* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 19 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 00-5099

v. (N.D. Oklahoma) JESUS FERNANDO MIRANDA,

Defendant-Appellant. (D.C. No. 99-CR-89-C)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for decis ion on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore subm itted without oral argument. On September 29, 1999, Mr. Miranda pleaded guilty t o one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and-2-

(b)(1)(B). During the hearing, Mr. Miranda explain ed to the district court his involvement in the cocaine conspiracy. On May 8, 2 000, Mr. Miranda testified at the sentencing hearing of his codefendant, Luis Bae za. At that time, Mr. Miranda recanted his prior testimony from September 29, 199 9, as it pertained to Mr. Baeza and denied any involvement with him. Mr. Mir anda testified that his source of supply for cocaine was an individual name d “Frank.” Mr. Miranda was also unable to recall several of his earlier statem ents as recorded in law enforcement reports. In addition, Mr. Miranda’s presentence report indic ated that Mr. Miranda was involved in an attempt to solicit the murder of two people associated with his drug dealing activities. The report recommended th at this conduct supported an upward adjustment for obstruction of justice. Mr. Miranda objected to this provision. In sentencing Mr. Miranda to 110 months’ imprisonme nt, the district court applied the two-level enhancement pursuant to USSG § 3C1.1 for obstruction of justice and refused to apply a downward adjustment for acceptance of responsibility under USSG § 3E1.1. On appeal, Mr. Miranda challenges both the enhancement and the refusal to apply a downward adj ustment for acceptance of responsibility. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.-3- I. DISCUSSION
A. Two-Point Increase for Obstruction of Justice Mr. Miranda contends the district court erred by imposing a two-level enhancement of his sentence for obstruction of just ice pursuant to USSG § 3C1.1 after determining he committed perjury at his and at his codefendant’s sentencing hearing. At his sentencing hearing, Mr. Miranda de nied any involvement regarding the solicitation of the murders of two pe ople associated with the conspiracy. An agent and a confidential informant provided testimony to this effect. In response to Mr. Miranda’s objection to the presentence report which cited this testimony in support of an enhancement f or obstruction of justice, the district court stated that it was “satisfied from the testimony that has been presented through the agents and through the confid ential informant . . . that the obstruction of justice as explained in the presente nce report is appropriate and proper.” Aplt’s App. at 183. Based on this eviden ce and after considering Mr. Miranda’s recantation at Mr. Baeza’s sentencing hearing, the district court determined that Mr. Miranda’s testimony was false. We review for clear error the district court’s fact ual findings supporting the application of a particular sentencing guidelines p rovision and its legal conclusions de novo. See United States v. Shumway , 112 F.3d 1413, 1426 (10th Cir. 1997).-4-

The sentencing guidelines mandate a two-point upwar d adjustment if a defendant “willfully obstructed or impeded, or atte mpted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense.” United States v. Chavez , 229 F.3d 929, 955 (10th Cir. 2000) (quoting USSG § 3C1.1). Obstructi on of justice includes committing perjury. See USSG § 3C1.1, cmt. n.4(b); United States v. Hargus , 128 F.3d 1358, 1365 (10th Cir. 1997). “To establis h a defendant’s perjury, the court must find that he (1) when testifying under o ath, gives false testimony; (2) concerning a material matter; (3) with willful inte nt to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Copus , 110 F.3d 1529, 1536 (10th Cir. 1997) (internal qu otation marks and citation omitted). First, Mr. Miranda challenges the nature of the tri al testimony regarding the murder solicitation as double hearsay. We need notaddress this matter because we agree with the district court’s conclusion that Mr. Miranda’s perjury at Mr. Baeza’s sentencing hearing was sufficient to support the enhancement for obstruction of justice. Second, Mr. Miranda contends that, even if his test imony at Mr. Baeza’s sentencing hearing was untruthful, it was not mater ial. We disagree. According to the guidelines, “‘[m]aterial’ evidence, fact, s tatement or information, as used-5-

in this section, means evidence, fact, statement, o r information that, if believed, would tend to influence or affect the issue under d etermination.” USSG § 3C1.1, cmt. n.6; see also United States v. Bernaugh , 969 F.2d 858, 860 (10th Cir. 1992) (applying obstruction enhancement where defendant “ had provided materially false information at his guilty plea hearing with r espect to the roles of his codefendants”). In deciding to impose the two-point increase for o bstruction of justice, the district court stated: As far as the Court is concerned, as far as the obs truction of justice is concerned, you don’t even have to rely upon the rel iable testimony of the threats of murder. The false testimony given i s an obstruction of justice in and of itself, and the Court finds in bo th instances that it is sufficient to support the presentence report. I th erefore overrule the objection, and I accept the presentence report as i t is presented to the Court. Aplt’s App. at 190. Here, as in Bernaugh , Mr. Miranda’s “perjury with respect to the actors associated with him in the transaction e asily could be an attempt to affect his own sentencing, by impairing the court’s inquiry under Fed. R. Crim. P. 11(f), obfuscating his role in the transaction, and otherwise.” Bernaugh , 969 F.2d at 862. Thus, we conclude the district court did n ot err by imposing the two-level USSG § 3C1.1 enhancement for perjury.

B. Acceptance of Responsibility-6-

“We review the ‘acceptance of responsibility’ determination as a question of fact under the clearly erroneous standard. As s uch, the trial court’s determination of whether a defendant has accepted r esponsibility is subject to great deference on review and should not be disturb ed unless it is without foundation. However, while we must give due defere nce to the district court’s application of the guidelines to the facts, we revi ew the application of the guidelines fully for errors of law. Pure questions of interpretation of the sentencing guidelines, which are closely analogous to questions of statutory interpretation, are questions of law. We review questions of law de novo.” United
States v. Amos , 984 F.2d 1067, 1071-72 (10th Cir. 1993) (internal quotation marks and citations omitted). Section 3E1.1 of the Sentencing Guidelines states: “If the defendant clearly demonstrates acceptance of responsibility f or his offense, decrease the offense level by 2 levels.” USSG § 3E1.1(a). The commentary to that section provides that an obstruction of justice enhancementpursuant to § 3C1.1 “ordinarily indicates that the defendant has not ac cepted responsibility for his criminal conduct,” but adds that “there may . . . b e extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply .” USSG § 3E1.1, application note 4. The question before us is whether the district court erred in-7-

determining that this is not one of those extraordi nary cases. We believe that it did not. When a court determines whether a defendant is elig ible for a downward adjustment for acceptance of responsibility, the ap plication notes to the Guidelines consider: truthfully admitting the conduct comprising the off ense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendantis accountable under § 1B1.3 (Relevant Conduct). Note that a defen dant is not required to volunteer, or affirmatively admit, relevant cond uct beyond the offense of conviction in order to obtain a reductio n under [§ 3E1.1(a) ]. A defendant may remain silent in respect to relevant c onduct beyond the offense of conviction without affecting his abi lity to obtain a reduction under this subsection. However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsi stent with acceptance of responsibility. USSG § 3E1.1, application note 1(a). Relevant cond uct includes “in the case of a jointly undertaken criminal activity ( . . . whether or not charged as a conspiracy), all reasonably foreseeable acts and om issions of others in furtherance of the jointly undertaken criminal activity.” USSG § 1B1.3(a)(1)(B). Here, Mr. Miranda lied about his co-defendant’s inv olvement in the conspiracy. Moreover, Mr. Miranda’s lie about the involvement of Mr. Baeza hindered investigators from “determining all acts c ommitted in furtherance of the jointly undertaken criminal activity.” United States v. Patron-Montano , 223 F.3d 1184, 1190 (10th Cir. 2000); see also United States v. Murray , 65 F.3d 1161,-8-

1165-66 (4th Cir. 1995) (holding that a defendant w ho denied involvement of co-defendant during co-defendant’s trial had intent ionally misled law enforcement officers and should not receive a downward adjustme nt for acceptance of responsibility). Thus, Mr. Miranda’s perjury const ituted the false denial of relevant conduct. This court recently stated in Patron-Montano : Although it would be error for a district court to categ orically deny the § 3E1.1 decrease simply because a defendant lied ab out relevant conduct, the court can properly consider a defendant’s lie about relevant conduct in evaluating the defendant’s eligibility f or a § 3E1.1 decrease. When a sentencing court concludes that a defendant lied about relevant conduct, the court could, in an exceptional case, s till give a reduction for acceptance of responsibility.
Patron-Montano , 223 F.3d at 1191. Here, there is no evidence dem onstrating that this is an extraordinary case in which a reduction of responsibility is merited despite the defendant’s lie about relevant conduct. It is Mr. Miranda’s burden to prove that he is entitled to a decrease for accepta nce of responsibility under § 3E1.1, see United States v. Nelson , 54 F.3d 1540, 1544 (10th Cir. 1995), and he has failed to meet that burden. Thus, the districtcourt properly denied the § 3E1.1 decrease.

II. CONCLUSION-9-

For the reasons stated above we conclude the distri ct court did not err by imposing the two-level USSG § 3C1.1 enhancement forperjury, and we affirm the district court’s denial of the downward adjustment for acceptance of responsibility.

Entered for the Court,

Robert H. Henry Circuit Judge