*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this opinion should not be published and is not precedent except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. 98-40512

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR MANUEL VICUNA-VILLEGAS,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. M-97-CR-311-1

_________________________________________________________________

October 22, 1998

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Victor Manuel Vicuna-Villegas has appealed the district

court’s enhancement of his sentence on grounds of obstruction of

justice, pursuant to U.S.S.G. § 3C1.1. The district court based

its ruling on Vicuna’s failure to reveal to the probation officer

his prior conviction, under a fictitious name, of having illegally

entered the United States; Vicuna is appealing his sentence for

illegal reentry after deportation upon a conviction of an

aggravated felony.
2

Vicuna contends that the enhancement was improper because he

did not actually obstruct or impede the probation officer’s

preparation of his presentence report (PSR). Section 3C1.1

provides, however, that the enhancement is required if the

defendant attempted to obstruct or impede.

“[C]oncealing . . . evidence that is material to an official

investigation or judicial proceeding”; and “providing materially

false information to a probation officer in respect to a

presentence or other investigation for the court” are grounds for

the enhancement. U.S.S.G. § 3C1.1, comment.(n.3(d),(h)).

Evidence, a fact, a statement, or information is “material” if it

“would tend to influence or affect the issue under determination,”

if it were believed. U.S.S.G. § 3C1.1, comment.(n.5). This shows

the lack of merit of Vicuna’s contention that because the

government already was in possession of accurate information, his

concealment of his prison conviction was not “material” because it

did not influence the probation officer.

Quoting from § 3C1.1, comment.(n.4(c)), Vicuna asserts that

the enhancement is improper because “a defendant’s providing to a

probation officer `incomplete or misleading information, not

amounting to a material falsehood,’ . . . ordinarily does not call

for the . . . enhancement.” He argues that the evidence did not

show that he had the specific intent to obstruct or impede justice.

Vicuna also argues that the record does not show whether his

failure to volunteer this information was deliberate or whether it
3

was due to faulty memory or some other innocent cause.

When the court asked Vicuna if he wanted to say something

about his prior conviction for illegal entry, he replied, “That I’m

very, very sorry because I lied.” A fair interpretation of this

statement is either that he answered “no” when the probation

officer asked if he had any more prior convictions, or that he

knowingly withheld from her any information concerning the

Hernandez-Garcia conviction.

By using this alias, Vicuna managed to be charged only with

the relatively minor § 1325 offense of illegal entry. The final

judgment in that case shows that he was prosecuted solely as

“Enrique Hernandez-Garcia” and he receive only a 90-day suspended

sentence, without probation supervision. By the time that the

authorities learned, via a fingerprint check, that the defendant

actually was Vicuna, he had been deported.

If the United States Attorney had known that “HernandezGarcia” had been deported previously as a result of having been

convicted of an aggravated felony, Vicuna would have been charged

with illegal reentry as in the case sub judice. Thus, the district

court’s finding that its knowledge of Vicuna’s prior record would

affect his sentencing is not clearly erroneous. Accordingly, there

is no merit to Vicuna’s contention that his false statement (or

concealment of material facts) is not related to his conviction of

illegal reentry under § 1326(a) & (b)(2).

Moreover, this court has specifically upheld the obstruction
4

enhancement of defendants for their failure to disclose criminal

history information to the probation officer. See United States v.

Tello, 9 F.3d 1119, 1122-23 (5th Cir. 1993) (failure to disclose a

prior misdemeanor drug conviction and juvenile criminal history);

United States v. Paden, 908 F.2d 1229, 1236 (5th Cir. 1990)

(enhancement partly based on defendant’s concession that he

“withheld a portion of his criminal history”).

JUDGMENT AFFIRMED.