                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                        May 15, 2007

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                   No. 05-40853
                                 Summary Calendar


                          UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                        versus

                                 DAVID SANCHEZ,

                                                          Defendant-Appellant.

                           --------------------
               Appeal from the United States District Court
                    for the Southern District of Texas
                         USDC No. 2:04-CR-716-ALL
                           --------------------

Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.

PER CURIAM:*

       David Sanchez appeals from his conviction of possession with

intent to distribute marijuana.

       Sanchez contends that his guilty plea was involuntary because

it was influenced by the statements of the district court, the

prosecutor, and defense counsel that he had committed perjury in

his IFP application and during his initial appearance, and by the

prosecutor’s threat to prosecute him for perjury.               He argues that

the record does not support a finding that he committed perjury or

made       false   statements.     He    asserts   that   the   district    court

       *
      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this opinion should not be published and is not precedent except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.
improperly participated in the plea negotiation process during the

pretrial hearing.      He further asserts that his plea was rendered

involuntary by ineffective assistance of counsel.

     Sanchez     was   properly   chargeable   with   perjury.   The

prosecutor’s statement that he intended to charge Sanchez with

perjury if Sanchez testified at his trial was not improper.       See

Bordenkircher v. Hayes, 434 U.S. 357, 364-65 (1978).        Sanchez’s

statements in his IFP application and at his initial appearance

were inconsistent with defense counsel’s theory of the case.     The

statements likely would have seriously undermined that theory of

the case.    Without a plausible defensive theory, a conviction was

likely on the facts articulated in support of Sanchez’s plea

agreement.     Counsel was not ineffective for counseling Sanchez to

plead guilty.     See Strickland v. Washington, 466 U.S. 668, 687

(1984).   The district court’s statements regarding the evidence of

perjury were made during a discussion of the admissibility of that

evidence; there was no plea negotiation procedure in which the

district court could intervene.        See United States v. Reasor,

418 F.3d 466, 478 (5th Cir. 2005).

     Sanchez contends that the district court erred by adjusting

his offense level for obstruction of justice based on his financial

affidavit and/or his statements at the initial appearance and that

counsel was ineffective for failing to object to the adjustment.

The relevant guideline commentary lists “producing or attempting to

produce a false, altered, or counterfeit document or record during

                                   2
an official investigation or judicial proceeding” as a ground for

the obstruction adjustment.   U.S.S.G. § 3C1.1, comment. (n.4(c)).

False statements on a financial affidavit can serve as the basis

for the obstruction adjustment.       See United States v. McDonald,

964 F.2d 390, 392 (5th Cir. 1992) (using an alias on financial

affidavit).   Moreover, because the adjustment was appropriate,

counsel was not deficient for failing to oppose it.      See Koch v.

Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (counsel is not required

to make futile objections).

     AFFIRMED.




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