United States v. Santos

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 01-20897 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR ANTONIO SANTOS,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (H-01-CR-259-1)

April 30, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Oscar Antonio Santos appeals his sentence following his guilty

plea to: conspiracy to commit mail theft, 18 U.S.C. § 371;

unlawful possession of stolen mail, 18 U.S.C. §§ 2 & 1708; unlawful

possession of a counterfeited United States Postal Service key, 18

U.S.C. §§ 2 & 1704; and illegal reentry after deportation, 8 U.S.C.

§ 1326. He challenges upward adjustments imposed pursuant to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. U.S.S.G. § 3C1.1 (obstruction of justice) and § 3B1.4 (use of minor

to commit offense).

“A district court’s finding that a defendant has obstructed

justice under section 3C1.1 is a factual finding and thus, reviewed

for clear error.” United States v. Storm, 36 F.3d 1289, 1295 (5th

Cir. 1994), cert. denied, 514 U.S. 1084 (1995). The finding that

Santos obstructed justice when he misrepresented his identity and

personal history to the probation officer was not clearly

erroneous. Santos maintains his misrepresentations were not

material; but, “a defendant’s personal history is always pertinent

to sentencing; the court must know whom it is sentencing in order

to sentence properly”. United States v. Montano-Silva, 15 F.3d 52,

53 (5th Cir. 1994) (per curiam).

Assuming arguendo error in the application of the U.S.S.G. §

3B1.4 enhancement, it was harmless; the enhancement did not affect

the applicable Guideline range and the record indicates the

district court would have imposed the same sentence regardless.

See United States v. Johnson, 961 F.2d 1188, 1189-90 (5th Cir.

1992) (no remand required where error had no effect on applicable

Guideline range and record as a whole does not suggest sentence was

influenced by the error).

AFFIRMED