United States v. Ricardo Rodriquez-Macias

914 F.2d 1204 UNITED STATES of America, Plaintiff-Appellee, v. Ricardo RODRIQUEZ-MACIAS, Defendant-Appellant. No. 89-10442. United States Court of Appeals, Ninth Circuit. Submitted May 15, 1990. * Decided Sept. 13, 1990. David M. Ochoa, Phoenix, Ariz., for defendant-appellant. Linda C. Boone, Sp. Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before TANG, NORRIS and FERNANDEZ, Circuit Judges. PER CURIAM: 1 Ricardo Rodriquez-Macias ("Rodriquez") appeals the sentence imposed upon him by the district court. The district court's sentence was based, in part, on the fact that Rodriquez had used an alias when he was arrested. We affirm. BACKGROUND FACTS 2 Rodriquez was arrested on May 23, 1989, and was charged with illegally entering the United States after he had previously been deported. See 8 U.S.C. Sec. 1326 . Rodriquez pleaded guilty and was set to be sentenced on August 21, 1989. 3 The presentence report prepared for Rodriquez indicated that his offense level under the Guidelines was a six. The presentence report did not address whether Rodriquez had obstructed justice during the course of his…

Ricardo Rodriquez-Macias (“Rodriquez”) appeals the sentence imposed upon him by the district court. The district court’s sentence was based, in part, on the fact that Rodriquez had used an alias when he was arrested. We affirm.

BACKGROUND FACTS

Rodriquez was arrested on May 23, 1989, and was charged with illegally entering the United States after he had previously been deported. See 8 U.S.C. § 1326 . Rodriquez pleaded guilty and was set to be sentenced on August 21, 1989.

The presentence report prepared for Rodriquez indicated that his offense level under the Guidelines was a six. The pre-sentence report did not address whether Rodriquez had obstructed justice during the course of his criminal proceedings. The presentence report also calculated Rodriquez’ criminal history category at level IV. With an offense level of six and a criminal history category of four, the appropriate Guidelines range is six to twelve months.

On August 21, 1989, the district court indicated that it believed that Rodriquez should have a total offense level of eight rather than six. The court thought that the offense level should have been adjusted upward because Rodriquez had given a false name at the…

dissenting:

I respectfully dissent because neither the Sentencing Guidelines nor the record justify upward adjustment for obstruction of justice in this case.

First, I fear that the majority opinion will stand henceforth as circuit authority that use of an alias permits upward adjustments for obstruction of justice. Indeed, the majority cites to cases from other circuits purportedly supporting this simple proposition. The proposition is too simple, however, for it fails to direct us to the central concern under the Guideline, a defendant’s willfully impeding or obstructing “the administration of justice.” Guideline 3C1.1. Unless use of an alias directly shows a defendant has willfully “attempted to im *1206 pede or obstruct the administration of justice,” it should not justify an upward adjustment for the obstruction of justice. Id.

The Commentary to the Guideline on obstruction of justice explains that upward adjustment penalizes those who “willfully interfere with the disposition of criminal charges, in respect to the instant offense.” Id., emphasis added. Examples of obstruction of justice cited in the Commentary thus logically include destroying evidence, perjury,…