United States v. Gustavo Lerma ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10453
Plaintiff-Appellee, D.C. No.
2:17-cr-00195-JAM-1
v.
GUSTAVO ARAUJO LERMA, AKA Fnu MEMORANDUM*
Lnu, AKA Hiram Enrique Velez,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted December 9, 2020**
San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and SESSIONS,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
Gustavo Araujo Lerma1 appeals from the district court’s judgment and
sentence following a trial in which the jury convicted him of one count of
aggravated identity theft pursuant to 18 U.S.C. § 1028A, one count of passport
fraud in violation of 18 U.S.C. § 1542, and five counts of illegal voting by an alien
in violation of 18 U.S.C. § 611. As the parties are familiar with the facts, we do
not recount them here. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
Lerma first contends that this Court should reverse his aggravated identity
theft conviction because the district court erred in refusing to instruct the jury that
a common-law name change is a defense to aggravated identity theft. We review
de novo whether a jury instruction correctly states the applicable law. United
States v. Cortes, 757 F.3d 850, 857 (9th Cir. 2014). A defendant “is entitled to an
instruction concerning his theory of the case if the theory is legally sound and
evidence in the case makes it applicable,” United States v. Washington, 819 F.2d
221, 225 (9th Cir. 1987), but “is not entitled to an instruction that misstates the
law,” United States v. George, 420 F.3d 991, 1000 (9th Cir. 2005).
Here, the district court properly determined that a common-law name change
is not a defense to aggravated identity theft under 18 U.S.C. § 1028A. Although
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We recognize that Appellant maintains that his name is not Gustavo Araujo
Lerma but we refer to him as “Lerma” here pursuant to the convention in his
Opening Brief.
2
Lerma asserts that other Circuits have recognized that a common-law name change
can be a defense to passport fraud,2 Lerma cites no case establishing that this
defense similarly applies in the context of aggravated identity theft. Voter fraud
does not require the government to prove the defendant used a name other than his
own: “Whoever knowingly makes any false statement or claim that he is a citizen
of the United States in order to register to vote or to vote in any Federal, State, or
local election (including an initiative, recall, or referendum)” violates 18 U.S.C.
§ 1015(f). For this reason, the common-law name change defense Lerma
requested would not have negated an element of the charged offense. Therefore,
the district court did not err in refusing to instruct the jury that a common-law
name change is a defense to aggravated identity theft.
Second, Lerma argues that the district court erred in imposing a two-level
sentencing enhancement to his passport fraud charge for obstruction of justice
because any false testimony he gave regarding his citizenship was not material to
the passport fraud charge. He further contends that such testimony did not obstruct
justice because it was implausible and could not have misled the jury. We review
a district court’s “characterization of a defendant’s conduct as obstruction of
justice within the meaning of [Sentencing Guidelines] § 3C1.1” de novo. United
2
See United States v. Mount, 757 F.2d 1315, 1318–20 (D.C. Cir. 1985); United
States v. Wasman, 641 F.2d 326, 327, 329 (5th Cir. Unit B Apr. 1981); United
States v. Cox, 593 F.2d 46, 48–49 (6th Cir. 1979).
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States v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014). However, we review
the district court’s underlying factual findings for clear error. Id. at 821. For a
district court to impose an obstruction-of-justice enhancement under § 3C1.1, the
court must specifically find that the defendant provided (1) false testimony (2) “on
a material matter” (3) with “willful intent” to provide false testimony. Id. at 822
(quoting United States v. Garro, 517 F.3d 1163, 1171 (9th Cir. 2008)). Although
the findings must be specific, the district court’s brief statement incorporating the
government’s reasoning as to these three elements sufficed. United States v.
Shannon, 137 F.3d 1112, 1119 (9th Cir. 1998), overruled on other grounds by
United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) (en banc).
At the sentencing hearing, the district court formally adopted the
government’s contentions that Lerma gave false testimony on a material matter
with willful intent. Accordingly, the district court made the specific findings
necessary to support an obstruction-of-justice enhancement. See id. Lerma’s
contention that his purportedly false testimony could not have influenced the jury
is inapposite because implausible perjured testimony can still support an
obstruction-of-justice finding. See United States v. Johnson, 812 F.3d 757, 762
(9th Cir. 2016) (explaining that “perjury does not have to actually impede a
prosecution or trial” to constitute obstruction of justice); United States v. Barbosa,
906 F.2d 1366, 1369–70 (9th Cir. 1990) (affirming upward adjustment for
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obstruction even though the trial court found that the defendant’s testimony “was
pure fantasy”). The district court therefore did not err in imposing a two-level
sentence enhancement for obstruction of justice on Lerma’s passport fraud charge.
AFFIRMED.
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