United States v. Mosquera-Olave ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31353
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE MOSQUERA-OLAVE, also known as Juan
Rodriguez Santos, also known as Juan Santos
Rodriguez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CR-85-1-L
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October 18, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Enrique Mosquera-Olave appeals his sentence following his
guilty-plea conviction for conspiring to import cocaine
hydrochloride and for attempting to possess with the intent to
distribute cocaine hydrochloride. Mosquera-Olave asserts that the
district court erred in applying an upward adjustment for his role
in the offense, applying an upward adjustment for obstruction of
justice, and refusing to apply a downward adjustment for acceptance
of responsibility.
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 99-31353
-2-
Because the record shows that Mosquera-Olave set up the drug
transaction, recruited a codefendant to take part in the offense,
and agreed to pay the codefendant for his participation, the
district court did not clearly err in finding that Mosquera-Olave
was an organizer, leader, manager, or supervisor of the criminal
activity. See § 3B1.1, comment. (n.4); United States v. Ocana, 204
F.3d 585, 592 (5th Cir. 2000). The district court’s application of
the role-in-the-offense adjustment was not error.
In an attempt to hide his true identity during the
investigation and prosecution of this case, Mosquera-Olave produced
a false Puerto Rican birth certificate and provided materially
false information regarding his identity to the magistrate judge at
his detention hearing and in a financial status affidavit, to the
district judge at trial and rearraignment, and to the probation
officer conducting a presentence investigation for the court.
Thus, the district court did not clearly err in finding that
Mosquera-Olave obstructed justice, and its application of the
obstruction-of-justice enhancement was proper. See § 3C1.1,
comment. (nn.2,4(c),(f),(h); see also United States v. Rodriguez,
942 F.2d 899, 902 (5th Cir. 1991) (upholding application of
enhancement where defendant provided court with a fraudulent birth
certificate); United States v. McDonald, 964 F.2d 390, 391 (5th
Cir. 1992) (holding that the use of a false name before a judge or
magistrate merits enhancement without a showing that the
investigation or prosecution was significantly hindered).
Finally, the district court did not err in refusing to apply
the acceptance-of-responsibility adjustment. See United States v.
No. 99-31353
-3-
Flucas, 99 F.3d 177, 180 (5th Cir. 1996) (holding that the district
court’s acceptance-of-responsibility determination is reviewed with
even more deference than the pure clearly erroneous standard);
§ 3E1.1, comment. (n.5). Mosquera-Olave’s guilty plea, entered on
the second day of trial, was not particularly timely since it did
not allow the Government to avoid preparing for and conducting a
portion of the trial. See § 3E1.1, comment. (nn.1(h),6).
Moreover, even after he pleaded guilty, Mosquera-Olave continued to
obstruct justice by providing a false name, and he refused to admit
his full participation in the conspiracy. See id. at comment.
(nn.3-4).
The district court’s judgment is AFFIRMED.