                        REVISED January 21, 2008

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

                                                                      FILED
                                                                   January 4, 2008
                                     No. 05-11394
                                                                Charles R. Fulbruge III
                                                                        Clerk
UNITED STATES OF AMERICA

                                               Plaintiff-Appellee
v.

JORGE ARMANDO JUAREZ DUARTE, also known as Armando Duarte
Juarez
                              Defendant-Appellant


                   Appeal from the United States District Court
                  for the Northern District of Texas, Fort Worth


Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:
      Defendant-appellant Jorge Armando Juarez Duarte appeals his sentence,
arguing that the district court erred in increasing his sentence for obstruction
of justice under the United States Sentencing Guidelines.1 He also argues that
the district court erred in refusing to reduce his offense level for acceptance of
responsibility. For the following reasons, we AFFIRM.




      1
         All references are to the 2004 edition of the U.S. SENTENCING GUIDELINES MANUAL
(2004) (the “Guidelines” or the “Sentencing Guidelines”), which was used in preparing the
presentencing report (the “PSR”).
                                 No. 05-11394

           I. FACTUAL AND PROCEDURAL BACKGROUND
      Juarez-Duarte, a native and citizen of Mexico, was removed and deported
from the United States to Mexico in August 1992, after a conviction for an
aggravated felony, distribution of cocaine, on March 6, 1991. In October 1996,
the defendant was found in the United States and deported to Mexico through
the Port of Entry at Laredo, Texas. On or about March 31, 2005, Juarez-Duarte
was again found in the United States. He had not applied for or received
permission from the Attorney General or the Secretary of the Department of
Homeland Security of the United States for reentry into the country after his
1996 deportation.
      On April 8, 2005, the government filed a complaint alleging that Juarez-
Duarte was found in the United States after being ordered removed and
deported subsequent to a conviction for an aggravated felony. That day, Juarez-
Duarte made his initial appearance before the magistrate judge. When asked
if he could understand and speak English clearly, Juarez-Duarte said he could.
Nonetheless, the magistrate judge asked if he would like an interpreter for the
hearing. In English, Juarez-Duarte replied, “If she’s here, yes.”
      On April 13, 2005, Juarez-Duarte was indicted for illegal reentry after
deportation in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2); and 6 U.S.C.
§§ 202(3), 202(4), and 557. The magistrate judge held a detention hearing, which
Juarez-Duarte attended and participated in without the assistance of an
interpreter. From this, the district court inferred that the magistrate judge and
Juarez-Duarte’s Spanish-speaking attorney had determined that Juarez-Duarte
did not need an interpreter. On April 21, 2005, Juarez-Duarte was arraigned for
the first time. He pleaded not guilty. No interpreter was present, and when
asked by the district judge if he had read the indictment, he replied in English
that he had.



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                                  No. 05-11394

      Juarez-Duarte was rearraigned to change his plea on June 17, 2005. An
interpreter was present for the first two defendants called, who were
represented by the same attorney as Juarez-Duarte. He, however, did not
request an interpreter or seek the assistance of the interpreter present. Juarez-
Duarte was sworn in and warned that answering any questions falsely could
result in prosecution for perjury or making a false statement. Again, the district
judge asked Juarez-Duarte if he could “read, write and understand and speak
the English language proficiently.” Under oath, he replied, “Yes,” and proceeded
to actively engage the district court using conversational English. First, Juarez-
Duarte identified himself. Then, the following conversation took place in
English when Juarez-Duarte was called to enter his plea:
            The Court:         . . . how far did you go in school?

            The Defendant:     Sixth grade.

            The Court:         And where did you go to school?

            The Defendant:     Down in El Paso.

            The Court:         In El Paso?

            The Defendant:     Yes. I go a couple of years here in
                               Fort Worth.
            ....
            The Court:         What school did you go to here?
            The Defendant:     I can’t remember. It was on
                               Jennings Street and Rosedale.

Their exchange continued with Juarez-Duarte telling the court that he worked
in the oil fields and answering yes and no questions about his mental and
emotional health, as well as whether he was under the influence of drugs or
alcohol.



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       After reading the indictment, including the reference to his prior
aggravated felony conviction for distribution of cocaine, the district judge asked
Juarez-Duarte if he understood the charges. He replied, “Yes, but I’m confused
on the distribution,” and then clarified, “Yes, I understand, but I’m confused on
the charge of distribution.” The district court determined that the distribution
charge was surplusage in the indictment, and that the prior conviction would
increase the applicable statutory penalty range. Then, the court presented the
factual resume and asked if Juarez-Duarte had read it before he signed it.
Juarez-Duarte replied, “I read it before I signed it.” When asked if he had any
complaint with his counsel, Juarez-Duarte said, “No, no complaints at all.” The
district court conveyed the maximum sentence for the offense charged, and,
satisfied that Juarez-Duarte understood, accepted his guilty plea. On June 28,
2005, a probation officer interviewed Juarez-Duarte in the presence of his
attorney in English without any difficulty.
       At his sentencing hearing on September 30, 2005, for the first time,
Juarez-Duarte requested an interpreter, claiming that he did not clearly
understand everything that had happened during the rearraignment. The
district court expressed concern about the expense and delay of using an
interpreter when there is no need and inquired why he had not requested one at
any previous hearing.            Defense counsel said that Juarez-Duarte’s past
experience before the district court led him to request an interpreter because
although he understood the prior proceedings “fine,” he wanted an interpreter
at his sentencing hearing to understand “well.”2 The district court opined that
the interpreter was not necessary because Juarez-Duarte had not required one


       2
          While Juarez-Duarte initially requested the interpreter at the September 30, 2005,
sentencing hearing to better understand the proceeding, his motion for an interpreter at his
third arraignment and subsequent sentencing hearing stated that he needed an interpreter
for his allocution. The district court did not expressly note this potential inconsistency, but it
arguably lends credence to the district court’s finding.

                                                4
                                 No. 05-11394

at his detention hearing or at either of his prior arraignments, and he seemed
to communicate and understand English well when he pleaded guilty. However,
due to concern that his request would raise an issue as to the validity of his
guilty plea, the district court set aside the plea, warning Juarez-Duarte that an
improper request for an interpreter could have an effect on his sentencing.
      At a third arraignment on October 20, 2005, with the aid of an interpreter,
Juarez-Duarte again pleaded guilty to illegal reentry. At that time, the district
court ordered the probation officer to conduct an inquiry into whether Juarez-
Duarte should still receive a reduction in his offense level based on acceptance
of responsibility, and whether he should receive an enhancement for obstruction
of justice, and to include the relevant findings and conclusions on those issues
in an addendum to the PSR.
      On November 14, 2005, the probation officer re-interviewed Juarez-Duarte
in the presence of his attorney and an interpreter. However, Juarez-Duarte
communicated clearly with the officer in English. Based on this interview, plus
the findings of the district court, the addendum recommended a two-level
enhancement for obstruction of justice for “providing materially false
information to a judge regarding his need for an interpreter.” U.S. SENTENCING
GUIDELINES MANUAL § 3C1.1 cmt. n.4(f) (2004). Also, the PSR recommended
that the reduction for acceptance of responsibility under § 3E1.1 was no longer
warranted. These determinations increased Juarez-Duarte’s total offense level
from 21 to 26, and increased his sentence range from 46–57 months to 78–97
months. Juarez-Duarte objected to the amended PSR, but at his sentencing
hearing on December 2, 2005, the district court overruled his objections and
expressly adopted the PSR as to both findings of fact and conclusions of law, as
modified or supplemented by the addendum, and any findings and conclusions
made from the bench. Accordingly, he was sentenced to eighty-seven months in
federal prison and three years supervised release, and assessed a $100 fine.

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Juarez-Duarte filed a timely notice of appeal and now challenges the district
court’s calculation of his sentencing range, the reasonableness of his sentence,
and the constitutionality of 8 U.S.C. § 1326(b).
                                II. DISCUSSION
      A. Obstruction of Justice
      Juarez-Duarte challenges the two-level enhancement of his sentence for
obstruction of justice under § 3C1.1 of the Guidelines. Specifically, he argues
that the district court’s factual finding that he willfully obstructed justice by
falsely insisting under oath to the judge during sentencing that he needed an
interpreter when in fact he did not was clearly erroneous, and that, even if the
statements were made falsely, with the intent to obstruct justice, they were
immaterial.
      A district court’s interpretation or application of the Sentencing Guidelines
is reviewed de novo, and its factual findings, such as a finding of obstruction of
justice, are reviewed for clear error. United States v. Adam, 296 F.3d 327, 334
(5th Cir. 2002). There is no clear error if the district court’s finding is plausible
in light of the record as a whole. United States v. Harms, 442 F.3d 367, 378 (5th
Cir. 2006). Further, we give deference to the credibility determinations of the
district court. Id.
      Section 3C1.1 provides that a defendant’s calculated offense level can be
increased by two levels if “(A) the 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 of
conviction, and (B) the obstructive conduct related to (i) the defendant’s offense
of conviction and any relevant conduct . . . .” U.S. SENTENCING GUIDELINES
MANUAL § 3C1.1. According to the commentary to § 3C1.1, such conduct
includes “providing materially false information to a judge or magistrate.” Id.
at cmt. n.4(f). The commentary further defines material information to mean

                                         6
                                   No. 05-11394

that which “if believed, would tend to influence or affect the issue under
determination.” Id. at cmt. n.6.
      In this case, the district court made an express factual finding that “the
defendant has willfully obstructed and attempted to obstruct the administration
of justice during the course of the prosecution of this action by his conduct in
insisting that he needs an interpreter when in fact he does not.” The district
court further found that Juarez-Duarte’s “obstructive conduct related to his
offense of conviction and the sentencing for that offense, and consequently . . .
that he should have a two-level increase in his guideline . . . offense level.” We
cannot say that these factual findings are clearly erroneous or implausible in
light of the record as a whole.
      In support of these findings, the district court expressly adopted the facts
and conclusions from the PSR, as modified by the addendum, and made
additional findings and conclusions from the bench. The adopted facts include
findings that: (1) Juarez-Duarte did not request an interpreter until sentencing,
after not needing one for his detention hearing or his first two arraignments,
even though he had an interpreter present at his initial appearance; (2) the
magistrate judge and Juarez-Duarte’s Spanish-speaking attorney apparently
concluded that he did not need an interpreter; (3) at his June 17, 2005,
rearraignment, he swore under oath that he could speak, read, write, and
understand English proficiently; (4) he was able to communicate effectively and
fluently in English with the court and his probation officer and “clearly
understood the English language that was used in the conduct” of his prior
arraignments; (5) his probation officer could clearly understand him as he spoke
in English during both of his PSR interviews; and (6) during his first sentencing
hearing, his responses to questions about pleading guilty at his rearraignment
caused the district court to believe that he “might be creating a record to support
a contention that he did not understand what he was doing when he pleaded

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                                   No. 05-11394

guilty.” From these findings, the district court reasoned that Juarez-Duarte
“had no need for an interpreter at the arraignment and rearraignment
proceedings, . . . [that he] clearly understood the English language that was used
in the conduct of those proceedings,” that he falsely insisted that he needed an
interpreter when he did not, and consequently, that he obstructed justice within
the meaning of § 3C1.1.
      This court has said that the “district court may find from circumstantial
evidence that the defendant engaged in a conscious and deliberate attempt to
obstruct or impede the administration of justice.” United States v. Greer, 158
F.3d 228, 241 (5th Cir. 1998). Thus, in light of the district court’s express factual
findings, and affording deference to the credibility determinations of the district
court, see Harms, 442 F.3d at 378, we conclude that the district court did not
clearly err in finding that Juarez-Duarte acted with the intent to willfully
obstruct justice by falsely contending that he needed an interpreter.
      However, in order to determine that the district court properly applied the
two-level sentence enhancement provided under § 3C1.1 for obstruction of
justice, the false information that Juarez-Duarte provided to the district court
regarding his need for an interpreter must also have been material. U.S.
SENTENCING GUIDELINES MANUAL § 3C1.1. The Guidelines define “material”
information as that which, “if believed, would tend to influence or affect the issue
under determination.” Id. at cmt. n.6. To this end, the district court stated that
“one of the consequences of [Juarez-Duarte’s insistence on the use of an
interpreter when he did not need one] was to raise an uncertainty in the [c]ourt’s
mind . . . as to whether there would be an issue raised as to the validity of his
arraignment, his guilty plea, with the consequence that we had to redo that in
an abundance of caution.”
      In an attempt to show a lack of materiality, Juarez-Duarte tries to
distinguish this case from Greer—a case in which this court analogized to the

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§ 3C1.1 commentary regarding the production of a false document and held that
feigning mental incompetence in order to avoid trial is subject to the obstruction
of justice enhancement, 158 F.3d at 234-38. He argues that in Greer, there was
an abundance of scientific evidence to support the conclusion that the defendant
acted to delay or avoid trial altogether, whereas here, the district court lacked
such support for its conclusion that his statements, even if false, were intended
to affect the proceeding by raising doubts about whether his guilty plea was
knowing and voluntary for a future appeal.           Juarez-Duarte’s materiality
argument is flawed. In Greer, this court was reviewing the district court’s
factual finding that the defendant had acted with the requisite intent to obstruct
justice under § 3C1.1 rather than determining whether the content of the
defendant’s     conduct    was   material.        Consequently,   Juarez-Duarte
mischaracterizes this court’s materiality analysis.
      The relevant materiality inquiry under the Guidelines is whether the
information supplied to the court, in this case Juarez-Duarte’s false contention
under oath at his sentencing hearing that he needed an interpreter, “if believed,
would tend to influence or affect the issue under determination.” U.S.
SENTENCING GUIDELINES MANUAL § 3C1.1 cmt. n.6. In United States v. Cabral-
Castillo, the court sustained an obstruction enhancement for perjury absent
explicit findings from below that the defendant’s false testimony, which accused
a federal agent of beating him, was material because “the trial judge also found,
at least implicitly, that [the defendant] falsely accused [the agent] of having
obtained his confession by coercive tactics.” 35 F.3d 182, 187 (5th Cir. 1994). We
explained further:
              Even though there was no explicit finding by either the
              trial or sentencing judge that this testimony was
              material, [the defendant’s] testimony on this topic was
              obviously “material” in that it was clearly “designed to
              substantially affect the outcome of the case.” The


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            government’s case against [the defendant] was
            significantly bolstered by [his] confession; had the jury
            believed [his] claim that his confession was other than
            voluntary and reliable, that certainly could have
            affected the outcome of the case against him.

Id.
      In this case, the district court expressly found that “one of the
consequences of” Juarez-Duarte’s false contention under oath at his sentencing
hearing that he needed an interpreter “was to raise an uncertainty in the
[c]ourt’s mind . . . as to whether there would be an issue raised as to the validity
of his rearraignment, his guilty plea, with the consequence that we had to redo
that in an abundance of caution.” With this determination, the district court not
only conveyed that information provided in this case, “if believed, would tend to
influence or affect the issue under determination,” but also indicated that
Juarez-Duarte’s false contention was in fact believed, at least to some extent,
since it called into question whether the guilty plea was knowing and voluntary.
Moreover, it did affect the issue under determination—what sentence the
district court should impose based on that guilty plea—so much so that the
district court felt compelled to set aside his guilty plea and rearraign him with
the assistance of an interpreter. Even more obviously than in Cabral-Castillo,
Juarez-Duarte’s false contention that he needed an interpreter was obviously
“material” in that it clearly “would tend to influence or affect the issue under
determination,” because it in fact did.
      This court is not unsympathetic to the legitimate concern raised by Juarez-
Duarte that imposing the obstruction enhancement on defendants who falsely
assert the need for an interpreter might make other defendants hesitant to
request an interpreter, a right protected by the Court Interpreters Act, 28 U.S.C.
§ 1827. However like in Greer, where we said that “applying the obstruction
enhancement to defendants who willfully feign incompetency in order to avoid

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                                   No. 05-11394

trial and punishment does not unconstitutionally chill a defendant’s right to seek
a competency hearing,” 158 F.3d at 237, we trust the district courts, in their
discretion, to make sufficient factual findings of willful intent to obstruct justice,
as well as sound credibility determinations regarding the legitimacy of the
defendant’s request for an interpreter, to prevent impermissible chilling.
      Accordingly, the district court properly applied the two-level enhancement
for obstruction of justice in this case.
      B. Acceptance of Responsibility
      Generally, a defendant can receive a two or three-level reduction in his
offense level under § 3E1.1 of the Guidelines for clearly demonstrating
acceptance of responsibility for the offense. U.S. SENTENCING GUIDELINES
MANUAL § 3E1.1. “We will affirm a sentencing court’s decision not to award a
reduction under [ ] § 3E1.1 unless it is ‘without foundation,’ a standard of review
more deferential than the clearly erroneous standard.” United States v.
Anderson, 174 F.3d 515, 525 (5th Cir. 1999). Ordinarily, conduct that results in
an enhancement for obstruction of justice under § 3C1.1 “indicates that the
defendant has not accepted responsibility for his criminal conduct,” except in
“extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may
apply.” U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 cmt. n.4. In this case the
PSR, expressly adopted by the district court, stated that notwithstanding
Juarez-Duarte’s “reasoning as to why an interpreter was used at his last two
hearings, this case does not rise to the level of being an ‘extraordinary case’ in
which both adjustments should apply.” We cannot say that this finding is
without foundation.
      C. Constitutional Challenge to 8 U.S.C. § 1326(b)(2)
      Juarez-Duarte also argues that 8 U.S.C. § 1326(b)(2) is unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Juarez-Duarte concedes
that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S.

                                           11
                                    No. 05-11394

224, 228 (1998). Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th
Cir. 2005). Therefore, “we are required to follow it ‘unless and until the Supreme
Court itself determines to overrule it.’” Izaguirre-Flores, 405 F.3d at 277-78
(citation omitted). Consequently, this argument has no merit.
      D. Reasonableness of the Sentence
      We review the district court’s application of the sentencing guidelines de
novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). Findings of
fact are accepted unless clearly erroneous. United States v. Smith, 440 F.3d 704,
706 (5th Cir. 2006) (citations omitted). Ultimately, under United States v.
Booker, 543 U.S. 220, 261 (2005), we are reviewing the sentence to ensure that
it is reasonable. Smith, 440 F.3d at 706. If the district court imposes a sentence
within a properly calculated guideline range, we presume that the district court
considered all the necessary factors, and that the sentence is reasonable. United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United States v. Mares, 402
F.3d 511, 519-20 (5th Cir. 2005).
      Because we have already determined that the district court properly
calculated the sentencing guideline range, and Juarez-Duarte’s eighty-seven
month sentence is within that range, Juarez-Duarte must rebut the presumption
of reasonableness. See Mares, 402 F.3d at 519-20. His only argument is based
on the nature of his crime.      Specifically, he asserts that the sentence is
unreasonably long because illegal reentry into the United States after removal
is no more than simple trespass. We were not impressed with that argument in
United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006), nor are we
persuaded by it in this case. Congress considers illegal reentry into the United
States subsequent to a conviction for an aggravated felony an extremely serious
offense punishable by up to twenty years in prison. In light of the presumption
of reasonableness afforded sentences within the Guidelines range and this

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congressional judgment, Juarez-Duarte’s eighty-seven month sentence is not
unreasonable.
                           III. CONCLUSION
     For the foregoing reasons, we AFFIRM Juarez-Duarte’s sentence.




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