United States v. Guerra-Mesta , 213 F. App'x 299 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 9, 2007
Charles R. Fulbruge III
Clerk
No. 06-40060
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUADALUPE GUERRA-MESTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-407-ALL)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Guadalupe Guerra-Mesta appeals his 36-
month sentence for knowingly transporting an alien within the
United States by means of a motor vehicle, in violation of 8 U.S.C.
§ 1324. He argues that the district court erred in imposing an
enhancement pursuant to U.S.S.G. § 3C1.1. for obstruction of
justice and in denying him an adjustment pursuant to U.S.S.G. §
3E1.1 for acceptance of responsibility.
A district court’s finding that a defendant obstructed justice
is reviewed for clear error. United States v. Gonzalez, 436 F.3d
*
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this opinion should not be published and is not precedent except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.
560, 586 (5th Cir.), cert. denied, 126 S. Ct. 2363 (2006). In
imposing the enhancement, the district court relied in part on the
fact that Guerra-Mesta did not appear at his first sentencing
hearing. Guerra-Mesta argues that he did not have notice of the
sentencing hearing at which he failed to appear and that his
conduct was therefore not willful. Assuming arguendo that this
assertion is correct, the district court did not commit clear error
in finding that Guerra-Mesta obstructed justice, as he also failed
to contact his probation officer for six months, and his probation
officer was unable to locate him during that period. See United
States v. Infante, 404 F.3d 376, 393-94 (5th Cir. 2005); see also
United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000)
(identifying obstructive conduct as that which creates an
inherently high risk that justice will be obstructed and is the
result of more than a spur-of-the-moment decision).
Guerra-Mesta also argues that the district court erred in
denying him a reduction for acceptance of responsibility. A
district court’s denial of a reduction for acceptance of
responsibility is reviewed under a standard even more deferential
than the clearly erroneous standard. United States v. Ragsdale,
426 F.3d 765, 781 (5th Cir. 2005), cert. denied, 126 S. Ct. 1405(2006). Only in extraordinary cases do adjustments under both §
3C1.1 and § 3E1.1 apply. § 3E1.1 comment.(n.4). Guerra-Mesta
points to no extraordinary circumstances in his case which support
his argument that he should have received an acceptance of
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responsibility adjustment despite the imposition of the § 3C1.1
enhancement. As the district court did not err in imposing either
enhancement, we do not reach Guerra-Mesta’s argument regarding the
district court’s imposition of an alternative non-guideline 36-
month sentence. Accordingly, the judgment of the district court is
AFFIRMED.
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