United States Court of Appeals

For the Eighth Circuit

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No. 13-1694

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Raymond Cortez

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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 Submitted: October 25, 2013

 Filed: March 4, 2014 

[Unpublished]

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Before BYE, SMITH, and BENTON, Circuit Judges.

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PER CURIAM.

Raymond Cortez was convicted after a jury trial of one count of making a false,

fictitious, or fraudulent material statement, in violation of 18 U.S.C. § 1001(a)(2).
The district court imposed a within-Guidelines range sentence of 21 months' 1

imprisonment. Cortez now appeals his conviction and sentence. We affirm.

I. Background

Cortez was charged with one count of making a false, fictitious, or fraudulent

materialstatement, in violation of 18 U.S.C. § 1001(a)(2). The charge stemmed from

a purported false statement that Cortez made to a United States Postal Inspector

investigating a conspiracy to obtain federal student loan proceeds by fraud. Cortez

entered into a written plea agreement with the government in which he agreed to

plead guilty to the charge. The plea agreement included the following stipulation, in

which Cortez admitted to the following facts:

A. On or about October 13, 2007, defendant's son and others

attempted to get C.Z. to cash a federal student loan proceeds

check at a check-cashing establishment near a specific grocery

store on First Avenue in Cedar Rapids, Iowa. Defendant was with

his son and the others at the time and drove them to the area of

the check-cashing establishment in defendant's black Hummer

vehicle. Rather than cash the check, C.Z. took the check and fled

on foot. Defendant and the others chased C.Z. in defendant's

black Hummer with defendant driving the vehicle. C.Z[.] ran into

the grocery store, and defendant and the others left the area in

defendant's black Hummer. 

B. In November 2007, a United States Postal Inspector (Inspector)

was investigating a scheme to defraud the United States

Department of Education concerning the federal student loan

proceeds check referred to in paragraph A above and the incident

involving the chase of C.Z. in the Hummer. On or about

November 20, 2007, the Inspector was participating in the

execution of a search warrant at defendant's son's Cedar Rapids

The Honorable Linda R. Reade, Chief Judge, United States District Court for

1

the Northern District of Iowa. 

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residence. Defendant drove up to the residence in his black

Hummer and spoke to the Inspector. The Inspector identified

himself to defendant as a United States Postal Inspector. The

Inspector asked defendant if defendant knew anything about a

black Hummer chasing an individual down First Avenue about a

month prior. Defendant falsely denied knowing anything about

the chase. Defendant made the false statement to the Inspector

willfully and knowing that his statement was false. The false

statement was material to the Inspector's investigation.

Cortez "agree[d] this stipulation [could] be used against [him] at any time in

any proceeding should [he] violate orrefuse to follow through on this plea agreement,

regardless of whether the plea agreement has been accepted by the Court." At a

change-of-plea hearing, Cortez did not follow through on the plea agreement and did

not plead guilty. 

Subsequently, the case wastried to a jury. The factual stipulation was admitted

into evidence at trial. Cortez moved for judgment of acquittal at the close of the

government's case and renewed that motion at the close of all evidence. The district

court denied the motions. The jury found Cortez guilty of making a false, fictitious,

or fraudulent material statement, in violation of 18 U.S.C. § 1001(a)(2). 

At sentencing, over Cortez's objection, the district court applied a base offense

level of six under U.S.S.G. § 2B1.1(b)(1)(D) based on its finding of a loss amount of

between $30,000 and $70,000. Also over Cortez's objection, the district court applied

a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. The court

calculated an advisory Guidelines range of 15 to 21 months' imprisonment. It

ultimately sentenced Cortez to 21 months' imprisonment. 

II. Discussion

On appeal, Cortez argues that (1) there wasinsufficient evidence to support the

jury's verdict, (2) the district court erred in applying a two-level enhancement for

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obstruction of justice as a result of his testimony at trial, (3) the loss amount attributed

to him under U.S.S.G. § 2B1.1 was not supported by the evidence, and (4) his

sentence is substantively unreasonable. 

A. Sufficiency of the Evidence

"We review the sufficiency of the evidence de novo, construing the evidence

in the light most favorable to the verdict and will only overturn the conviction if no

reasonable jury could find [Cortez] guilty beyond a reasonable doubt." United States

v. Jirak, 728 F.3d 806, 811 (8th Cir. 2013) (citation omitted). "On appeal, the

evidence is viewed in the light most favorable to the government, resolving

evidentiary conflicts in favor of the government and accepting all reasonable

inferences drawn from the evidence that support the jury's verdict." United States v.

Hinojosa, 728 F.3d 787, 789 (8th Cir. 2013) (citation omitted). 

Cortez was convicted of making a false, fictitious, or fraudulent material

statement, in violation of 18 U.S.C. § 1001(a)(2). 

"To establish a violation of 18 U.S.C. § 1001, the Government must

prove that: '(1) the defendant made a statement; (2) the statement was

false, fictitious or fraudulent as the defendant knew; (3) the defendant

made the statement knowingly and willfully; (4) the statement was

within the jurisdiction of a federal agency; and (5) the statement was

material.'" United States v. Rice, 449 F.3d 887, 892 (8th Cir. 2006)

(quoting United States v. Johnson, 937 F.2d 392, 396 (8th Cir. 1991)).

United States v. McKanry, 628 F.3d 1010, 1018 (8th Cir. 2011). 

Having reviewed the record, we conclude thatsufficient evidence supportsthe

jury's verdict. In fact, the detailed factual stipulation contained in Cortez's written 

plea agreement and entered into evidence at trial satisfies all the elements of

§ 1001(a)(2). In thatstipulation, Cortez admitted that he "falsely denied" to a "United

States Postal Inspector" that he knew "anything about the chase." He admitted to

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making "the false statement to the Inspector willfully and knowing that his statement

was false." He also admitted that this "false statement was material to the Inspector's

investigation." Thus, the factual stipulation satisfies all five elements of § 1001(a)(2).

B. Sentencing

Cortez also argues that the district court procedurally erred in calculating his

advisory Guidelines range and that his sentence of 21 months' imprisonment is

substantively unreasonable. 

"When we review the imposition of sentences, whether inside or outside the

Guidelines range, we apply a deferential abuse-of-discretion standard." United States

v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quotations and citations

omitted). Improperly calculating the advisoryGuidelines range constitutes procedural

error. Id. "In the absence of procedural error below, we should then consider the

substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard." Id. (quotation and citation omitted). Under this standard, we "take into

account the totality of the circumstances, including the extent of any variance from

the Guidelines range." Id. (quotation and citation omitted). On appeal, we may apply

a presumption of reasonableness to a within-Guidelines sentence. Id. In evaluating

the substantive reasonableness of a sentence, we "must give due deference to the

district court's decision that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the

extent of the variance." Id. at 461–62 (quotation and citation omitted). 

1. Procedural Error

Cortez alleges that the district court procedurally erred in applying the twolevel enhancement for obstruction of justice and calculating the amount of loss

between $30,000 and $70,000. 

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a. Obstruction of Justice

Cortez argues that the district court erroneously applied a two-level

enhancement for obstruction of justice. Cortez contends that conflicts between his

testimony and that of other witnesses do not establish that he was dishonest or

willfully misleading. He maintains that, by the time of trial, the majority of events

discussed in testimony were five years old and that the event in question lasted

approximately five to ten minutes.

Section 3C1.1 of U.S.S.G. provides:

If (1) the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense of

conviction, and (2) the obstructive conduct related to (A) the defendant's

offense of conviction and any relevant conduct; or (B) a closely related

offense, increase the offense level by 2 levels.

Section 3C1.1

is not intended to punish a defendant for the exercise of a constitutional

right. A defendant's denial of guilt (other than a denial of guilt under

oath that constitutes perjury), refusal to admit guilt or provide

information to a probation officer, or refusal to enter a plea of guilty is

not a basis for application of this provision. In applying this provision

in respect to alleged false testimony or statements by the defendant, 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.

Id. cmt. n.2. "[C]ommitting, suborning, or attempting to suborn perjury" are "types

of conduct to which this enhancement applies." Id. cmt. n.4(B).

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"A witnesstestifying under oath" commits perjury when he "gives

false testimony concerning a material matter with the willful intent to

provide false testimony." United States v. Dunnigan, 507 U.S. 87, 94,

113 S. Ct. 1111, 122 L. Ed. 2d 445 (1993), possibly abrogated on other

grounds by United States v. Wells, 519 U.S. 482, 117 S. Ct. 921, 137 L.

Ed. 2d 107 (1997). Because false testimony may instead be the result of

"confusion, mistake, or faulty memory," district courts "must review the

evidence and make independent findings necessary to establish a willful

impediment to or obstruction of justice" before applying a sentence

enhancement under U.S.S.G. § 3C1.1. Id. at 95, 113 S. Ct. 1111. A

district court must then decide by a preponderance of the evidence

whether a defendant committed perjury for § 3C1.1 purposes. See

United States v. Stulock, 308 F.3d 922, 926 (8th Cir. 2002). We review

such a finding for clear error. See id. at 925–26.

United States v. Petrovic, 701 F.3d 849, 859 (8th Cir. 2012). 

Here, the district court applied the obstruction-of-justice enhancement,

explaining:

With regard to the adjustment for obstruction of justice, the Court

must make this assessment independent of the jury's verdict, and I find

by a preponderance of the evidence that the defendant did commit

perjury at trial in making statements under oath in front of the jury and

Court for the purpose of trying to avoid conviction. These were material

false statements. They were not made out of confusion or mistake. They

were definitely willful. And as I said, they were material because they

went to the heart of the case. So the obstruction of justice is

appropriately scored.

(Emphasis added.) Cortez argues that our review is hampered because the district

court did not cite which statements resulted in application of the enhancement. But

the court was reviewing Cortez's objection to application of the enhancement as set 

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forth in ¶ 16 of the presentence report (PSR), which identified the factual statements

at issue:

According to the prosecutor's offense conduct statement, the defendant

committed perjury during his testimony at trial by falsely claiming that

Inspector [Ronald] Jewell only asked him about an assault and battery

during the November 20, 2007, interview; falsely testifying that he did

not admit lying to InspectorJewell when he wasre-interviewed on April

4, 2012; and falsely testifying that the factual statement in the written

plea agreement was not true. Therefore, a two-level increase for

obstruction of justice is recommended.

In applying the enhancement, the court complied with Petrovic, asit confirmed

that it had independently assessed the jury's verdict and found by a preponderance of

the evidence that the defendant did commit perjury at trial in making materially false

statements under oath in front of the jury. A review of the record shows that Cortez's

testimony at trial, in which he claimed that Inspector Jewell asked him only about an

assault and battery during the November 20, 2007 interview, is directly contrary to

the factual stipulation that Cortez agreed to in the written plea agreement.

Accordingly, we hold that the district court did not clearly err in applying the

obstruction-of-justice enhancement. 

b. Loss

Cortez contendsthat the court'sloss calculation of $40,000 lacks support in the

record because he never willfully participated in the scheme to defraud and was not

charged with doing so. Cortez contends that the evidence established that sums paid

to him by his son, Michael Cortez, was due to Michael's personal indebtedness to

Cortez and not because of a business arrangement between them. He also argues that

no relationship exists between the charged fraudulent statements and a $40,000 loss

because the check at issue during the chase was only for $3,300. He concludes that

no further monetary loss is attributable to the false statement. 

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"The government bears the burden of proving the amount of loss by a

preponderance of the evidence." United States v. Sample, 213 F.3d 1029, 1034 (8th

Cir. 2000) (citation omitted). "We review the district court's factual findings

regarding the amount of loss for clear error." Id. (citation omitted). 

At sentencing, the district court found "that the amount of the loss was as set

forth in the presentence investigation report, Paragraph 20, more than $30,000 but

less than $70,000." The court found "ample evidence that [Cortez] did receive

$40,000 of the proceeds from the scheme and that that amount of loss would have

been reasonably foreseeable to him and within the scope of the relevant conduct that

he agreed to jointly undertake." In turn, ¶ 20 of the PSR provides:

The defendant participated in that scheme by providing some of the

initial supplies that were used to commit the scheme, moving some of

the evidence in order to evade detection by law enforcement, and

transporting the participants in the offense to cash one of the financial

aid checks that had been unlawfully obtained . . . . 

The defendant's offense of conviction involved making a false statement

regarding his involvement in chasing an individual who took off with a

$3,323 check from the financial aid scheme . . . .

The evidence in this case establishes that the defendant participated in

a financial aid scheme and that he received approximately $40,000 of

the proceeds from that scheme. The fact that the defendant received

$40,000 of the proceeds from the financial aid fraud scheme establishes

that that amount of loss would have been reasonably foreseeable to him

and within the scope of the relevant conduct that he agreed to jointly

undertake.

Trial testimony supports the PSR's factual statements. Specifically, Michael

testified that Cortez did "get . . . money from the scheme from other checks." He

testified that Cortez "probably [received] 40 grand" "from other checks in the

scheme." Similarly, Brenda Cortez, Michael's wife, testified that Cortez was "always

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receiving money" from the "student loan checks." She recalled Cortez saying that he

"need[ed] the money" after C.Z. fled with the check. 

Cortez argues that $40,000 in loss should not be attributed to him because he

was not a participant in the scheme. The aforementioned evidence shows otherwise.

Cortez's argument that the district court erroneously applied the loss enhancement

because "no other individuals were defrauded as a result of any statement made by

[Cortez] that evening" also fails because, as the government points out, Cortez made

the false statement to the United States Postal Inspector to conceal the scheme and

avoid detection; therefore, the statement was made in furtherance of the scheme. Cf.

United States v. Finck, 407 F.3d 908, 913 (8th Cir. 2005) ("During the investigation,

Finck made two materially false statements to law enforcement officials . . . . These

statements led law enforcement astray and allowed him to further his fraudulent

scheme during the investigation."). Morever, courts have recognized that

"'[a]voidance of detection and prevention of recovery of money lost by the victims

are within, and often a material part of, the illegal scheme. Further profit from the

scheme to defraud, as such, may be over, and yet the scheme itself be not ended.'"

United States v. Redcorn, 528 F.3d 727, 741 (10th Cir. 2008) (alteration in original)

(quoting United States v. Riedel, 126 F.2d 81, 83 (7th Cir. 1942)). 

Therefore, we conclude that the district court did not clearly err in calculating

the amount of loss. 

2. Substantive Reasonableness

Finally, Cortez argues that his sentence is substantively unreasonable because

it fails to account properly for his good works in the community, the lack of severity

of his conduct, and the availability and deterrent effect of a probationary sentence. 

"[W]e note that [Cortez's] within-guidelines sentence is presumptively

reasonable." United States v. Roddy, 533 F. App'x 684, 685 (8th Cir. 2013) (per

curiam) (citation omitted). After reviewing the record, we conclude that Cortez has

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not rebutted this presumption. In imposing the 21-month sentence, the district court

stated that it "ha[d] carefully considered all the statutory factors at 18 United States

Code Section 3553(a)," "considered the trial evidence," considered "arguments and

character letters," and "carefully considered the oral and written arguments of defense

counsel and the reply by the United States" regarding a variance. 

The district court's placement of "greater emphasis in this case on factors that

favored a sentence within the advisory range . . . than on other § 3553(a) factors that

might favor a more lenient sentence is a permissible exercise of the considerable

discretion available to a sentencing court under the post-Booker regime." United

2

States v. Ruelas–Mendez, 556 F.3d 655, 658 (8th Cir. 2009). Having reviewed the

sentencing transcript, we conclude that "the district court thoroughly considered the

relevant factors set forth in § 3553(a) and reached a substantively reasonable

conclusion." United States v. Bauer, 626 F.3d 1004, 1010 (8th Cir. 2010).

III. Conclusion

Accordingly, we affirm the judgment of the district court. 

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United States v. Booker, 543 U.S. 220 (2005). 2

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