          United States Court of Appeals
                     For the First Circuit

No. 17-1914

                   UNITED STATES OF AMERICA,

                           Appellee,

                               v.

     CARLOS MANUEL PÉREZ-CRISOSTOMO, a/k/a Nelson Calderon,

                     Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                             Before

                      Howard, Chief Judge,
              Torruella and Lynch, Circuit Judges.


     MiAngel Cody on brief for appellant.
     Benjamin M. Block, Assistant United States Attorney, and
Halsey B. Frank, United States Attorney, on brief for appellee.




                        August 10, 2018
             LYNCH, Circuit Judge.            Carlos Manuel Pérez-Crisostomo

("Crisostomo") appeals from his 121-month sentence, arguing that

the district court erred in calculating his Guidelines sentencing

range     ("GSR")     because     it   imposed      an     unwarranted     sentence

enhancement for obstruction of justice and denied him credit for

acceptance    of     responsibility.          Having     carefully   reviewed   the

record –- which shows that Crisostomo maintained a false identity

throughout his criminal proceedings -- we disagree and affirm.

                                         I.

             For many years predating this offense, Crisostomo, a

citizen of the Dominican Republic, used the identity of a U.S.

citizen, "Nelson Calderon."              On March 7, 2016, Crisostomo was

charged with one count of conspiracy to distribute cocaine and

cocaine     base,      in    violation        of   21     U.S.C.     §§ 841(a)(1),

841(b)(1)(C), and 846. Crisostomo pleaded guilty without any plea

agreement as "Nelson Calderon" on November 21, 2016. He maintained

this false identity throughout his criminal proceedings.

             While the U.S. Probation Office ("USPO") was preparing

Crisostomo's        presentence    investigation          report     ("PSR"),   the

government came across evidence of his false identity: it found a

Puerto Rico driver's license photo of the real Nelson Calderon and

a Dominican passport at Crisostomo's apartment under the name

"Manuel    Carlos."         Confronted    with     this    evidence,     Crisostomo



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nevertheless continued to assert that he was, in fact, Nelson

Calderon.

            Crisostomo      refused      to    provide       the   USPO    with   any

information to verify his identity.                Instead, he claimed that he

was born in Puerto Rico and orphaned at a young age, but could not

name the church he was allegedly raised by or the school he had

attended.    He claimed that he had a brother in New York (and no

other family), but was unable to provide his brother's name.                       He

claimed to have a significant drug and alcohol addiction.                      And he

claimed to have a doctor (who treated him for various other

ailments) in Maine, but the USPO could not find any evidence that

such a doctor actually existed.             As a result, the USPO was unable

to piece together an accurate social or criminal history.

            The PSR calculated that Crisostomo's offense level was

32 (which included a two-level obstruction enhancement, and no

credit for acceptance of responsibility), and that his criminal

history category was I, resulting in a GSR of 121-151 months of

imprisonment,       see   U.S.S.G.    ch.     5,   pt.   A,    sentencing       table.

Crisostomo's    counsel       objected    to    the   obstruction         of   justice

enhancement in the PSR, arguing that Crisostomo "ha[d] no memory

of any other identity," and had "suffered a series of head traumas

which affect his cognition and memory."               However, defense counsel

later   filed   a    motion    to    continue      because    Crisostomo       finally

admitted his true identity.

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           Sentencing was delayed to September 7, 2017.      At the

outset of the hearing, Crisostomo still maintained that he was

"Nelson Calderon," but added that "[he] heard [he was] known as

Carlos."

           Two of his relatives testified at the hearing and flatly

contradicted Crisostomo's previous statements.    His sister-in-law

stated that she had always "called him Carlos," and was "definitely

sure" he had never used drugs. She also revealed that he used the

name "Nelson Calderon" in order "to be a U.S. citizen" to avoid

deportation. His niece stated that he often visited her family in

Providence, Rhode Island, and that he was helpful to her family.

           In light of this testimony and other facts provided by

the prosecution, the district court adopted the PSR's Guidelines

calculation, over the objection of Crisostomo's counsel.        The

district court stated:

           I am particularly troubled by repeated
           attempts by this defendant to mislead the
           Court. . . . I have indicated earlier that
           his   family   history,   in   my   view,   was
           deliberately falsified. His personal history
           was   falsified.       Where   he   lived   was
           falsified. . . . Most troubling is that even
           today when he is fully aware that I have become
           aware of his true identity he continues to
           attempt to mislead me with regard to his true
           identity.

Nevertheless, the district judge imposed a sentence at the low end

of the GSR: 121 months' imprisonment.    He also added a condition

to the PSR's terms of supervised release requiring Crisostomo to

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surrender to the Department of Homeland Security for possible

deportation upon the completion of his sentence. Crisostomo timely

appealed.

                                      II.

            Crisostomo     raises    two    procedural     challenges     to   the

district court's calculation of his GSR; he does not contest the

substantive reasonableness of his sentence. We review the district

court's findings of fact for clear error and conclusions of law de

novo. See United States v. Flores-Machicote, 706 F.3d 16, 20 (1st

Cir. 2013).    Because Crisostomo's claims are meritless, we affirm

his sentence.

A.   Obstruction of Justice Enhancement

            The   Sentencing        Guidelines     state     that     "providing

materially false information" to a probation officer regarding an

"investigation for the court", or to a judge or magistrate judge,

merits   application       of   a    two-level     obstruction      of    justice

enhancement.      U.S.S.G.      § 3C1.1,    cmt.   n.4(F),(H).       Crisostomo

nevertheless argues that the district court erred in imposing the

enhancement in his case because (1) he did not act "willfully,"

and (2) his false statements did not pose a "significant hindrance"

to the government's prosecution. Both arguments are unavailing.

            First,   the    record    contains     ample    support      for   the

district court's finding that Crisostomo acted with "conscious

motivation to fabricate" his identity.              He not only repeatedly

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lied about his name and citizenship status, but also concealed the

fact that he had family members in Rhode Island, whom he regularly

visited, and provided the name of a fictitious doctor, who he

alleged had treated him for his various claimed medical ailments.

           Further,    Crisostomo's           only    defense       --     that     he

unwittingly maintained a false identity due to "memory problems

related to a brain injury and lifelong substance abuse" -- is

highly implausible.        He failed to provide any evidence of his

supposed condition, and his assertions about his memory loss and

drug   abuse   were   flatly     contradicted        by    his     sister-in-law's

statements at the sentencing hearing. That ends the matter.

           Crisostomo's      second     argument          --     that    his     false

statements were not "material" -- is plainly wrong and foreclosed

by circuit precedent. As a threshold matter, the correct standard

of materiality here is not, as Crisostomo asserts, whether the

statements     "resulted    in    a     significant            hindrance    to     the

investigation or prosecution of [his] instant offense."                    U.S.S.G.

§ 3C1.1, cmt. n.5(A). That only applies to defendants who provide

a false identity upon arrest.          Id.     Here, Crisostomo continually

maintained a false identity until sentencing.                     Accordingly, we

need only decide whether the falsehood "could have impacted the

decisions of the sentencing court."            See United States v. Kelley,

76 F.3d 436, 441 (1st Cir. 1996).



                                      - 6 -
             The district court expressly found that Crisostomo's

false statements impacted its decisions.                    The court stated that

Crisostomo's       insistence      that    he   was      Nelson   Calderon   made   it

"difficult for probation to prepare [an accurate] life history"

and led the court "down the wrong path."

             This court has also repeatedly affirmed that lying about

one's name and nationality during criminal proceedings is material

and merits an obstruction enhancement.1                   See, e.g., United States

v.   Berrios,      132    F.3d   834,     840     (1st     Cir.   1998)    (affirming

obstruction enhancement for providing a false name, date of birth,

and other personal information during trial); United States v.

Restrepo,     53     F.3d   396,     397-98       (1st     Cir.   1995)    (affirming

obstruction        enhancement      for     providing       false    identification

information     to    pretrial      services      officer);       United   States   v.

Biyaga, 9 F.3d 204, 205-06 (1st Cir. 1993) (affirming obstruction

enhancement     for      lying   about     name    and     citizenship     status   to

probation officer).         The obstruction enhancement here was plainly

warranted.


      1   Other circuits have held the same. See, e.g., United
States v. Trujillo, 502 F.3d 353, 359 (5th Cir. 2007) (affirming
obstruction enhancement for defendant who provided false statement
about his nationality to probation officer); United States v.
Mohammed, 27 F.3d 815, 823 (2d Cir. 1994) (affirming obstruction
enhancement for defendant who provided false name to probation
officer in order to conceal his criminal history); accord United
States v. Doe, 661 F.3d 550, 566-67 (11th Cir. 2011); United States
v. Bedolla-Zavala, 611 F.3d 392, 396-97 (7th Cir. 2010); United
States v. Wilson, 197 F.3d 782, 785-86 (6th Cir. 1999).

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B.      Acceptance of Responsibility Credit

             Crisostomo also contends that the district court erred

in denying him credit for acceptance of responsibility –- a two-

level    reduction    defendants    often   receive     for    timely    pleading

guilty, see U.S.S.G. § 3E1.1(a) -- because he says that the denial

was based solely on the court's erroneous obstruction finding.

This argument merely rehashes his previous objection, which we

squarely rejected above.

             To the extent that Crisostomo is also arguing that he

is   entitled    to   credit   notwithstanding        the     district   court's

determination         that     he    "willfully            obstructed . . . the

administration of justice," id. § 3C1.1, that argument clearly

fails.      "Conduct    resulting    in     [such]    an    enhancement    . . .

ordinarily      indicates    that   the     defendant       has   not    accepted

responsibility for his criminal conduct."             Id. § 3E1.1, cmt. n.4.

Although this court has noted that an exception may be made in

"extraordinary cases," district courts are certainly not required

to give such a credit to defendants whenever they waive formal

indictment or do not object to the government's characterization

of their offense in the PSR.         See United States v. Maguire, 752

F.3d 1, 6 (1st Cir. 2014).          The record shows that the district

court here carefully considered the circumstances and found that

Crisostomo did not warrant the two-level reduction.                There was no

error, clear or otherwise.

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The sentence is affirmed.




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