United States v. Ricardo Rodriquez-Macias , 914 F.2d 1204 ( 1990 )

PER CURIAM:

Ricardo Rodriquez-Macias (“Rodriquez”) appeals the sentence imposed upon him by the district court. The district court’s sentence was based, in part, on the fact that Rodriquez had used an alias when he was arrested. We affirm.

BACKGROUND FACTS

Rodriquez was arrested on May 23, 1989, and was charged with illegally entering the United States after he had previously been deported. See 8 U.S.C. § 1326. Rodriquez pleaded guilty and was set to be sentenced on August 21, 1989.

The presentence report prepared for Rodriquez indicated that his offense level under the Guidelines was a six. The pre-sentence report did not address whether Rodriquez had obstructed justice during the course of his criminal proceedings. The presentence report also calculated Rodriquez’ criminal history category at level IV. With an offense level of six and a criminal history category of four, the appropriate Guidelines range is six to twelve months.

On August 21, 1989, the district court indicated that it believed that Rodriquez should have a total offense level of eight rather than six. The court thought that the offense level should have been adjusted upward because Rodriquez had given a false name at the time of his arrest. The court also told counsel that it was considering departing from the Guidelines because Rodriquez’ criminal history category did not adequately reflect the seriousness of his past conduct. The court postponed Rodriquez’ sentencing so that counsel would have an opportunity to consider and respond to the court's concerns prior to sentencing.

Rodriquez returned to court for sentencing on September 1, 1989. Neither party disputed any of the facts contained in the presentence report. The court stated that the appropriate offense level was eight because Rodriquez had obstructed justice when he used a false name at the time of his arrest. The court agreed with the pre-sentence report that the proper criminal history category was IV. The court then sentenced Rodriquez to a sixteen month term. The sixteen month sentence was within the applicable range.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 18 U.S.C. § 3742.

We review for clear error a sentencing court’s findings of fact under the Guidelines. 18 U.S.C. § 3742(e); United States v. Christman, 894 F.2d 339, 342 (9th Cir.1990). It is a question of fact whether a defendant obstructed justice under the Guidelines. Christman, 894 F.2d at 342.

DISCUSSION

The district court correctly sentenced Rodriquez to a term of sixteen months because it did not err when it adjusted Rodriquez’ initial offense level upward by two points. A sentence of sixteen months falls within the span of the range that corresponds to an offense level of eight and a criminal history category of IV.¹

Section 3C1.1 of the Guidelines states that a defendant’s offense level may be increased by two points if the defendant “willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense.... ” U.S.S.G. § 3C1.1. Section 3C1.1 encompasses conduct which occurs at the time of arrest. United States v. Irabor, 894 F.2d 554, 556 (2d Cir.1990) (3C1.1 applies to defendant who gave false name to police at arrest); United States v. Patterson, 890 F.2d 69, 71-72 (8th Cir.1989) (3C1.1 applies to defendant who gave false name to police when stopped and then arrested); see also United States v. Baker, 894 F.2d 1083, 1084 (9th Cir.1990) (Patterson cited with approval but focus of opinion was on whether misstatements to probation officer about criminal history constituted obstruction of justice). Therefore, Rodriquez could obstruct justice even though his actions occurred before any judicial proceedings were underway.

We have previously held that a defendant obstructs justice when the defendant lies to a probation officer. Baker, 894 F.2d at 1084. Consistent with Baker, we hold that Rodriquez obstructed justice when he lied to the officer who stopped and arrested him.² See Irabor, 894 F.2d at 556; Patterson, 890 F.2d at 72. As such, the district court did not err when it found that Rodriquez’ statements at the time of his arrest³ constituted an obstruction of justice.

AFFIRMED.

1 . Rodriquez argues on appeal that the district court departed from the Guidelines range because the court thought that Rodriquez’ criminal history category was inadequate. However, the record shows that the court did not depart from the Guidelines but rather that it decided to increase Rodriquez' offense level by two points for obstruction of justice.

2 . Rodriquez did not dispute the fact that he gave an alias at the time of his arrest. Furthermore, the facts show that he continued to use a false name during the ensuing questioning until an agent recognized and identified him.

3 . We do not decide whether the use of an alias at an earlier time or under different circumstances could constitute an obstruction of justice.