S.S.G. § 3C1.1. Examples of obstruction under § 3C1.1 include “providing
materially false information to a judge”, and “providing materially false
information to a probation officer in respect to a presentence or other
investigation for the court”. U.S.S.G. § 3C1.1 cmt. nn.4(F) & 4(H). A false



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                                  No. 18-10560

statement is material if it “would tend to influence or affect the issue under
determination”. U.S.S.G. § 3C1.1 cmt. n.6.
        As the district court explained, Harper’s false statements regarding her
violations were made during the Probation Office’s investigation to assist the
court in deciding whether pretrial and presentencing release should be
revoked. Harper thus provided “materially false information to a probation
officer in respect to a presentence or other investigation for the court.”
U.S.S.G. § 3C1.1 cmt. n.4(H).       Further, Harper’s false statements were
material because they were made to influence the court’s decision whether to
allow her to remain free pending trial and sentencing. U.S.S.G. § 3C1.1 cmt.
n.6.
        More generally, false statements amounting to perjury have “obvious
relevance” to sentencing because they “reflect[] on a defendant’s criminal
history, on her willingness to accept the commands of the law and the authority
of the court, and on her character in general”. United States v. Dunnigan, 507
U.S. 87, 94 (1993). Here, the district court considered Harper’s untruthfulness
as establishing her “characteristics” as “one of the biggest liars” the court had
seen.
        In sum, Harper’s false statements impeded or obstructed “the
administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction”. U.S.S.G. § 3C1.1. The increase
was not clearly erroneous. Nor was the Guideline applied erroneously. See
United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).
        AFFIRMED.




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