* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10657

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RAFAEL FLORES-BOTELLO, 

aka Manuel Botello-Dominguez,

Defendant-Appellant.

Appeal from the United States District Court

For the Northern District of Texas

(1:95-CR-00003)

December 27, 1996

Before JOLLY, JONES and PARKER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant, Rafael Flores-Botello (“Flores-Botello”)

appeals his sentence. We affirm.

FACTS AND PROCEEDINGS BELOW

Flores-Botello pleaded guilty to illegal reentry into the
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United States following deportation in violation of 8 U.S.C. §

1326. His presentence report (PSR) recommended that a two-level

increase in Flores-Botello’s offense level be imposed for

obstruction of justice pursuant to U.S.S.G. § 3C1.1. The

recommendation was based on the fact that at the time of his

arrest, Flores-Botello gave two different aliases and produced a

Texas birth certificate and Social Security card issued to “Jose

Guillermo Hernandez.” Officials ascertained his true identity the

next day. At sentencing, Flores-Botello objected to the upward

adjustment for obstruction of justice, but the district court

overruled the objection and adopted the PSR in its entirety. Based

on a total offense level of ten and a Criminal History Category of

III, the applicable guideline range for imprisonment was ten to

sixteen months. The district court sentenced Flores-Botello to

fourteen months imprisonment, a one-year term of supervised

release, and a $50 special assessment. 

DISCUSSION

Flores-Botello contends that the district court’s two-level

enhancement of his sentence for obstruction of justice pursuant to

§ 3C1.1 was improper. Specifically, he complains that the district

court failed to make the specific fact findings required to support

the conclusion that he obstructed justice subsequent to his arrest.

This court reviews a district court’s finding that a defendant

has obstructed justice under § 3C1.1 for clear error. United States

v. McDonald, 964 F.2d 390, 392 (5th Cir. 1992). Section 3C1.1

provides for the two-level enhancement of a defendant’s offense

level “[i]f the defendant willfully obstructed or impeded, or
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attempted to obstruct or impede, the administration of justice

during the investigation, prosecution, or sentencing of the instant

offense[.]” The Commentary to the Guidelines provides that the §

3C1.1 enhancement applies, for example, if the defendant

“produc[es] or attempt[s] to produce a false, altered, or

counterfeit document or record during an official investigation or

judicial proceeding.” § 3C1.1, comment. (n.3(c)). However,

providing a false name or identification document at arrest does

not warrant the enhancement unless the conduct significantly

obstructed or hindered the investigation or prosecution of the

instant offense. Id., comment, (n.4(a)). 

In this case, the district court, by adopting the PSR, relied

on Application Note 3(c) in concluding that Flores-Botello had

“impeded and obstructed justice in the investigation of this case”

by giving Border Patrol agents two different aliases and producing

a fraudulent birth certificate and fraudulent Social Security card.

However, Flores-Botello’s use of false names and identification

documents at the time of his arrest comes under Application Note

4(a), which requires a showing of significant hindrance. In United

States v. Rickett, 89 F.3d 224 (5th Cir. 1996), the PSR found that

the defendant’s decision to provide a false identification document

at the time of his arrest resulted in the arrest of an innocent

individual and required the Government to file a superseding

indictment to correct the original indictment which listed the
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defendant under an alias. This court concluded that, under these

facts, the defendant’s actions had clearly resulted in a

significant hindrance and the district court’s failure to make a

specific finding as to this issue, although error, was harmless.

Id. at 227. 

In the instant case, the district court also unfortunately

failed to make specific findings of significant hindrance.

However, as Rickett, it is clear that Flores-Botello’s conduct

significantly impeded the official investigation or prosecution.

The record reveals Flores-Botello’s deception at the time of his

arrest was a repeat performance of his use of false identification

during another detention, only a few days earlier in Abilene,

Texas. On the occasion of the second arrest, he produced a fake

Texas drivers license and Social Security card and claimed two

false aliases. Appellant was thus a repeat obstructer, and his

earlier obstruction enabled him to be involved in the second crime

of which he is here convicted. The court did not clearly err in

accepting the PSR’s determination that this conduct posed a

significant hindrance to law enforcement.

For these reasons, the sentence is AFFIRMED.