927 F2d 611 United States v. Larios-Valencia

927 F.2d 611

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Jesus LARIOS-VALENCIA, aka Pedro Cortez-Soto Defendant-Appellant

No. 89-50400.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 5, 1991.*
Decided March 8, 1991.

Appeal from the United States District Court For the Southern District of California, No. CR-89-0082-N; Leland C. Nielsen, District Judge, Presiding.

S.D.Cal.

AFFIRMED.

Before JAMES R. BROWNING, D.W. NELSON and REINHARDT, Circuit Judges.

MEMORANDUM**

Defendant JESUS LARIOS-VALENCIA appeals a 71-month sentence imposed pursuant to the United States Sentencing Guidelines. Larios-Valencia asserts that the district court erred in adding two points to his offense level for obstruction of justice under U.S.S.G. Sec. 3C1.1 and refusing to deduct two points from his offense level for acceptance of responsibility under U.S.S.G. Sec. 3E1.1. We affirm the district court's sentence.

The addition of two points to Larios-Valencia's offense level for obstruction of justice was based on his use of an alias. In United States v. Rodriguez-Macias, 914 F.2d 1204, 1205 (9th Cir.1990) the majority concluded that Rodriguez-Macias obstructed justice when he lied about his true name to the officer who stopped and arrested him. Here, Larios-Valencia not only lied to arresting agents about his true name, he also lied to the United States magistrate who arraigned him, and continued lying to authorities about his true name until his trial. See Rodriguez-Macias, 914 F.2d at 1205-6 (Tang, J. dissenting). The district court's decision to add two points to Larios-Valencia's offense level for obstruction of justice was not clearly erroneous.

1

Larios-Valencia's argument that the district court erred in refusing to deduct two points from his offense level for acceptance of responsibility is equally ineffective. The Guidelines provide:

2

Conduct resulting in an enhancement under Sec. 3C1.1 (Willfully Obstructing or Impeding Proceedings) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both Sec. 3C1.1 and Sec. 3E1.1 may apply. (U.S.S.G. Sec. 3E1.1, comment. (n. 4)).

3

The district court did not find this to be an extraordinary case. Because Larios-Valencia obstructed justice and his case was not an extraordinary one, the district court's refusal to deduct two points from his offense level for acceptance of responsibility was not clearly erroneous.

4

The district court's sentence of 71 months is AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit rule 36-3