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United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Jesus RODRIGUEZ-PENUELAS, Defendant-Appellant.

No. 18-50217

Decided: November 26, 2019

Before: FERNANDEZ and M. SMITH, Circuit Judges, and OTAKE,** District Judge. Billy Joe McLain, Attorney, US Department of Justice, Southern District of California, San Diego, CA, David P. Finn, Assistant U.S. Attorney, Zachary Howe, Daniel Earl Zipp, Assistant U.S. Attorney, Office of the US Attorney, San Diego, CA, for Plaintiff-Appellee Gene Vorobyov, Attorney, Law Office of Gene Vorobyov, San Francisco, CA, for Defendant-Appellant


Defendant-Appellant Jesus Rodriguez-Penuelas appeals the sentence he received after a jury convicted him of attempted unlawful reentry in violation of 8 U.S.C. § 1326 (a) and (b). Rodriguez-Penuelas testified at trial that Border Patrol Agents forcibly dragged him into the United States from Mexico. At sentencing, the district court found that testimony was willfully false and material, and so applied an obstruction of justice enhancement under U.S.S.G. § 3C1.1. Rodriguez-Penuelas objects only to that enhancement on appeal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The district court did not abuse its discretion in applying an enhancement for obstruction of justice under U.S.S.G. § 3C1.1. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). The district court specifically found that Rodriguez-Penuelas falsely testified about a material matter with willful intent, as our case law requires. See United States v. Herrera-Rivera, 832 F.3d 1166, 1174 (9th Cir. 2016). The record supports that, in doing so, the district court focused on the substance of the false testimony regarding how Rodriguez-Penuelas entered the country, but did not erroneously believe entry itself was an element of the crime. Instead, the court correctly recognized that the testimony about agents physically dragging him into the United States had the potential to influence the jury’s verdict here, because it had to assess whether Rodriguez-Penuelas intended to enter the United States and whether he took a substantial step toward doing so. See United States v. Castillo-Mendez, 868 F.3d 830, 836 (9th Cir. 2017).

We reject Rodriguez-Penuelas’ argument that his testimony was not material because it still placed him close to the border and so suggested an attempt to enter. This argument relies on too narrow a view of materiality. False testimony is material if it has the potential to obstruct the prosecution of the offense. See United States v. Sullivan, 797 F.3d 623, 642 (9th Cir. 2015); see also United States v. Taylor, 749 F.3d 842, 847–48 (9th Cir. 2014); U.S.S.G. § 3C1.1 cmt. n.6 (defining materiality as “tend[ing] to influence or affect the issue under determination”). If believed, testimony that agents dragged Rodriguez-Penuelas into the United States still had the potential to influence the jury’s decision, especially because Rodriguez-Penuelas’ specific intent to enter the United States free from official restraint was a key element in dispute at trial.

Because the record supports the district court’s materiality finding in light of the elements of the charged crime, the finding was neither an abuse of discretion nor proof that the district court misunderstood the elements of the offense. AFFIRMED.

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