United States Court of Appeals

for the Fifth Circuit ____________

No. 22-50798

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Ramon Umberto Cortez-Rodriguez, 

Defendant—Appellant, 

consolidated with

_____________

No. 22-50801

_____________

United States of America,

Plaintiff—Appellee, 

versus

Ramon Humberto Cortez-Rodriguez,

Defendant—Appellant. 

United States Court of Appeals

Fifth Circuit

FILED

November 14, 2023

Lyle W. Cayce

Clerk

Case: 22-50798 Document: 00516966838 Page: 1 Date Filed: 11/14/2023
2

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC Nos. 4:18-CR-910-1, 4:22-CR-90-1

______________________________

Before Higginbotham, Stewart, and Southwick, Circuit 

Judges.

Per Curiam:*

Ramon Humberto Cortez-Rodriguez appeals the 96-month sentence 

he received following his guilty plea conviction for illegal reentry. Although 

he also appealed the revocation of his supervised release and the consecutive 

14-month sentence imposed following revocation, he has abandoned any 

challenge to his revocation or revocation sentence by failing to brief it. See 

United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996); Beasley 

v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986). 

Cortez-Rodriguez argues that the district court’s application of a twolevel sentencing enhancement for obstruction of justice pursuant to U.S.S.G. 

§ 3C1.1 was error because the district court failed to make the requisite 

findings to support its application. He asserts that the Presentence Report’s 

(PSR) finding that his testimony was untruthful and intended to mislead the 

jury was conclusional, that it did not identify any specific perjured testimony, 

and that the jury’s guilty verdict does not automatically equate to a finding of 

perjury. Cortez further complains that the district court’s general finding 

that he testified untruthfully was insufficient to encompass the necessary 

findings underlying a perjury determination as the court never specifically 

found that he willfully lied about a material matter, and he urges that it is not 

obvious from the record what the court believed he had lied about.

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-50798 Document: 00516966838 Page: 2 Date Filed: 11/14/2023
22-50798

c/w No. 22-50801

3

We assume without deciding that Cortez-Rodriguez’s objection to the 

obstruction enhancement was sufficient to preserve his appellate arguments 

and thus that the district court’s finding of obstruction is reviewed for clear 

error. United States v. Mora-Carrillo, 80 F.4th 712, 716 (5th Cir. 2023); 

United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020). “Where, as 

here, the finding hinges on the credibility of a witness, the district court’s 

determination is given particular deference.” Mora-Carrillo, 80 F.4th at 716 

(internal quotation marks and citation omitted).

Although the district court did not make a specific finding of 

willfulness, it adopted the PSR, which made such a finding. See MoraCarrillo, 80 F.4th at 717; see also United States v. Perez-Solis, 709 F.3d 453, 

470 (5th Cir. 2013); United States v. Miller, 607 F.3d 144, 152 (5th Cir. 2010). 

Additionally, the materiality of Cortez-Rodriguez’s untruthful testimony is 

obvious from the record. See Mora-Carrillo, 80 F.4th at 717. The district 

court disbelieved his testimony that he returned to the United States because 

he feared for his life in Mexico after his brother had been killed in 2008 and 

he had been stabbed in 2016 and that he did not tell arresting officers about 

his fear at the time of his arrest because he had told immigration officials 

about his fear at the time of his 2018 apprehension and those officials did 

nothing. His testimony that he previously told immigration officials about 

his fear and that the officials failed to act was refuted by the records and 

testimony the Government provided in rebuttal, which showed that he told 

immigration officials in 2018 that he had no fear of returning to Mexico and 

that he entered the United States to find work. Cortez-Rodriguez’s 

untruthful testimony was material, as it was designed to establish or bolster 

a duress defense and to show his lack of intent to enter the United States 

illegally. See United States v. Cabral-Castillo, 35 F.3d 182, 187 (5th Cir. 1994); 

see also Perez-Solis, 709 F.3d at 470. Accordingly, the district court’s 

obstruction finding encompassed the requisite factual predicates for a finding 

Case: 22-50798 Document: 00516966838 Page: 3 Date Filed: 11/14/2023
22-50798

c/w No. 22-50801

4

of perjury, and the enhancement will be upheld. See United States 

v. Dunnigan, 507 U.S. 87, 95 (1993); Mora-Carrillo, 80 F.4th at 717.

Cortez-Rodriguez also challenges the constitutionality of 8 U.S.C. 

§ 1326(b) in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). As he

concedes, that argument is foreclosed by Almendarez-Torres v. United States, 

523 U.S. 224 (1998). See United States v. Pervis, 937 F.3d 546, 553-54 (5th 

Cir. 2019). 

AFFIRMED. 

Case: 22-50798 Document: 00516966838 Page: 4 Date Filed: 11/14/2023