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United States v. Ramirez-Ortega
filed*fn*: June 27, 1991.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
JOSE LUIS RAMIREZ-ORTEGA, DEFENDANT-APPELLANT
Appeal from the United States District Court for the Southern District of California; Judith N. Keep, Chief District Judge, Presiding; D.C. No. CR-90-0272-11-K.
Canby and Rymer, Circuit Judges, and Ware, District Judge.**fn**
Jose Luis Ramirez-Ortega appeals his sentence imposed under the United States Sentencing Guidelines, following his guilty plea for illegal entry in violation of 8 U.S.C. § 1325. Ramirez contends that the district court erred by increasing his base offense level by two under U.S.S.G. § 3C1.1 for obstruction of justice and by failing to decrease his base offense level under U.S.S.G. § 3E1.1 for acceptance of responsibility. We have jurisdiction under 18 U.S.C. § 3742(a)(2),*fn1 and we affirm.
At the time of Ramirez's sentencing, U.S.S.G. § 3C1.1 provided for a two-level increase in the base offense level "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 (Nov. 1989). The district court's conclusion that Ramirez obstructed justice is a factual conclusion which we review for clear error. United States v. Christman, 894 F.2d 339, 342 (9th Cir. 1990).
The district court's conclusion that Ramirez obstructed justice was not clearly erroneous. Although Ramirez's use of a false name and the various false statements he made to the arresting agents may not suffice to warrant the two-level enhancement,*fn2 Ramirez's mischaracterization of his prior arrest record in the written material he submitted to the probation officer is sufficient.*fn3 The commentary to § 3C1.1 explains that an adjustment is proper when a defendant "provides materially false information to a probation officer in respect to a presentence or other investigation for the court." U.S.S.G. § 3C1.1 comment. (n.3(h)) (Nov. 1990). We have held that this applies to a defendant who misrepresents his prior criminal record to a probation officer, notwithstanding the fact that the officer has access to the defendant's "rap sheet." United States v. Baker, 894 F.2d 1083, 1084 (9th Cir. 1990); see also Christman, 894 F.2d at 342.
Nor did the district court err in denying Ramirez a downward adjustment for acceptance of responsibility. Ramirez failed to show that the district court's decision was without foundation in facts, United States v. Smith, 905 F.2d 1296, 1301 (9th Cir. 1990), and he failed to show contrition for his offense, United States v. Piper, 918 F.2d 839, 840 (9th Cir. 1990). Accordingly, the sentence the district court imposed is
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