* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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 

### NOV 4 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LUIS ARMANDO PEREA-VIVAS, aka Jorge Colon Perez, Defendant - Appellant. No. 98-3234 (D.C. No. 97-40084-01-SAC) (District of Kansas)

ORDER AND JUDGMENT *

Before BRORBY , HENRY and LUCERO , Circuit Judges.

Luis Armando Perea-Vivas pleaded guilty to possessi on with intent to distribute cocaine, in violation of 21 U.S.C. § 841 . His sentence calculation included a two-level enhancement for obstruction of justice pursuant to the United States Sentencing Guidelines (“USSG”) § 3C1. 1. He appeals this twolevel enhancement, arguing that the evidence did no t support its imposition. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and affirm.1 Investigation subsequently discovered no convenie nce store in the

vicinity of the named intersection. -2- I In October 1997, Perea-Vivas was a front-seat passe nger in a Buick driven by Asceneth Villota-Gomez when the vehicle was stop ped for speeding by Kansas Highway trooper B.K. Smith. While running computerchecks on Villota-Gomez, Smith elicited from her a statement that she had bo rrowed the car from “Yolanda” to attend a cousin’s wedding, but did not know the location of the wedding and was to meet someone in Kansas City at a convenience store at the corner of 27th and Indiana Streets. 1 Smith stated that his suspicions were aroused by a strong odor of automobile body repair putty and fresh paint from w ithin the vehicle, an odor he associated, in his experience, with the possibilityof a hidden compartment containing drugs. These suspicions were exacerbate d by the defendants’ nervous behavior and Villota-Gomez’s implausible statement of her travel plans. Smith obtained Villota-Gomez’s consent to search th e vehicle. Upon his search, he discovered approximately five kilograms of what was eventually determined to be cocaine. Upon Perea-Vivas’s arres t, he produced false Texas identification indicating his name was Jorge Colon Perez. The address on this recently-obtained identification card was later det ermined to be that of Isabel-3-

Yolanda Cortez, the owner of the Buick. Perea-Viva s was also found to be in possession of a pager obtained under the name of Is a or Yolanda Galvin, residing at that same address, and receipts for the transferof approximately $850 to Colombia. Isabel Yolanda Cortez was also later dis covered to have posted a $2500 bond for Perea-Vivas’s previous arrest on imm igration charges. Perea-Vivas and Villota-Gomez were charged by a grand jury with one count of possession with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) & b(1)(A) and18 U.S.C. § 2, and one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a), 846 and 18 U.S.C. § 2. At their detention and arraignment hearing, Villota-Gomez pleaded not guilty. In February of 1998, Perea-Vivas entered a petitionto plead guilty to the first count, possession with intent to distribute, in exchange for the government’s promise to dismiss the conspiracy count and seek a sentence adjustment for acceptance of responsibility. At his plea hearing, Perea-Vivas pleaded guilty and requested the opportunity to address the court. Th rough an interpreter, PereaVivas stated as follows: He says that he took advantage of the young lady, t he codefendant, and she’s innocent. She knew nothing of that contr aband in the car, that she knew absolutely nothing. He, um, he foole d her, I guess you might say. He made a fool of her or fooled her. S he wasn’t aware that there were drugs in the car, and she knew noth ing about it. She’s innocent.-4-

(II R. at 18-19.) Shortly later that day, the court accepted Villota- Gomez’s plea of guilty as to the count of possession with intent to distribut e. Neither the court nor the government questioned Villota-Gomez regarding wheth er Perea-Vivas knew of her knowledge of the contraband. The presentence report recommended that Perea-Viva s’s false assertion of Villota-Gomez’s innocence represented a materially false statement to a judge and therefore merited a two-level enhancement for obstruction of justice pursuant to USSG § 3C1.1. Perea-Vivas objected, and the district court hear d arguments from both sides regarding the enhancement. With re spect to the obstruction of justice enhancement, the district court found the e nhancement justified by PereaVivas’s statement of Villota-Gomez’s innocence, not ing as follows: The court does not accept defendant[’s] counsel’s r easoning that one didn’t know what the other was doing, and the courtbelieves that the obstruction of justice and the information given to the court was false at the time it was given by the defendant to the court during his plea. (V R. at 18.) The district court proceeded to sent ence Perea-Vivas to 97 months imprisonment. Perea-Vivas now appeals the impositi on of the obstruction of justice enhancement.-5- II “In reviewing an application of the Guidelines, we will reverse the district court’s factual findings only if clearly erroneous. However, we will remand for resentencing if the Guidelines were incorrectly app lied.” United States v. Bernaugh , 969 F.2d 858, 861 (10th Cir. 1992) (citations andinternal quotations omitted). USSG § 3C1.1 provides for a two-level sentencing en hancement if (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice d uring the course of the investigation, prosecution, or sentencing of th e instant offense of conviction, and (B) the obstructive conduct relatedto (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense. USSG § 3C1.1. The Guidelines’ “non-exhaustive listof examples” for application of this enhancement includes “providing materially false information to a judge or magistrate.” USSG § 3C1.1, comment. (n.4(f)). “Material” information means, for purposes of the obstruction of justice enhancement, “information that, if believed, would tend to influ ence or affect the issue under determination.” USSG § 3C1.1, comment. (n.6). “[T]he section 3C1.1 enhancement applies where a defendant attempts to o bstruct justice in a case closely related to his own, such as that of a codef endant.” Bernaugh , 969 F.2d at 861; see also USSG § 3C1.1, comment. (n.1(B)(ii)).-6-

The parties apparently agree on the proposition, wh ile differing as to its implications, that in considering the application o f an enhancement pursuant to § 3C1.1, the court should evaluate testimony in the light most favorable to the defendant. See United States v. Arias-Santos , 39 F.3d 1070, 1076 (10th Cir. 1994). We note, however, that application note 1 t o section 3C1.1 was amended, effective November 1, 1997 (after Perea-Vivas’s cri me but prior to his sentencing) to eliminate language providing that “t estimony or statements should be evaluated in a light most favorable to the defen dant.” USSG App. C, amend. 566. The application note now provides that “the c ourt should be cognizant that inaccurate testimony or statements sometimes may re sult from confusion, mistake, or faulty memory and, thus, not all inaccu rate testimony or statements necessarily reflect a willful attempt to obstruct j ustice.” USSG § 3C1.1, comment. (n.2). In determining which version of th e Guidelines to apply, we have held: Normally, district courts are to apply the sentenci ng guidelines in effect at the time of sentencing rather than the gu idelines in effect on the date of the offense. See 18 U.S.C. § 3553(a)(4 ) & (5). But the ex post facto clause prohibits retroactive applicat ion of a changed guideline if the change disadvantages the defendant . See Miller v. Florida , 482 U.S. 423, 430, 433 (1987). See also United States v. Smith , 930 F.2d 1450, 1452 n. 3 (10th Cir. 1991). United States v. Underwood , 938 F.2d 1086, 1090 (10th Cir. 1991). We need no t-7-

resolve whether the amendment at issue implicates e x post facto issues because our result remains the same under either version of the application note. We consider whether the district court’s factual fi ndings were clearly erroneous, or its application of USSG § 3C1.1 incorrect, with respect to the necessary elements of this obstruction enhancement: falsity, materiality, and willfulness. See United States v. Cerrato-Reyes , 176 F.3d 1253, 1263 (10th Cir. 1999). A. Falsity The falsity of Perea-Vivas’s statements is evident. Shortly after he asserted Villota-Gomez’s innocence and ignorance of the contraband, she entered a plea of guilty to a charge of possession with int ent to distribute. This offense necessarily incorporated an element of scienter, th erefore refuting Perea-Vivas’s assertion of his co-defendant’s ignorance. Perea-V ivas’s claim that his statement was not a statement of fact but merely a subjective ly true statement of his own lack of knowledge of Villota-Gomez’s involvement is belied by his affirmative statement to the court that he “made a fool of” or “fooled” his co-defendant. Therefore, the element of falsity is clearly establ ished. B. Materiality We agree with Perea-Vivas that a false statement re garding a codefendant’s innocence, like a false statement regar ding a defendant’s own2 Since the same judge sentenced both Perea-Vivas and Villota-Gomez,

that judge would seem uniquely qualified to make th e factual assessment of whether Perea-Vivas’s statement, if believed, would“tend to influence or affect the issue under determination.” USSG § 3C1.1, comm ent. (n.6); see also FloresFlores , 5 F.3d at 1368. -8- innocence, “does not automatically warrant” an obst ruction of justice enhancement. Cerrato-Reyes , 176 F.3d at 1263 (quoting United States v. Markum , 4 F.3d 891, 897 (10th Cir. 1993)). Such a false statement must additionally concern “a material matter designed to substantially affect the outcome of the case.” Cerrato-Reyes , 176 F.3d at 1263 (quoting Arias-Santos , 39 F.3d at 1077). “Whether the particular facts of a case show that the misinformation offered by the defendant was suffici ent to significantly impede an investigation is a question of fact to be determine d by the sentencing court.” United States v. Flores-Flores , 5 F.3d 1365, 1368 (10th Cir. 1993) (citing United States v. Easterling , 921 F.2d 1073, 1077 (10th Cir. 1990)). 2 Although it is unlikely, given the timing of Perea-Vivas’s stateme nt, that the government or the court would have believed his assertions of Villota -Gomez’s innocence, the futility of his attempt at obstruction does not def eat the materiality of the misinformation offered. See Flores-Flores , 5 F.3d at 1368 (holding that “[m]ateriality in the context of false information is not determined by whether the authorities somehow manage to ferret out accurate i nformation prior to a defendant’s first court appearance”).-9-

Nor does the generality of Perea-Vivas’s statements render clearly erroneous the district court’s factual finding of m ateriality. We have held that “to sustain a USSG § 3C1.1 enhancement, a defendantneed not provide a story that when believed, would fully exculpate his or he r codefendant. Rather, it is enough that a defendant provides false information bearing on the extent of the codefendant’s criminal liability.” United States v . Shumway , 112 F.3d 1413, 1426 (10th Cir. 1997) (citing Bernaugh , 969 F.2d at 862). As in Bernaugh , 969 F.2d at 862, “[i]n order to avoid making incriminating statement s as to the roles of his codefendants, [the defendant], while testify ing under oath, chose to provide false information to the court . . . partly in hope that if he were believed his codefendants would avoid criminal punishment.” The fact that such hope was ephemeral does not defeat findings of materiality a nd intent. See id. While the false statements at issue in Shumwayand Bernaugh were arguably more detailed and extensive than those bef ore us in this case, the level of detail is not solely determinative of whether in formation would, “if believed, . . . tend to influence or affect the iss ue under determination.” USSG § 3C1.1, comment. (n.6). Under Shumwayand Bernaugh , therefore, there is no clear error in the district court’s finding of mate riality.
C. Intent-10-

An enhancement under § 3C1.1 requires willful inten t to mislead. See Cerrato-Reyes , 176 F.3d at 1263; Flores-Flores , 5 F.3d at 1368 n.5

. The government must demonstrate “that the defendant consciously acted with the purpose to obstruct justice.” United States v. Hernandez , 967 F.2d 456, 459 (10th Cir. 1992) (citing United States v. Gardiner , 931 F.2d 33, 35 (10th Cir. 1991)). “[C]entral to the willfulness inquiry ‘[is] the def endant’s knowledge of the requirements placed upon him by the court and his c onscious decision to ignore its mandate.’” United States v. Taylor , 997 F.2d 1551, 1560 (10th Cir. 1993) (quoting United States v. Monroe , 990 F.2d 1370, 1376 (D.C. Cir. 1993)). Thus, there must be “the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory” to sustainthe enhancement. United States v. Dunnigan , 507 U.S. 87, 94 (1993); see Arias-Santos , 39 F.3d at 1076-77. Perea-Vivas’s principal argument regarding lack of intent proceeds as follows: Villota-Gomez’s guilty plea indicates thatshe knew of the drugs, but does not prove that Perea-Vivas knew that she knew. Therefore, while PereaVivas’s statement was false, there is no proof it w as intentionallyfalse, as he might have (wrongly) believed it true, and there is nothing but inference to impute to him knowledge of her knowledge. While it is true that the knowledge and therefore r equisite intent are only imputed to Perea-Vivas by inference, the inferences mustered by the government3 Perea-Vivas also relies on the fact that in Berna ugh , the co-defendants

were prepared to go to trial, whereas Villota-Gomez was already prepared to plead guilty. This distinction does not defeat the finding of willful intent. While it appears obvious that the court had ample reason not to believe appellant’s assertions of Villota-Gomez’s ignorance, the focus in assessing imposition of a § 3C1.1 enhancement is on the purpose and possible effect of his statements, not their actual effect. See, e.g. , Flores-Flores , 5 F.3d at 1368; Bernaugh , 969 F.2d -11- are sufficiently strong to uphold against clear err or review the conclusion that he knew that Villota-Gomez was involved in smuggling the drugs. First, PereaVivas apparently spoke little English and had been in the country only a short time, and therefore the government suggests it was unlikely that anyone would entrust him alone with over a million dollars in co caine. Second, only VillotaGomez had the directions and pager number to meet their delivery contact in Kansas city. The fact that she had this informatio n, and made false and vague statements regarding their destination, strongly su ggests that she was not, as Perea-Vivas asserts, merely his dupe. For he did m ore than simply profess ignorance of her involvement; he affirmatively test ified that he had fooled her into participating. While the government or the court might have obtain ed additional evidence of Perea-Vivas’s knowledge of Villota-Gomez’s invol vement through further questioning of Villota-Gomez, the government’s burd en of demonstrating grounds for an enhancement does not require all pot entially available evidence, only a preponderance of the evidence. 3 See, e.g. , United States v. Pelliere , 57at 862.

4 The government’s motion to supplement the record is granted. -12- F.3d 936, 938 (10th Cir. 1995). The evidence in th is case is sufficient to sustain against clear error review the district court’s con clusion that the government’s burden was met with respect to the element of willf ulness. Therefore, we defer to the district court’s finding that Perea-Vivas wi llfully and intentionally provided false information to the court regarding V illota-Gomez’s role in the crime. See Bernaugh , 969 F.2d at 861-62.
III Perea-Vivas’s sentence is AFFIRMED

. 4
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge