                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         NOV 4 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                    No. 98-3234
                                               (D.C. No. 97-40084-01-SAC)
 LUIS ARMANDO PEREA-VIVAS,                         (District of Kansas)
 aka Jorge Colon Perez,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BRORBY, HENRY and LUCERO, Circuit Judges.



      Luis Armando Perea-Vivas pleaded guilty to possession with intent to

distribute cocaine, in violation of 21 U.S.C. § 841. His sentence calculation

included a two-level enhancement for obstruction of justice pursuant to the

United States Sentencing Guidelines (“USSG”) § 3C1.1. He appeals this two-

level enhancement, arguing that the evidence did not support its imposition. We

have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and affirm.



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                         I

       In October 1997, Perea-Vivas was a front-seat passenger in a Buick driven

by Asceneth Villota-Gomez when the vehicle was stopped for speeding by Kansas

Highway trooper B.K. Smith. While running computer checks on Villota-Gomez,

Smith elicited from her a statement that she had borrowed the car from “Yolanda”

to attend a cousin’s wedding, but did not know the location of the wedding and

was to meet someone in Kansas City at a convenience store at the corner of 27th

and Indiana Streets.   1



       Smith stated that his suspicions were aroused by a strong odor of

automobile body repair putty and fresh paint from within the vehicle, an odor he

associated, in his experience, with the possibility of a hidden compartment

containing drugs. These suspicions were exacerbated by the defendants’ nervous

behavior and Villota-Gomez’s implausible statement of her travel plans.

       Smith obtained Villota-Gomez’s consent to search the vehicle. Upon his

search, he discovered approximately five kilograms of what was eventually

determined to be cocaine. Upon Perea-Vivas’s arrest, he produced false Texas

identification indicating his name was Jorge Colon Perez. The address on this

recently-obtained identification card was later determined to be that of Isabel



       1
         Investigation subsequently discovered no convenience store in the
vicinity of the named intersection.

                                        -2-
Yolanda Cortez, the owner of the Buick. Perea-Vivas was also found to be in

possession of a pager obtained under the name of Isa or Yolanda Galvin, residing

at that same address, and receipts for the transfer of approximately $850 to

Colombia. Isabel Yolanda Cortez was also later discovered to have posted a

$2500 bond for Perea-Vivas’s previous arrest on immigration charges.

      Perea-Vivas and Villota-Gomez were charged by a grand jury with one

count of possession with intent to distribute more than five kilograms of cocaine,

in violation of 21 U.S.C. § 841(a)(1) & b(1)(A) and 18 U.S.C. § 2, and one count

of conspiracy to possess with intent to distribute cocaine, in violation of 21

U.S.C. §§ 841(a), 846 and 18 U.S.C. § 2. At their detention and arraignment

hearing, Villota-Gomez pleaded not guilty.

      In February of 1998, Perea-Vivas entered a petition to plead guilty to the

first count, possession with intent to distribute, in exchange for the government’s

promise to dismiss the conspiracy count and seek a sentence adjustment for

acceptance of responsibility. At his plea hearing, Perea-Vivas pleaded guilty and

requested the opportunity to address the court. Through an interpreter, Perea-

Vivas stated as follows:

      He says that he took advantage of the young lady, the codefendant,
      and she’s innocent. She knew nothing of that contraband in the car,
      that she knew absolutely nothing. He, um, he fooled her, I guess you
      might say. He made a fool of her or fooled her. She wasn’t aware
      that there were drugs in the car, and she knew nothing about it.
      She’s innocent.

                                          -3-
(II R. at 18-19.)

      Shortly later that day, the court accepted Villota-Gomez’s plea of guilty as

to the count of possession with intent to distribute. Neither the court nor the

government questioned Villota-Gomez regarding whether Perea-Vivas knew of

her knowledge of the contraband.

      The presentence report recommended that Perea-Vivas’s false assertion of

Villota-Gomez’s innocence represented a materially false statement to a judge and

therefore merited a two-level enhancement for obstruction of justice pursuant to

USSG § 3C1.1. Perea-Vivas objected, and the district court heard arguments

from both sides regarding the enhancement. With respect to the obstruction of

justice enhancement, the district court found the enhancement justified by Perea-

Vivas’s statement of Villota-Gomez’s innocence, noting as follows:

      The court does not accept defendant[’s] counsel’s reasoning that one
      didn’t know what the other was doing, and the court believes that the
      obstruction of justice and the information given to the court was
      false at the time it was given by the defendant to the court during his
      plea.

(V R. at 18.) The district court proceeded to sentence Perea-Vivas to 97 months

imprisonment. Perea-Vivas now appeals the imposition of the obstruction of

justice enhancement.




                                         -4-
                                         II

      “In reviewing an application of the Guidelines, we will reverse the district

court’s factual findings only if clearly erroneous. However, we will remand for

resentencing if the Guidelines were incorrectly applied.” United States v.

Bernaugh, 969 F.2d 858, 861 (10th Cir. 1992) (citations and internal quotations

omitted).

      USSG § 3C1.1 provides for a two-level sentencing enhancement 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; or (ii) a
      closely related offense.

USSG § 3C1.1. The Guidelines’ “non-exhaustive list of examples” for

application of this enhancement includes “providing materially false information

to a judge or magistrate.” USSG § 3C1.1, comment. (n.4(f)). “Material”

information means, for purposes of the obstruction of justice enhancement,

“information that, if believed, would tend to influence or affect the issue under

determination.” USSG § 3C1.1, comment. (n.6). “[T]he section 3C1.1

enhancement applies where a defendant attempts to obstruct justice in a case

closely related to his own, such as that of a codefendant.” Bernaugh, 969 F.2d at

861; see also USSG § 3C1.1, comment. (n.1(B)(ii)).



                                         -5-
      The parties apparently agree on the proposition, while differing as to its

implications, that in considering the application of an enhancement pursuant to

§ 3C1.1, the court should evaluate testimony in the light most favorable to the

defendant. See United States v. Arias-Santos, 39 F.3d 1070, 1076 (10th Cir.

1994). We note, however, that application note 1 to section 3C1.1 was amended,

effective November 1, 1997 (after Perea-Vivas’s crime but prior to his

sentencing) to eliminate language providing that “testimony or statements should

be evaluated in a light most favorable to the defendant.” USSG App. C, amend.

566. The application note now provides that “the court should be cognizant that

inaccurate testimony or statements sometimes may result from confusion,

mistake, or faulty memory and, thus, not all inaccurate testimony or statements

necessarily reflect a willful attempt to obstruct justice.” USSG § 3C1.1,

comment. (n.2). In determining which version of the Guidelines to apply, we

have held:

      Normally, district courts are to apply the sentencing guidelines in
      effect at the time of sentencing rather than the guidelines in effect on
      the date of the offense. See 18 U.S.C. § 3553(a)(4) & (5). But the
      ex post facto clause prohibits retroactive application of a changed
      guideline if the change disadvantages the defendant. See Miller v.
      Florida, 482 U.S. 423, 430, 433 (1987). See also United States v.
      Smith, 930 F.2d 1450, 1452 n. 3 (10th Cir. 1991).

United States v. Underwood, 938 F.2d 1086, 1090 (10th Cir. 1991). We need not




                                         -6-
resolve whether the amendment at issue implicates ex post facto issues because

our result remains the same under either version of the application note.

      We consider whether the district court’s factual findings were clearly

erroneous, or its application of USSG § 3C1.1 incorrect, with respect to the

necessary elements of this obstruction enhancement: falsity, materiality, and

willfulness. See United States v. Cerrato-Reyes, 176 F.3d 1253, 1263 (10th Cir.

1999).

                                     A. Falsity

      The falsity of Perea-Vivas’s statements is evident. Shortly after he

asserted Villota-Gomez’s innocence and ignorance of the contraband, she entered

a plea of guilty to a charge of possession with intent to distribute. This offense

necessarily incorporated an element of scienter, therefore refuting Perea-Vivas’s

assertion of his co-defendant’s ignorance. Perea-Vivas’s claim that his statement

was not a statement of fact but merely a subjectively true statement of his own

lack of knowledge of Villota-Gomez’s involvement is belied by his affirmative

statement to the court that he “made a fool of” or “fooled” his co-defendant.

Therefore, the element of falsity is clearly established.

                                  B. Materiality

      We agree with Perea-Vivas that a false statement regarding a co-

defendant’s innocence, like a false statement regarding a defendant’s own


                                         -7-
innocence, “does not automatically warrant” an obstruction of justice

enhancement. Cerrato-Reyes, 176 F.3d at 1263 (quoting United States v.

Markum, 4 F.3d 891, 897 (10th Cir. 1993)). Such a false statement must

additionally concern “a material matter designed to substantially affect the

outcome of the case.” Cerrato-Reyes, 176 F.3d at 1263 (quoting Arias-Santos, 39

F.3d at 1077). “Whether the particular facts of a case show that the

misinformation offered by the defendant was sufficient to significantly impede an

investigation is a question of fact to be determined by the sentencing court.”

United States v. Flores-Flores, 5 F.3d 1365, 1368 (10th Cir. 1993) (citing United

States v. Easterling, 921 F.2d 1073, 1077 (10th Cir. 1990)). 2 Although it is

unlikely, given the timing of Perea-Vivas’s statement, that the government or the

court would have believed his assertions of Villota-Gomez’s innocence, the

futility of his attempt at obstruction does not defeat the materiality of the

misinformation offered. See Flores-Flores, 5 F.3d at 1368 (holding that

“[m]ateriality in the context of false information is not determined by whether the

authorities somehow manage to ferret out accurate information prior to a

defendant’s first court appearance”).


      2
         Since the same judge sentenced both Perea-Vivas and Villota-Gomez,
that judge would seem uniquely qualified to make the factual assessment of
whether Perea-Vivas’s statement, if believed, would “tend to influence or affect
the issue under determination.” USSG § 3C1.1, comment. (n.6); see also Flores-
Flores, 5 F.3d at 1368.

                                         -8-
      Nor does the generality of Perea-Vivas’s statements render clearly

erroneous the district court’s factual finding of materiality. We have held that

“to sustain a USSG § 3C1.1 enhancement, a defendant need not provide a story

that when believed, would fully exculpate his or her codefendant. Rather, it is

enough that a defendant provides false information bearing on the extent of the

codefendant’s criminal liability.” United States v. Shumway, 112 F.3d 1413,

1426 (10th Cir. 1997) (citing Bernaugh, 969 F.2d at 862). As in Bernaugh, 969

F.2d at 862, “[i]n order to avoid making incriminating statements as to the roles

of his codefendants, [the defendant], while testifying under oath, chose to provide

false information to the court . . . partly in hope that if he were believed his

codefendants would avoid criminal punishment.” The fact that such hope was

ephemeral does not defeat findings of materiality and intent. See id.

      While the false statements at issue in Shumway and Bernaugh were

arguably more detailed and extensive than those before us in this case, the level

of detail is not solely determinative of whether information would, “if

believed, . . . tend to influence or affect the issue under determination.” USSG

§ 3C1.1, comment. (n.6). Under Shumway and Bernaugh, therefore, there is no

clear error in the district court’s finding of materiality.

                                       C. Intent




                                           -9-
      An enhancement under § 3C1.1 requires willful intent to mislead. See

Cerrato-Reyes, 176 F.3d at 1263; Flores-Flores, 5 F.3d at 1368 n.5 . The

government must demonstrate “that the defendant consciously acted with the

purpose to obstruct justice.” United States v. Hernandez, 967 F.2d 456, 459 (10th

Cir. 1992) (citing United States v. Gardiner, 931 F.2d 33, 35 (10th Cir. 1991)).

“[C]entral to the willfulness inquiry ‘[is] the defendant’s knowledge of the

requirements placed upon him by the court and his conscious decision to ignore

its mandate.’” United States v. Taylor, 997 F.2d 1551, 1560 (10th Cir. 1993)

(quoting United States v. Monroe, 990 F.2d 1370, 1376 (D.C. Cir. 1993)). Thus,

there must be “the willful intent to provide false testimony, rather than as a result

of confusion, mistake, or faulty memory” to sustain the enhancement. United

States v. Dunnigan, 507 U.S. 87, 94 (1993); see Arias-Santos, 39 F.3d at 1076-77.

      Perea-Vivas’s principal argument regarding lack of intent proceeds as

follows: Villota-Gomez’s guilty plea indicates that she knew of the drugs, but

does not prove that Perea-Vivas knew that she knew. Therefore, while Perea-

Vivas’s statement was false, there is no proof it was intentionally false, as he

might have (wrongly) believed it true, and there is nothing but inference to impute

to him knowledge of her knowledge.

      While it is true that the knowledge and therefore requisite intent are only

imputed to Perea-Vivas by inference, the inferences mustered by the government


                                         -10-
are sufficiently strong to uphold against clear error review the conclusion that he

knew that Villota-Gomez was involved in smuggling the drugs. First, Perea-

Vivas apparently spoke little English and had been in the country only a short

time, and therefore the government suggests it was unlikely that anyone would

entrust him alone with over a million dollars in cocaine. Second, only Villota-

Gomez had the directions and pager number to meet their delivery contact in

Kansas city. The fact that she had this information, and made false and vague

statements regarding their destination, strongly suggests that she was not, as

Perea-Vivas asserts, merely his dupe. For he did more than simply profess

ignorance of her involvement; he affirmatively testified that he had fooled her

into participating.

      While the government or the court might have obtained additional evidence

of Perea-Vivas’s knowledge of Villota-Gomez’s involvement through further

questioning of Villota-Gomez, the government’s burden of demonstrating

grounds for an enhancement does not require all potentially available evidence,

only a preponderance of the evidence. 3 See, e.g., United States v. Pelliere, 57


      3
         Perea-Vivas also relies on the fact that in Bernaugh, the co-defendants
were prepared to go to trial, whereas Villota-Gomez was already prepared to
plead guilty. This distinction does not defeat the finding of willful intent. While
it appears obvious that the court had ample reason not to believe appellant’s
assertions of Villota-Gomez’s ignorance, the focus in assessing imposition of a §
3C1.1 enhancement is on the purpose and possible effect of his statements, not
their actual effect. See, e.g., Flores-Flores, 5 F.3d at 1368; Bernaugh, 969 F.2d

                                         -11-
F.3d 936, 938 (10th Cir. 1995). The evidence in this case is sufficient to sustain

against clear error review the district court’s conclusion that the government’s

burden was met with respect to the element of willfulness. Therefore, we defer

to the district court’s finding that Perea-Vivas willfully and intentionally

provided false information to the court regarding Villota-Gomez’s role in the

crime. See Bernaugh, 969 F.2d at 861-62.

                                         III

      Perea-Vivas’s sentence is AFFIRMED. 4

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




at 862.
      4
          The government’s motion to supplement the record is granted.

                                         -12-
