United States v. Anna Rivera ( 2012 )

Case: 11-20886 Document: 00512057219 Page: 1 Date Filed: 11/19/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 19, 2012
No. 11-20886
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANNA MARGARITA RIVERA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CR-377-2
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Anna Margarita Rivera appeals the sentences imposed following her guilty
plea convictions for one count of aiding and abetting theft or embezzlement by
a bank officer or employee and one count of bank robbery. She argues that the
district court erred procedurally in applying the enhancement under U.S.S.G.
§ 3B1.3 for abuse of a position of trust and the enhancement under U.S.S.G.
§ 3C1.1 for obstruction of justice. The district court’s application of § 3B1.3 is
reviewed for clear error, including its finding that Rivera held a position of trust.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-20886
See United States v. Dial, 542 F.3d 1059, 1060 (5th Cir. 2008). We also review
for clear error the district court’s finding that a defendant obstructed justice
under § 3C1.1. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.
2008). A finding is not clearly erroneous if “it is plausible in light of the record
as a whole.” United States v. Miller, 607 F.3d 144, 148 (5th Cir. 2010).
For § 3B1.3 to apply, the defendant must have (1) occupied a position of
trust and (2) used that position to significantly facilitate the commission or
concealment of the offense. § 3B1.3; United States v. Ollison, 555 F.3d 152, 165
(5th Cir. 2009). Rivera disputes only whether she occupied a position of trust.
In United States v. Smith, 203 F.3d 884, 886, 893 (5th Cir. 2000), a part-time
teller at a bank branch provided information concerning bank procedures,
including information on when to rob the bank, the location of the money, the
existence of tracking devices, and how to avoid the recording of their faces by the
security camera. Id. at 886, 892-93. Rivera does not dispute that she
participated in planning the staged robbery, advised the purported robbers of the
general layout of the bank, advised the purported robbers that she would place
a tracking device into the bag of stolen money so that the staged robbery would
seem real, had the access code to the vault, and had the duty to close the bank.
The district court’s finding that Rivera occupied a position of trust for purposes
of § 3B1.3 was plausible based on the record as a whole and not clearly
erroneous. See Smith, 203 F.3d at 892-94.
Section 3C1.1 provides for a two-level increase “[i]f (A) the defendant
willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction, and (B) the obstructive conduct
related to . . . the defendant’s offense of conviction and any relevant conduct.”
§ 3C1.1. “False statements which significantly delay an investigation and
prosecution, even if not successful in preventing it, may provide a sufficient basis
for an obstruction enhancement.” United States v. Brooks, 681 F.3d 678, 717
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No. 11-20886
(5th Cir. 2012) (internal quotation marks and citation omitted), petitions for cert.
filed (Aug. 9 and 16, 2012) (Nos. 12-5812, 12-218, and 12-5847). Rivera asserts
that the search for similar crimes was a routine part of the investigation that
would have proceeded notwithstanding her false statements. In United States
v. Phipps, 319 F.3d 177, 191-92 (5th Cir. 2003), the court rejected a similar
argument and held that a defendant’s false identification of an accomplice, which
delayed the investigation by sending the investigators down the wrong trail,
constituted obstruction. The implicit finding that the false information that
Rivera gave to the investigating officers delayed the investigation, “is plausible
in light of the record as a whole.” Miller, 607 F.3d at 148. The district court did
not clearly err in finding that Rivera’s conduct constituted obstruction of justice
under § 3C1.1. See Juarez-Duarte, 513 F.3d at 208.
AFFIRMED.
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