1 District Judge for the Eastern District of Louisiana, sitting

by designation.

1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-51350

UNITED STATES OF AMERICA,

Plaintiff -Appellee,

VERSUS

ISHTIAQ AHMED,

Defendant -Appellant.

Appeal from the United States District Court

For the Western District of Texas

March 10, 2003

Before DeMOSS, STEWART, Circuit Judges, and FALLON, 1 District

Judge.

DeMOSS, Circuit Judge:

Appellant Ishtiaq Ahmed pled guilty to a one count indictment

alleging a violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (B)(ii)

for harboring an illegal alien. At sentencing, the district court

overruled Ahmed’s objection to a two level increase for obstructing

the investigation and sentenced Ahmed to six months imprisonment,2

three years supervised release, a $100.00 mandato ry special

assessment fee, and a $1,000.00 fine. Ahmed now appeals his

sentence.

BACKGROUND

On or about July 14, 2002 , four Pakistani nationals jumped

ship from the “Little Lady P,” a vessel which was docked in St.

Charles Parish, Louisiana. One of the four sailors was Ahmed’s

nephew. None of the Pakistani sailors had legal status to be in

the United States when not on the ship docked in an American port.

The sailors arranged for a local taxi cab driver, Burwell Harris,

to drive them to Texas. En route to Texas, Harris placed a phone

call for the sailor s to a Waco, Texas, number but did not get an

answer. The sailors then continued their journey with Harris but

apparently Harris abandoned the sailors in Lafayette, Louisiana,

after receiving $400 from them for the trip.

The sailors then arranged to ha ve another taxi cab driver,

Douglas Adams, drive them from Lafayette to Wac o for $600. En

route to Waco, Adams also placed a phone call to Waco for the

sailors and received instructions as to where to deliver them.

Adams dropped the sailors off at a Jack-in-the-Box on I-35 in

Bellmead, Texas, where they were met by a man the sailors referred

to as “Uncle,” according to Adams.

Apparently, Ahmed was the contact in Waco who arranged to pick

up the sailors once they arrived. Once Ahmed picked the sailors up2 It is unclear fr om the record what the actual questions and

responses were, but it is clear that Ahmed generally denied any

knowledge of the sailors.

3 from the Jack-in-the-Box, he took them to the Sandman Motel in Waco

where he got them two rooms in his name, so that they would have a

place to st ay. The next day, July 15th, Ahmed picked up the

sailors and took them to get something to eat and to Wal-Mart to

get some new clothes. Ahmed then returned the individuals to the

motel and went to work.

Meanwhile, an FBI investigation into the mi s sing sailors

whereabouts led to interviews with both cab drivers Harris and

Adams. The FBI investigation revealed that the Waco telephone

number that had been called was for a Sam’s Convenience Store,

which was owned by Saleem “Sam” Moosa and the Appellant, Ahmed.

The FBI went to the store on July 15th and questioned Ahmed about

the sailors, showing him pictures of the individual s. Ahmed

apparently denied any knowledge of the Pakistani sailors and then

left the store to return to his home. The FBI agents obtained

Ahmed’s home address and went to his house to attempt to continue

questioning. At Ahmed’s house, the FBI once again attempted to

interview Ahmed but he continued to insist that he had no knowledge

of the missing sailors. 2 According to the pre-sentencing report

(“PSR”), the FBI then took Ahmed into custody apparently for

further questioning.

Subsequent to their attempted interviews with Ahmed, the FBI3 The d ate of the Ahmed interviews and the motel raid are

listed in the briefs as July 15th but at the sentencing hearing, it

was asserted that the day of these events was July 16th. However,

neither party disputes that these events occurred on the same day

and in the order listed above, despite this slight discrepancy of

dates.

4 learned, from sources other than Ahmed, that Ahmed had either a

f riend or relative who owned the Sandman Motel. Based on this

information, the FBI went to the motel on July 15th (the same day

a s their attempted interviews with Ahmed) and showed an emplo yee

pictures of the missing sailors. 3 The employee informed the FBI

that similar-looking individuals we re staying in rooms 8 and 9.

Records from the motel showed that the individual who rented the

rooms was Ahmed. The FBI found all four sailors in room 9 and took

them into custody.

Ahmed pled guilty to a one count indictment alleging a

violation of 8 U. S.C. § 1324(a)(1)(A)(iii) and (B)(ii) for

harboring an illegal alien. Following objections by both the

government and Ahmed, the Probation Office produced a revised PSR,

whic h assigned a total offense level of 12 for the offense of

harboring an alien. This total offense level included a two level

reduction for acceptance of responsibility but also a two level

increase for obstruction of justice. The revised PSR also removed

a thr ee level reduction, subsequent to an objection by the

government, that was previously granted based on U.S.S.G.4 This section allows for a three level decrease if the

harbored alien is the defendant’s spouse or child or both. The

definition of a “child” can be found in 8 U.S.C. § 1101(b)(1) and

the term encompasses a variety of possibilities.

5 §2L1.1(b)(1). 4

At sentencing, the government withdrew its earlier objection

to the three level decrease in base level under § 2L1.1(b)(1). As

the government no longer objected, the district court reduced

Ahmed’s total offense level to 9. Ahmed then reiterated an

objection he had to the PSR’s recommendation that his base level be

increased by two levels for obstruction of justice. The PSR based

this recommendation on Ahmed’s statements to the FBI that he did

not know the sailors. The PSR concluded that these statements were

materially false statements that significantly impeded the

investigation because the agents had to spend more time looking for

the sailors.

At the sentencing hearing, Ahmed’s counsel argued that these

two statements were not significant impediments as the FBI caught

the sailors only a few hours later, and that the FBI already had

the lead about the Sandma n Motel by the time of the second

interview. The government offered no evidence in response as to

why Ahmed’s denials of knowing the sailor s was a significant

impediment. Instead, the government simply argued that they had

thousands of leads as to where the sailors might be and had Ahmed

told the FBI where the sailors were, it would have saved them time.

The district court agreed with the government’s argument, stating:5 Based on this information, Ahmed has presumably se r ved

approximately three months of his six month sentence. However, a

reduction in offense level could also affect the amount of Ahmed’s

fine. See § 5E1.2.

6 The Court would determine that th ere was a significant

impediment to the investigation placed in the way of law

enforcement by the defendant and the argument to the

contrary seems to be that he should be credited for what

turned out to be [an] excellent investigation by the

Federal Bureau of Investigation. I don’t think that

would be appropriate. I’ll overrule that objection.

Apparently, the district court reached this conclusion based solely

on the brief arguments presented before it at sentencing. After

overruling the objection, the district court sentenced Ahmed based

on a total offense level of 9, with a guideline range of four to

ten months. On November 25, 2002, the district court sentenced

Ahmed to six months incarceration, three years supervised release,

a $100.00 mandatory special assessment fee, and a $1,000.00 fine.

On December 11, 2002, the district court denied a motion by Ahmed

to stay his sentence of imprisonment pending his appeal

. 5 Ahmed

now appeals his sentence and the district court’s application of

the obstruction of justice enhancement.

DISCUSSION

Did the district court clearly err by imposing a two level upward

adjustment for obstruction of justice under U.S.S.G. § 3C1.1?

Ahmed asse rts that the district court erred in applying the

sentence enhancement for obstruction of justice under U.S.S.G. §

3C1.1. We review a district court’s application of the Sentencing7

Guidelines to the facts for clear error. United States v. Smith

,

203 F.3d 884, 891 (5th Cir. 2000). Section 3C1.1 of the Sentencing

Guidelines provides that “[i]f...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 convic tion,...increase the

offense level by 2 levels.” U.S.S.G. § 3C1.1. The district court

app lied §3C1.1 based on Application Note 4(g) which states that

“provid ing a materially false information to a law enforcement

officer that si g nificantly obstructed or impeded the official

investigation or prosecution of the instant offense” is a basis for

the increase. § 3C1.1, cmt. n.4(g). Ahmed claims that his mere

denials of knowing the sailors did not amount to a significant

impediment.

At the outset of our analysis, the Court notes that Ahmed’s

denials of knowing the sailors could possibly qualify under

Application Note 2 of § 3C1.1 which states that “[a] defendant’s

denial of guilt (other than a denial of guilt under oath that

constitutes perjury) . . . is not a basis for application of this

provision.” In United States v. Surasky , this Court found that a

defendant’s false statements that he had nothing to do with a

prison escape attempt, when viewed in the light most favorable to

him, were nothing more than denials of guilt. 976 F.2d 242, 244-45

(5th Cir. 1992). However, in United States v. Smith , this Court8

refused to extend the exception to a defendant when her statements

“went far beyond merely denying her own involvement or refusing to

provide information , which would not qualify for the obstruction

enhancement.” 203 F.3d 884, 891 (5th Cir. 2000); b ut see United

States v. Barnett

, 939 F.2d 405, 407 (7th Cir. 1991) (finding that

a defendant’s false statements, not made under oath, that she had

invested money rather than frau dulently kept it for herself was

nothing more than a denial of guilt). Had the FBI actually asked

Ahmed where the missing sailors were, the statement would have

fallen sq uarely in this category, but Ahmed foreclosed them from

asking such a question by denying even knowing the sailors. Ahmed

argues in his brief that his statements really amounted to nothing

more than remaining silent in that the information relayed had the

same effect. Whether Ahmed’s statements were mere denials of guilt

or whether they went beyond merely denying his own involvement is

difficult to determine . However, as we find that Ahmed’s

statements did not significantly impede the investigation we need

not delve any deeper into this issue.

Under Application Note 5(b ), the sentence enhancement under

§3C1.1 shall not apply for “making false statements, not under

oat h, to law enforcement officers, unless Application Note 3(g)

above applies.” Therefore, not all false statements to law

enforcement officers automatically incur the sentence enhancement.

United States v. Phillips

, 210 F.3d 345, 349 (5th Cir. 2000) (“The9

application notes to § 3C1.1 make clear that not all false

statements to law enforcement justify the enhancement.”). In the

present case, only mat erial statements that s ignificantly impede

the investigation shall qualify. § 3C1.1, cmt. n.4(g).

Application Note 6 defines a material statement as a statement

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

u nder determination.” § 3C1.1, cmt. n.6. As this Court noted in

Surasky

, it is hard to imagine a scenario where an immaterial

statement could obstruct justice and conversely, “an y statement

that significantly obstructs or impeded an investigation is likely

to always, or almost always, be material.” 976 F.2d at 246, n.5.

This does not mean, however, that all material statements

signi ficantly impede an investigation. In the present case,

Ahmed’s statements, if believed, could have influenced the

investigation in that the officers would have left Ahmed alone and

quit looking into his contacts. We, therefore, conclude that

Ahmed’s statements meet the low threshold of materiality.

However, we do not agree with the district court that Ahmed’s

statements significantly impeded the investigation. In the past,

this Circuit has found that statements which lead officers on a

misdirected investigation do qualify as significant impediments.

United States v. Phipps

, 2003 WL 123841, *11 (5th Cir. 2003)

(finding that defendants’ statements which misidentified an

accomplice significantly impeded the investigation so as to warrant10

the enhancement); Smith , 203 F.3d at 891 (finding the enhancement

appropria te because the defendant’s “statement went far beyond

merely denying her own involvement or refusing to provide

information, which would not qualify for the obstruction

enhancement; she specifically sent the FBI investigators on the

trail of unknown suspects, whom she specifically described in order

to obstruct the investigation into her own and her co-conspirators’

involvement”); United States v. Rickett , 89 F.3d 224, 226-27 (5th

Cir.1996) (finding that an obstruction enhancement was appropriate

when a defendant gave officers a false identification at the time

of his arrest which led them to arrest an innocent third party and

forced them to file a superse ding indictment against the

defendant). Conversely, courts have held that statements which do

not cause investigators to expend any additional resources on their

investigation are not the type of statements which s ignificantly

impede the investigation. Surasky , 976 F.2d at 247 (finding that

even if the Court were to hold that the defendant’s statements were

more than mere denials of guilt, they still did not significantly

impede the investigation into a prison escape attempt because a coconspirator had already confessed to the defendant’s involv ement

and o ther evidence also already pointed to the defendant’s

involvement); United States v. Griffin

, 310 F.3d 1017, 1022-23 (7th

Cir. 2002) (holding that because there was no evidence that the

defendant’s statement impeded the official investigation, the11

statement alone could not support the obstruction enhancement);

Barnett

, 939 F.2d at 407 (finding that because a defendant’s false

statements did not cause investig ators to expend additional

resources, the obstr uction of justice enhancement should not be

imposed under Note 3(g) and also was excluded by the “denial of

guilt” exception); see also Phillips

, 210 F.3d at 349 (finding that

a defendant’s false statement to officers that he did not know who

owned a station wagon or the drugs it contained did not qualify for

an obstruction of justice enhancement because the statement did not

lead the officers on a misdirected investigation or impede the

investigation). Also, as the Seventh Circuit has recently noted,

the language of Application N ote 4(g) “requires a causal

relationship between the materially f alse statement given and a

resulting impediment upon the investigation or prosecution.”

Griffin

, 310 F.3d at 1023. In the present case, there is

absolutely no evidence that Ahmed’s statements caused the FBI

agents to go on a “wild goose chase,” or in any other w ay misled

the agents in the sort of manner that has traditionally been the

basis for enhancement. Rather, the FBI had to go forward with

their investigation as they normally would, i.e. continue searching

for and tracking down possible leads as to the sailors whereabouts.

The government argues only that the district court was

correct, but at the sentencing hearing, the governm ent justified

the enhancement because “[h ]ad Mr. Ahmed cooperated in the6 We additionally note that Ahmed received a downward departure

for his acceptanc e of responsibility under §3E1.1, which the

government has never objected to. Application Note 4 of § 3E1.1

states, “Conduct resulting in an enhancement under § 3C1.1

12 beginning, [the FBI] would not have had to track down all the rest

of the leads that they did have to go to.” This justification is

flawed for two reas ons. First, the FBI agents never asked Ahmed

where the sailors were, only if he knew them. Though it is true

that the question they ask ed was probably preliminary to them

asking where the sailors were, it is hard to conceive how Ahmed’s

statement that he didn’t know the sailors could have created an

additional impediment to the investigation. Even if the FBI agents

had asked Ahmed if he knew where the sailors were located, as we

have already state d, a negative response to this question would

have qualified as a denial of guilt. The second flaw in the

government’s argument is that it seeks to punish Ahmed not for

impeding the investigation, but for not aiding in the

investigation. Under U.S.S.G. § 5K1.1, a defendant may receive a

downward depart ure in his sentencing for providing substantial

assistance to a u thorities, but this provision does not

axiomatically require a sentence enhancement for failing to assist

the authorities. Indeed, under § 5K1.2 “[a] defendant’s refusal to

assist authorities in the investigation of other persons may not be

considered as an aggravating sentencing factor.” U.S.S.G. § 5K1.2

(emphasis added). We therefore hold that the district court erred

in applying the sentence enhancement under § 3C1.1. 6(Obstructing or Impeding the Administration of Justice) ordinarily

indicates that the defendant has not a ccepted responsibility for

his criminal conduct. There may, however, be extraordinary cases

in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.”

U.S.S.G. § 3E1.1, cmt. n. 4. The government has never attempted to

demonstrate why this is an extraordinary case, and, it is this

Court’s belief that it is not.

13 “[W]hen an appellate court finds that the Guidelines have been

incorrectly applied, ‘a remand is appropriate unless the reviewing

court concludes, on the record as a whole, that the error was

harmless, i.e., that the error did not affect the district court's

selection of the sentence imp osed.’” S urasky

, 976 F.2d at 247

(quoting Williams v. United States

, 503 U.S. 193, 203 (1992)).

“Such error is harmless only if it did not affect the selection of

the sentence imposed.” U nited States v. Reyes-Maya

, 305 F.3d 362,

368 (5th Cir. 2002). Ahmed’s range of imprisonment under Offense

level 9 was 4-10 months. Under level 7, his range of imprisonment

would be 0-6 months. While it is true that the sentence Ahmed

received, 6 months, falls within both levels’ ranges, it falls at

the low end o f level 9 but is the maximum recommended sentence

under level 7. Also, the district court stated that in sentencing

Ahmed, it would consider the fact that this was aberrant behavior

for Ahmed when selecting a sentence within the g uideline range.

We, therefore, hold that the district court’s error in applying the

sentence enhancement under § 3C1.1 was not harmless.

CONCLUSION

Having carefully reviewed the record of this case and the14

parties’ respective briefing and for the reasons set forth above,

we conclude that the district court clearly erred by enhancing

Ahmed’s offense level for obstruction of justice. We accordingly

VACATE Ahmed’s sentence and REMAND for re-sentencing.

VACATED AND REMANDED.