* Pursuant to 5TH CIR. R. 47.5, we have 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not be published and is not precedent except under the limited circumstances set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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-50280

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EMILIO LUNA,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

(W-95-CR-71-1)

_________________________

January 14, 1997

Before HIGGINBOTHAM, SMITH, and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Emilio Luna appeals his sentence for possession of cocaine

with intent to distribute. We affirm.

I.

Investigators from the Central Texas Narcotics Task Force
2

received information that Luna was distributing cocaine at his home

in Belton, Texas. The investigators obtained a search warrant for

Luna’s residence and attempted to serve it. As Luna drove up to

his trailer, he spotted the officers and began to speed awaySSfirst

through his front yard, then through a chain-link fence, and

finally through the streets of Belton. As they pursued him, the

investigators saw Luna first discard white powder through his open

driver’s door, then later hurl a number of small plastic bags from

the driver’s window. 

The chase ended four to five miles from where it had begun

when Luna drove into a cul-de-sac and was taken into custody. The

plastic bags also were recovered; they tested positive for cocaine.

Because it was raining and much of the cocaine had been spilled

into the mud, however, the investigators were unable to determine

exactly how much of it Luna had possessed.

Luna pleaded guilty to possession of cocaine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1). At his

sentencing hearing, the district court both denied his request for

a downward adjustment in his base offense level for acceptance of

responsibility and overruled his objection to a two-level upward

adjustment for obstruction of justice. 

II.

We first must address Luna’s motion to proceed in forma
 

1 While Luna’s appeal was pending, the President signed the Prison

Litigation Reform Act of 1995 (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321

(1996), which substantially amended § 1915. The portion of § 1915 that affects

criminal cases has not been changed, however, and the PLRA therefore does not

apply to the instant case. Cf. United States v. Cole, 101 F.3d 1076, ____ (5th

Cir. 1996) (holding that the PLRA does not apply to habeas corpus petitions).

 

2 Although Boutwell was a one-judge order rather a full panel opinion,

under our local rules it is accorded the same precedential weight. See FED R.

APP. P. 27(c); 5TH CIR. R. 27.2.4.

3

pauperis (“IFP”) on appeal. The district court appointed counsel

for the trial phase of Luna’s prosecution under the Criminal

Justice Act (“CJA”) and thus necessarily determined that Luna was

financially unable to obtain adequate representation. See

18 U.S.C. § 3006A(a). When Luna filed his notice of appeal, the

district court issued a 28 U.S.C. § 1915(a) certification that the

appeal was not taken in good faith.1 This determination, to which

we accord considerable weight, raises the issue of whether and

under what circumstances Luna may continue his IFP status on

appeal.

In United States v. Boutwell, 896 F.2d 884 (5th Cir. 1990), we

analyzed the interplay between FED R. APP. P. 24(a), the rule on

appellate IFP proceedings, 18 U.S.C. § 3006A, the relevant

provision of the CJA, and § 1915.2 We held that a criminal

defendant proceeding IFP is entitled to rights no greater and no

less than is one who pays a fee and that IFP status does not

insulate a litigant from the requirement that his appeal not be

frivolous. 896 F.2d at 889-90. We also noted that under

rule 24(a), a request to proceed IFP need be made only once,
4

“whenever the question first arises.” Id. at 889 (emphasis

deleted). 

The issue of whether Luna may continue his IFP status thus

hinges on whether his appeal is frivolous. If it is, § 1915(a) and

rule 24(a) mandate that he may not proceed IFP. If it is not,

rule 24(a) permits him to proceed IFP without further authorization, because he was accorded that status in the court below.

A lawsuit is frivolous if it lacks an arguable basis either in

law or in fact. Denton v. Hernandez, 504 U.S. 25, 31-34 (1992).

See also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (holding

that a complaint is legally frivolous if it is based on an

“indisputably meritless legal theory”). Luna presents two grounds

for appeal, only one of which need be considered to resolve this

question. 

In arguing that the district court should not have upwardly

adjusted his base offense level for obstruction of justice, Luna

asserts that it was clearly erroneous to find that his destruction

of evidence materially hindered his sentencing. He points out that

the government simply could have asked him how much cocaine he

destroyed, and he additionally contends that whatever hindrance his

destruction of evidence may have caused was immaterial. 

Although we do not find these to be particularly strong

arguments, they do have sufficient basis to survive the above test.

Accordingly, we vacate the certification that this appeal has not
5

been brought in good faith. Luna’s IFP status continues in this

court because he had it in the district court, and his motion is

therefore denied as moot.

III.

The substantive issues in this appeal relate to the district

court’s application of the sentencing guidelines. As always, we

review the district court’s factual findings for clear error and

its interpretations of the sentencing guidelines de novo. See,

e.g., United States v. Gaytan, 74 F.3d 545, 558 (5th Cir.), cert.

denied, 117 S. Ct. 77 (1996); United States v. McCaskey, 9 F.3d

368, 372 (5th Cir. 1993), cert. denied, 511 U.S. 1042 (1994).

Consistent with this standard, we have previously held that the

factual determination of whether a defendant has obstructed justice

is reviewable for clear error. United States v. Bethley, 973 F.2d

396, 402 (5th Cir. 1992) (citing United States v. Paden, 908 F.2d

1229, 1236 (5th Cir. 1990)), cert. denied, 507 U.S. 935 (1993).

A.

Luna contends that the district court erred in increasing his

base offense level for obstruction of justice under U.S.S.G.

§ 3C1.1, which provides that a defendant may receive a two-level

increased if he “willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the
6

investigation, prosecution, or sentencing of the instant offense.”

The commentary to § 3C1.1 provides an extensive but non-exhaustive

list of actions that constitute obstruction. Id. comment. (n. 3).

Among these actions is destruction of evidence, which the commentary notes is insufficient independently to support an adjustment

if it occurred at the same time as the defendant’s arrest, “unless

it resulted in a material hindrance to the official investigation

or prosecution of the instant offense or the sentencing of the

offender.” U.S.S.G. § 3C1.1, comment. (n. 3(d)).

The district court found that attempting to destroy the

cocaine “did constitute a material hindrance to the investigation,

prosecution and sentencing of this case,” as it made it considerably more difficult to determine how much cocaine Luna had

possessed. This finding was adopted from the PSR, in which the

writer was forced to estimate the amount of cocaine involved in

Luna’s offense with information from Luna's suppliers and the

amount of tainted currency his wife possessed. Luna’s argument, in

essence, is to challenge the finding on this issue as clear error.

Because the government could have simply asked him how much cocaine

he threw out the window, he reasons, the fact that he did it was

not a “material hindrance.”

This argument is unavailing. In United States v. VelgarVivero, 8 F.3d 236 (5th Cir. 1993), cert. denied, 511 U.S. 1096

(1994), we rejected a similar challenge to a § 3C1.1 enhancement
7

where the defendant had cast a sock full of bullets into Galveston

Bay and chewed a list of phone numbers to pulp. Though tossing

cocaine out the window of his car may not have materially impeded

Luna’s arrest or guilty plea, it did hinder the determination of

facts that were crucial to his sentencing. We therefore see no

clear error. 

B.

Luna also contends that the district court erred in denying

him a downward adjustment to his base offense level for acceptance

of responsibility under U.S.S.G. § 3E1.1. We note initially that

the burden of demonstrating acceptance of responsibility was

Luna’s, see United States v. Ayala, 47 F.3d 688, 690 (5th Cir.

1995), and the refusal to grant this adjustment is entitled to

“great deference” on review, United States v. Vital, 68 F.3d 114,

120-21 (5th Cir. 1995). See also United States v. Garcia, 917 F.2d

1370, 1377 (5th Cir. 1990) (noting that we uphold a sentencing

court's decision not to award a § 3E1.1 reduction unless it is

"without foundation."). Moreover, it is only in an “extraordinary

case[]” that a defendant who has received an upward adjustment for

obstruction of justice may be eligible for this downward adjustment

as well. Ayala, 47 F.3d at 691.

Luna’s arguments on this point are meritless. The PSR, which

the district court adopted, found that the acceptance-of-responsi-
8

bility adjustment was inappropriate because Luna (1) had lied about

when he had begun selling cocaine; (2) had falsely suggested that

he had been shot by the investigators; (3) had lied about how many

bags of cocaine he discarded; (4) had failed to express remorse or

contrition for his actions; and (5) had fled from the investigators

and destroyed evidence. In short, there was abundant justification

for denying the adjustment, and the district court did not err in

so doing.

AFFIRMED.

Judge Garza concurs in the judgment only.