     Case: 11-50691     Document: 00511897884         Page: 1     Date Filed: 06/25/2012




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

                                                                            FILED
                                                                           June 25, 2012
                                     No. 11-50691
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JORGE ALFONSO GONZALEZ-DOMINGUEZ; JOSE RAMON GARCIA-
MORENO,

                                                  Defendants-Appellants


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 4:11-CR-18-1
                              USDC No. 4:11-CR-18-4


Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
        Jorge Alfonso Gonzalez-Dominguez (Gonzalez) and Jose Ramon Garcia-
Moreno (Garcia) appeal the sentences imposed for their convictions for aiding
and abetting possession with intent to distribute 100 kilograms or more but less
than 1,000 kilograms of marijuana. Gonzalez was sentenced to 70 months of
imprisonment and five years of supervised release, and Garcia was sentenced to


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-50691    Document: 00511897884        Page: 2     Date Filed: 06/25/2012

                                   No. 11-50691

63 months of imprisonment and five years of supervised release. They both
contend that the district court clearly erred by imposing the enhancement for
obstruction of justice in U.S.S.G. § 3C1.1 on the grounds that they committed
perjury by falsely testifying at their joint trial.
      “In order to apply an enhancement [for obstruction of justice], the district
court must find evidence supporting the enhancement to a preponderance of the
evidence.” United States v. Anderson, 560 F.3d 275, 283 (5th Cir. 2009). We
review the district court’s finding of obstruction of justice for clear error. United
States v. Powers, 168 F.3d 741, 752 (5th Cir. 1999). “A factual finding is not
clearly erroneous as long as it is plausible in the light of the record as a whole.”
Id. (internal quotation marks and citations omitted).
      Section 3C1.1 of the Sentencing Guidelines provides for a two-level
increase “[i]f (1) the defendant willfully obstructed or impeded, or attempted to
obstruct   or   impede,    the   administration       of   justice   with   respect    to
the . . . prosecution . . . of the instant offense of conviction, and (2) the
obstructive conduct related to (A) the defendant’s offense of conviction . . . .”
§ 3C1.1. The enhancement is warranted if the defendant “gives false testimony
concerning a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.” United States
v. Dunnigan, 507 U.S. 87, 94 (1993).
      The district court found that both Gonzalez and Garcia falsely testified
that there was a sixth person guiding them through the desert. These findings
are plausible in light of the record as a whole. See Powers, 168 F.3d at 752. The
agents apprehended five people, the same number of people that they observed
during surveillance, and testified that they would have been able to detect a
sixth person in the area with an infrared camera. Also, the agents observed one
of the five persons appearing to act as a guide by signaling to the other four
when to proceed and by scouting an area before proceeding. The agents did not
observe the signals that the guide allegedly left for the defendants, such as

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                                  No. 11-50691

stacks of rocks. In addition, one agent testified that it would not have been
feasible for the guide to lead the defendants at night while staying ahead of the
defendants given that the agents had trouble tracking the subjects even though
they were using night-vision goggles and knew where the subjects went.
      While it was possible that a sixth person escaped undetected, there was
no evidence corroborating the defendants’ testimony that a sixth person existed,
and the agents’ testimony indicated that it was unlikely that a sixth person
existed and was able to guide the defendants in the manner described by the
defendants. Therefore, the mere possibility that the guide could have escaped
undetected does not render the district court’s findings implausible in light of the
record as a whole. This is especially true given that the district court presided
over the trial and was, therefore, able to evaluate Gonzalez’s and Garcia’s
credibility. See id. at 752-53.
      Gonzalez and Garcia also rely on the jury note to challenge the district
court’s findings. The jury asked the district court whether they needed to
deliberate on the other elements of the duress defense if they all agreed that
there was insufficient evidence to support the second element. The second
element was whether the defendants had recklessly or negligently placed
themselves in a situation in which it was probable that they would be forced to
choose to commit criminal conduct. The other elements of the duress defense
were whether the defendants were threatened with harm, whether the
defendants had no reasonable legal alternative to violating the law, and whether
a reasonable person would have believed that he would avoid the harm by
committing the criminal action.
      Gonzalez and Garcia argue that the jury note indicates that the jury
believed the defendants’ testimony regarding the duress but nonetheless found
that the testimony was insufficient to excuse criminal liability. It is speculative
to infer based on the note that some or all of the jurors believed the defendants’
testimony. Further, the mere possibility that the jurors believed the defendants’

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                                  No. 11-50691

testimony does not render the district court’s findings implausible in light of the
record as a whole.
      Because the record as a whole supports the district court’s findings that
Gonzalez and Garcia committed perjury, the imposition of a two-level
enhancement for obstruction of justice was not clearly erroneous. See id. at 752.
      The district court’s judgments are AFFIRMED.




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