*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-41119

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE JESUS LOPEZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas 

(M-97-CR-58-1)

_________________________________________________________________

February 23, 1999

Before KING, Chief Judge, REAVLEY and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jose Lopez pled guilty to conspiracy to possess with the

intent to distribute marijuana and was sentenced to sixty months’

imprisonment. Lopez appeals, arguing that the district court

erred in enhancing his sentence for obstruction of justice and in

refusing to depart from the statutory minimum. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 31, 1997, the United States Customs Service

discovered marijuana concealed in the interior walls of a tractor
2

trailer at a port of entry from Mexico. The agents did not

remove the marijuana, and they followed the tractor trailer as

Neri Garcia drove it to Jose Lopez’s residence in Mission, Texas

on February 3, 1997. Lopez’s wife, Sara Lopez-Peregrina (Sara

Lopez), drove Garcia to his residence while the trailer remained

at Lopez’s residence.

On February 4, 1997, agents observed Lopez and Sara Lopez’s

brother, Gilberto Peregrina, work on the air conditioning unit of

the trailer for several hours. Upon completion, Peregrina

boarded the trailer and agents heard him dismantling the

trailer’s inner walls. Lopez claims that he returned to the

house and asked his wife to take a glass of water to Peregrina in

the trailer. The agents claim that Lopez was in the vicinity of

the trailer when Sara Lopez approached it, and they observed Sara

Lopez board the trailer and place packages of marijuana in large

plastic bags. The agents state that, after inspecting the

trailer, Lopez entered his residence, followed by Sara Lopez and,

shortly thereafter, Peregrina.

Lopez consented to the agents’ search of his property, which

revealed 159 kilograms of marijuana on the floor of the trailer

and another 167 kilograms still hidden in the trailer’s interior

walls. Lopez, Sara Lopez, and Peregrina were taken into custody. 

In post-arrest statements, Jose and Sara Lopez indicated that

Garcia had agreed to pay them to remove and store the marijuana. 

Peregrina told agents that he had been recruited by Lopez.
 

1 Lopez was arrested on February 4, 1997. Government agents

following the trailer reported that the trailer was driven to

Lopez’s residence on February 3, 1997 and that the refrigeration

unit was repaired on February 4, 1997. Although Lopez offered

inconsistent testimony as to the chronology of these events (and

3

On April 7, 1997, Lopez agreed to plead guilty to conspiracy

to possess with the intent to distribute more than 100 kilograms

but less than 1000 kilograms of marijuana. Lopez also provided

substantial assistance to the government and agreed to testify

against Garcia. The government agreed to recommend at sentencing

that Lopez was a minor participant, that he should receive

maximum credit for acceptance of responsibility, and that he

should receive a sentence at the low end of the applicable

guideline. 

During Lopez’s rearraignment hearing before Judge Hinojosa

the following day, the government stated that Sara Lopez assisted

in the dismantling and removal of marijuana from the false

compartment in the trailer. Lopez responded that Sara Lopez was

not included in the criminal enterprise and that she had only

taken water to the trailer. The district court told Lopez that

it “suspect[s] the other co-defendants are going to testify

differently, so you had better . . . tell the truth” in future

testimony or the court would deny any motion to depart at

sentencing.

Lopez testified at Sara Lopez’s jury trial, also before

Judge Hinojosa, on May 9, 1997. Lopez stated that Garcia had

brought the trailer to his house and asked him to repair the

trailer’s refrigeration unit two days before Lopez’s arrest.1
his testimony was itself inconsistent), the district court did

not consider this aspect of his testimony in determining that he

committed perjury regarding Sara Lopez’s involvement.

4

Lopez testified that he and Sara Lopez met with Garcia on the

following day and that Garcia told them there was marijuana in

the trailer and offered Lopez $5000 to remove its interior walls. 

Lopez testified that his wife asked him to not accept Garcia’s

offer and that he refused it. Lopez testified that Garcia

visited Lopez on the following day and again requested that he

remove the trailer’s interior panels, and that he again refused. 

Lopez stated that on the following day, he worked on the

refrigeration unit and Garcia repeated his offer. Lopez then

consented to remove the walls.

Lopez testified that Garcia showed him and Peregrina how to

remove the interior walls of the trailer while his wife was

inside the house. Lopez testified that he returned to the house

and asked his wife to take Peregrina some water when Peregrina

was working inside the trailer. Lopez testified that he went

outside to clean the yard and saw Sara Lopez walk to the back of

the trailer, but that he did not know whether she entered the

trailer. Lopez stated that she was gone between twenty and

thirty minutes. Lopez testified that he did not discuss his

agreement to unload the marijuana with his wife. The jury

acquitted Sara Lopez of all drug-related charges.

The Presentence Investigation Report found that the total

offense level under the sentencing guidelines for Lopez’s

conviction is twenty-one, and the probation office recommended a
 

2 Under § 2D1.1(a)(3), the appropriate base offense level

for Lopez’s conviction is twenty-six. The probation office

decreased this level by two because it determined that Lopez had

debriefed with the government and otherwise met the criteria set

forth in § 5C1.2. See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(b)(4)

(1995) (providing for a two-level decrease when defendant meets

criteria set forth in § 5C1.2); U.S. SENTENCING GUIDELINES MANUAL

§ 5C1.2 (1995) (providing that “the court shall impose a sentence

in accordance with the applicable guidelines without regard to

any statutory minimum sentence” if the defendant, inter alia,

“has truthfully provided to the Government all information and

evidence the defendant has concerning the offense”). The

probation office also reduced Lopez’s offense level by three

because he accepted responsibility and timely notified

authorities of his intention to plead guilty. See U.S. SENTENCING

GUIDELINES MANUAL § 3E1.1 (1995). The applicable guideline

imprisonment range for a defendant with a total offense level of

twenty-one and a criminal history score placing him in category I

is thirty-seven to forty-six months. See U.S. SENTENCING GUIDELINES

MANUAL Ch. 5, Pt. A (1995).

5

sentence of thirty-seven months followed by three years

supervised release.2 The probation office stated that it “ha[d]

no information to suggest that the defendant impeded or

obstructed justice,” and that the defendant had debriefed with

the government and appeared to meet the other requirements set

forth in § 5C1.2 to avoid a statutory minimum sentence. See 21

U.S.C. §§ 841, 846 (providing for a minimum sentence of five

years’ imprisonment followed by four years of supervised

release). The government filed a motion for a downward departure

pursuant to § 5K1.1 based on the substantial assistance provided

by Lopez during his debriefing and his agreement to testify

against his co-conspirators. The government requested that the

court sentence Lopez below the statutorily required minimum

sentence and the authorized guideline range. 
6

At the sentencing hearing on June 2, 1997, the district

court questioned the motion for departure and stated that it had

determined that Lopez lied at his wife’s trial concerning her

involvement in the drug offense. The government asserted that

its motion was based on Lopez’s assistance “in the early stages

of the prosecution.” The district court rejected the

government’s argument, however, and stated that it was

considering enhancing Lopez’s sentence for obstruction of justice

and would not consider a motion to depart without the testimony

of a customs agent assigned to the case. The court asserted that

“[h]e doesn’t live with Sara Lopez and not have a discussion with

her about the marijuana transaction. That’s not real life . . .

that is not the way life is.”

The government stated at a second hearing on June 19, 1997

that Garcia and his wife told the agents that Sara Lopez had

offered to split $5025 with Garcia if he would help them unload

the marijuana. Although the government asserted there was “a

conflict in their two versions of what happened,” it stated its

view that there was not enough evidence to charge Lopez with

perjury. A customs agent, Roy Rivera, testified as follows

regarding Sara Lopez’s knowledge of Lopez’s agreement with

Garcia:

Mr. Rivera: Well, Sara Lopez specifically said [following 

her arrest] that [Garcia] was going to pay her husband

the money and she knew that.

The Court: And when you ques --

Mr. Rivera: And she knew that she -- that her husband was 

going to get this money for them.

The Court: -- and when you questioned her, this was in -- 

they were together or --
7

Mr. Rivera: No sir, they were separate.

The Court: You[] questioned them separately?

Mr. Rivera: And their stories were very identical, other 

than she basically said she had nothing to do with it

and she didn’t do anything at the back of the trailer.

The Court: But that she knew that her husband was getting 

money from Neri Garcia?

Mr. Rivera: Oh, yes, sir.

The Court: And did she indicate to you how she knew that?

Mr. Rivera: No, she didn’t. Other than -- Well, yes, I’m --

she said that she knew this from her husband.

The government stated, and Rivera agreed, that it “believed that

[Lopez] didn’t see what Sara [Lopez] was doing in that trailer. 

I don’t believe he was ever in a position to do that. I think

where he hedged and fudged and didn’t tell the truth was about

Sara’s involvement in the agreement to unload the trailer,” and

that Sara Lopez actively participated with her husband in

agreeing to unload the trailer.

The district court ultimately concluded that Lopez lied in

his testimony regarding his wife’s knowledge of the drug

transaction. On June 30, 1997, the court stated that Lopez and

his wife “participated in it together” and that Lopez “knew that

his wife was involved in it.” The court stated that it did not

“buy the story” that Sara Lopez had only gone to the trailer to

bring Peregrina water. The court further stated that it did not

believe Lopez’s assertion that he was unable to bring Peregrina

water because he had difficulty carrying objects (Lopez has an

amputated leg), noting that Lopez admits he performed yard work. 

The court also found that Lopez’s testimony that his wife was

present when Garcia initially made the offer conflicted with his
 

3 Specifically, Lopez testified on cross-examination as

follows:

Q (prosecutor): And then, there came a time after [talking 

to Garcia about repairing the refrigeration unit] when

you and Sara were present and he offered you $5,000 for

unloading the marijuana from the walls?

A (Lopez): Yes, sir.

Q: Okay. So she knew there was marijuana in the trailer? 

She was present when that took place?

A: She was in the car.

8

statement during cross-examination that his wife was in the car.3

The court determined that Lopez’s testimony was “an attempt to

exculpate her when she was involved in this transaction.”

Lopez argued to the district court that the court should not

believe Garcia’s testimony because Garcia testified against Sara

Lopez “to pay them back” because Lopez significantly contributed

to the government’s case and had committed himself to testify

against Garcia. The government agreed that Lopez had caused

Garcia to change his mind and plead guilty. Nonetheless, the

district court found that Garcia’s testimony of Sara Lopez’s

involvement was consistent with her activities in the trailer,

and the court noted that no agent had reported seeing a glass of

water as Sara Lopez walked to the trailer.

The court found that Lopez committed perjury in his

testimony at his wife’s trial. The court then denied the

government’s motion to depart and enhanced Lopez’s sentence for

obstruction of justice, resulting in a total offense level of

twenty-five and a recommended sentence of fifty-seven to seventyone months. The court found that the Lopez did not qualify under

§ 5C1.2 and that therefore the statutory minimum sentence of
 

4 Lopez also argues on appeal that the district court’s

reliance on a Sixth Circuit case holding that obstruction of

justice during the investigation, prosecution, or sentencing of

the “instant offense” under § 3C1.1 may include false testimony

offered at a co-defendant’s trial “raises retroactivity

questions” because that decision was issued after Lopez was

arrested. See United States v. Walker, 119 F.3d 403, 406-07 (6th

Cir.), cert. denied, 118 S. Ct. 643 (1997). We find no merit in

this argument because other circuit courts had reached the same

conclusion prior to Lopez’s offense. See United States v. Acuna,

9 F.3d 1442, 1446 (9th Cir. 1993) (applying § 3C1.1 where

defendant testified falsely regarding co-conspirator’s conduct at

co-conspirator’s trial); United States v. Bernaugh, 969 F.2d 858,

861 (10th Cir. 1992) (“[T]he section 3C1.1 enhancement applies

where a defendant attempts to obstruct justice in a case closely

related to his own, such as that of a codefendant.”). 

Furthermore, we note that a recent amendment to the sentencing

guidelines clarifies that the “instant offense” includes false

testimony at a co-defendant’s trial. See U.S. SENTENCING GUIDELINES

MANUAL § 3C1.1 & commentary (1998). 

9

sixty months applied. The court sentenced Lopez to sixty months’

imprisonment followed by four years of supervised release. Lopez

timely appeals.

II. DISCUSSION

Lopez argues that the district court erred by enhancing his

sentence for obstruction of justice and refusing to disregard the

statutory minimum sentence under the safety valve provision in 

§ 5C1.2. Lopez asserts that no reliable evidence supports the

district court’s finding that Lopez knew the extent of his wife’s

involvement in the transaction and that its finding that he

committed perjury was therefore clearly erroneous. Lopez further

contends that the district court failed to support the

enhancement with sufficient factual findings on the elements of

obstruction of justice.4 
10

A. Standard of Review

We review the district court’s factual determination that a

defendant obstructed justice under § 3C1.1 for clear error. See

United States v. Gonzalez, 163 F.3d 255, 263 (5th Cir. 1998);

United States v. Powell, 124 F.3d 655, 667 (5th Cir. 1997), cert.

denied, 118 S. Ct. 1082 (1998). We also review the district

court’s refusal to apply the safety valve provision under § 5C1.2

for clear error. See United States v. Torres, 114 F.3d 520, 527

(5th Cir. 1997). “A factual finding is not clearly erroneous as

long as it is plausible in the light of the record read as a

whole.” United States v. Lowder, 148 F.3d 548, 552 (5th Cir.

1998) (quoting United States v. Cluck, 143 F.3d 174, 180 (5th

Cir. 1998)). If the district court’s factual determination is

plausible in light of the entire record, we may not reverse it

even if we are convinced that had we been sitting as the trier of

fact, we would have weighed the evidence differently. See United

States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996). Furthermore,

“[c]redibility determinations in sentencing hearings ‘are

peculiarly within the province of the trier-of-fact.’” United

States v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996) (quoting

United States v. Sarasti, 869 F.2d 805, 807 (5th Cir. 1989)). 

B. Obstruction of Justice

Under § 3C1.1, “[i]f the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration

of justice during the investigation, prosecution, or sentencing

of the instant offense,” the offense level is increased by two
11

levels. The commentary to § 3C1.1 specifically provides that

“committing, suborning, or attempting to suborn perjury” is

conduct to which this enhancement applies. A witness testifying

under oath or affirmation commits perjury if he or she “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.” See United States v.

Dunnigan, 507 U.S. 87, 94 (1993). “If a district court finds

that a defendant has committed perjury at trial, an enhancement

is required under section 3C1.1.” United States v. Storm, 36

F.3d 1289, 1295 (5th Cir. 1994).

We have carefully reviewed the record and cannot say that

the district court’s determination that Lopez committed perjury

at his wife’s trial was clearly erroneous. The district court

had the benefit of hearing Lopez’s original testimony in his

wife’s trial and the contradictory testimony of other witnesses,

including Garcia. Furthermore, the district court held several

sentencing hearings and sought the testimony of a customs agent

assigned to Lopez’s case to determine whether he lied about his

wife’s role in the criminal enterprise. The court determined

that Lopez’s testimony was inconsistent with the customs agents’

observations of Sara Lopez’s activities in the trailer. The

court found Lopez’s description of his wife’s role implausible

considering their relationship, the failure of any agents to see

the water Lopez claimed she carried, and Lopez’s apparent ability

to perform yard work and other tasks. Furthermore, the district
12

court was firmly convinced that Lopez intentionally (and

successfully) lied about his wife’s knowledge and role in the

transaction. See United States v. Garcia, 902 F.2d 324, 326 (5th

Cir. 1990) (affirming obstruction of justice enhancement where,

“[a]lthough the evidence concerning [the defendant’s] statements

about the prior arrest is conflicting, the record clearly

indicates that the trial judge was firmly convinced [that he]

intentionally lied about the arrest”). We therefore determine

that the district court’s finding that Lopez committed perjury at

his wife’s trial is plausible in light of the record.

Lopez argues that the district court did not include

specific factual findings or language indicating that the proper

factual predicates were established in support of its finding

that he committed perjury at his wife’s trial. See Dunnigan, 507

U.S. at 95 (“[I]f a defendant objects to a sentence enhancement

resulting from her trial testimony, a district court must review

the evidence and make independent findings necessary to establish

a willful impediment to, or obstruction of, justice . . . under

the perjury definition we have set out.”). We find no merit to

this argument. Although the Supreme Court has stated that “it is

preferable for a district court to address each element of the

alleged perjury in a separate and clear finding,” the Court

recognized that a finding of obstruction that “encompasses all of

the factual predicates for a finding of perjury” is sufficient. 

Id. at 95; see also United States v. Como, 53 F.3d 87, 89 (5th

Cir. 1995) (“A separate and clear finding on each element of the
13

alleged perjury, although preferable, is not required.”). The

district court considered the evidence and determined that Lopez

intentionally provided false testimony regarding his wife’s

involvement in the criminal enterprise, thus encompassing the

necessary factual predicates for its finding of perjury.

C. The Safety Valve Provision

Section 5C1.2 provides that a court “shall impose a sentence

in accordance with the applicable guidelines without regard to

any statutory minimum sentence” for certain offenses if the

defendant, inter alia, “truthfully provide[s] to the Government

all information and evidence the defendant has concerning the

offense or offenses that were part of the same course of conduct

or of a common scheme or plan.” U.S. SENTENCING GUIDELINES MANUAL

§ 5C1.2 (1995). Lopez argues that he qualified under the safety

valve provision and that the district court erred in refusing to

depart from the statutory minimum sentence of sixty months’

imprisonment.

The district court determined that Lopez did not truthfully

provide all information he had concerning the criminal enterprise

because he consistently minimized his wife’s role and lied about

her activities. Because we have already found that the district

court’s determination that Lopez lied about his wife’s

involvement is plausible in light of the record, we must

similarly conclude that the district court did not clearly err by

refusing to depart from the statutory minimum sentence under

§ 5C1.2.
14

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment and

sentence of the district court.