United States v. Ifrah ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 6, 2006
Charles R. Fulbruge III
Clerk
No. 05-20122
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YANIV IFRAH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-515-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Yaniv Ifrah (“Ifrah”) was convicted by a jury of making a
false statement in violation of 18 U.S.C. § 1001 and assaulting a
Customs and Border Protection (“CBP”) officer in violation of
18 U.S.C. § 111. Ifrah asserts that the evidence was
insufficient to satisfy the knowing and willful requirement of
18 U.S.C. § 1001, because he did not know his conduct of
supplying a material false statement to the CBP officer was in
violation of the law. Under 18 U.S.C. § 1001, “[t]he requirement
*
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this opinion should not be published and is not precedent except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. 05-20122
-2-
that the false representation be made ‘knowingly and willfully’
is satisfied if the defendant acts deliberately and with the
knowledge that the representation is false.” United States v.
Guzman, 781 F.2d 428, 431 (5th Cir. 1986). A review of the
record reveals that there was sufficient evidence for the jury to
find that, when Ifrah stated that he did not know anybody or any
address in the United States, Ifrah was acting deliberately and
with the knowledge that this statement was false.
Ifrah also contends that the district court erred in
refusing to give jury instructions concerning the holding of
United States v. Schnaiderman, 568 F.2d 1208 (5th Cir. 1978),
reversed on other grounds, United States v. Rodriguez-Rios, 14
F.3d 1040, 1044-50 (5th Cir. 1994) (en banc), and the meaning of
the word “willfully.” Ifrah’s suggested jury instructions are
not correct statements of the law. As a result, the district
court did not abuse its discretion in refusing to give Ifrah’s
proposed instructions. See United States v. Asibor, 109 F.3d
1023, 1035-36 (5th Cir. 1997); see also McBride v. United States,
225 F.2d 249, 254-55 (5th Cir. 1955).
Ifrah further contends that the district court erred in
making factual findings regarding physical contact and
obstruction of justice independent of the jury under the
preponderance-of-the-evidence standard. Ifrah does not challenge
the reasonableness of his sentence. Under the advisory
sentencing scheme post-Booker, district judges may find facts
No. 05-20122
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relevant to sentencing, employing the preponderance-of-the-
evidence standard. See United States v. Mares, 402 F.3d 511,
518-19, n.6 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005);
United States v. Booker, 125 S. Ct. 738, 767 (2005); United
States v. Lopez-Urbina, __ F.3d __, No. 04-50135, 2005 WL 1940118
at *5 (5th Cir. Aug. 15, 2005), cert. denied, 126 S. Ct. 672
(2005).
AFFIRMED.