United States v. Alvarado

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 25, 2009
No. 08-51004
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROBERT ALVARADO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-3288-ALL
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Robert Alvarado appeals the 210-month sentence imposed following his
guilty plea conviction for conspiracy to manufacture five grams or more of
methamphetamine. Alvarado argues that the district court clearly erred in
making an upward adjustment for obstruction of justice. He contends that the
Government failed to provide evidence to corroborate a confidential source’s (CS)
statement that Alvarado threatened her when he discovered that she was
carrying electronic monitoring equipment during a drug purchase.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-51004
For an obstruction-of-justice enhancement, the district court’s factual
findings are reviewed only for clear error. United States v. Holmes, 406 F.3d
337, 363 (5th Cir. 2005). “A factual finding is not clearly erroneous as long as it
is plausible in light of the record as a whole.” Id.Under U.S.S.G. § 3C1.1, a defendant’s offense level should be increased by
two levels if the defendant threatens, intimidates, or otherwise unlawfully
influences a co-defendant directly or indirectly. § 3C1.1, comment. (n.4(a)).
Although the Government was required to provide reliable evidence of
intimidation, it was not required to provide independent corroborating evidence
that the CS was threatened by Alvarado because the CS was a recognized
coconspirator of Alvarado’s and not an unidentified informant. See § 6A1.3, p.s.,
comment; United States v. Rogers, 1 F.3d. 341, 343-44 (5th Cir. 1993). It could
also be inferred that Alvarado’s seizure of the bag after discovering it held
electronic monitoring equipment constituted an act of intimidation, especially
in light of Alvarado’s well known reputation for violent behavior.
The district court’s decision to apply the adjustment for obstruction of
justice was plausible in light of the record as a whole, and thus, did not
constitute clear error. See Holmes, 406 F.3d at 363.
The sentence is AFFIRMED.
2