UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4300

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BELKIS DIAZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. James C. Cacheris, Senior

District Judge. (CR-04-96-1)

Submitted: July 7, 2006 Decided: August 21, 2006

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

David B. Smith, ENGLISH & SMITH, Alexandria, Virginia, for

Appellant. Paul J. McNulty, United States Attorney, James P.

Gillis, Assistant United States Attorney, Alexandria, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1At sentencing, the Assistant United States Attorney stated

that the Government was unable to locate Rodriguez at the place of

employment provided by Diaz. On appeal, counsel for Diaz states

that, with a single telephone call, he verified Rodriguez’s

employment during the relevant time period at the taxicab company

identified by Diaz, and obtained other information regarding

Rodriguez.

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PER CURIAM:

Belkis Diaz appeals the sixty-three month sentence

imposed after she pleaded guilty to one count of making a false

statement in a passport application, in violation of 18 U.S.C.

§§ 1542, 2 (2000). Because we conclude that Diaz’s offense level

was improperly enhanced for obstruction of justice, we vacate her

sentence and remand for resentencing.

On appeal, Diaz raises four assertions of error in the

determination of her sentence. She first argues that the district

court erred in enhancing her offense level for obstruction of

justice and denying her a reduction in offense level for acceptance

of responsibility. The court’s decision arose from a statement

Diaz gave to officers after her arrest, in which she stated that

she committed the passport application fraud under the direction of

an individual named Jose Luis Rodriguez. The district court

concluded that Diaz’s statement regarding Rodriguez was false and

that the Government expended significant resources attempting to

locate Rodriguez based upon that statement,1

 which supported an

enhancement for obstruction of justice and the denial of a

reduction for acceptance of responsibility.
2

U.S. Sentencing Guidelines Manual (USSG) (2003).

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We review a district court’s determination that a

defendant obstructed justice for clear error. United States v.

Hughes, 401 F.3d 540, 560 (4th Cir. 2005). “A finding is clearly

erroneous when although there is evidence to support it, the

reviewing court on the entire record is left with the definite and

firm conviction that a mistake has been committed.” United States

v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). The Sentencing

Guidelines2 provide for a two-level increase in a defendant’s

offense level “[i]f (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.” USSG § 3C1.1.

“[P]roviding a materially false statement to a law

enforcement officer that significantly obstructed or impeded the

official investigation or prosecution of the instant offense” is

specifically listed as an example of conduct for which the

enhancement is appropriate. USSG § 3C1.1, comment. (n.4(g)). A

false statement regarding the culpability of a co-defendant is

sufficient to support the enhancement. United States v. Kiulin,

360 F.3d 456, 460 (4th Cir. 2004).
3

The district court’s denial of a reduction in Diaz’s offense

level for acceptance of responsibility naturally followed its

conclusion that she obstructed justice. See USSG § 3E1.1, comment.

(n.4). While we find that conclusion was erroneous, we express no

opinion on whether Diaz is entitled to a reduction in her offense

level for acceptance of responsibility on remand.

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We conclude that the district court’s decision to impose

the obstruction of justice enhancement was clearly erroneous.

Although a district court is given broad discretion in the type of

information it may consider at sentencing, 18 U.S.C. § 3661 (2000),

the information offered by the Government to support the

enhancement in this case is insufficient. Significantly, the

Government offered no testimony to establish the falsity of Diaz’s

statement or the significance of the impairment that the statement

caused to the investigation. As the issue of the falsity of Diaz’s

statement was disputed, the district court erred in relying on mere

proffers from the AUSA to support the enhancement. Because the

court’s denial of a reduction for acceptance of responsibility was

based upon its finding that Diaz obstructed justice, this

conclusion is also erroneous.3

Diaz also argues that the district court erred in

enhancing her offense level because the children whose identities

were used in the fraud scheme were vulnerable victims, pursuant to

USSG § 3A1.1(b)(1), and in applying a two-level enhancement based

on the use of a minor in the commission of the offense, pursuant to
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USSG § 3B1.4. We have considered Diaz’s arguments and find that

the district court properly applied these enhancements.

Diaz’s final argument is that her sentence is

unreasonable under Booker because the district court failed to

consider the factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2006), other than the Guidelines. Because we conclude that the

Guidelines range was not properly determined, Diaz’s sentence is

unreasonable. See United States v. Green, 436 F.3d 449, 457 (4th

Cir.) (sentence resulting from error in construing or applying the

Guidelines will be found unreasonable and vacated), cert. denied,

126 S. Ct. 2309 (2006).

We therefore vacate Diaz’s sentence and remand for

resentencing. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

VACATED AND REMANDED