United States v. Samira Zuniga

Filing

PER CURIAM OPINION FILED - THE COURT: Kermit E. Bye, Raymond W. Gruender and Bobby E. Shepherd (UNPUBLISHED) [3958079] [12-1694]

United States Court of Appeals
For the Eighth Circuit
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No. 12-1694
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Samira Zuniga
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 17, 2012
Filed: September 28, 2012
[Unpublished]
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Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Samira Zuniga appeals the district court’s1 imposition of a sentence
enhancement for obstruction of justice under U.S.S.G. § 3C1.1 and denial of a
1

The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

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sentence reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. We
affirm.
I
From 2009 to 2011, Zuniga owned and operated a construction company with
her husband, an illegal alien. On April 26, 2011, Immigration and Customs
Enforcement (ICE) arrested nine of Zuniga's employees for residing and working in
the United States illegally. Anticipating her own arrest in connection with their
employment, Zuniga withdrew approximately $17,000 from company bank accounts
and fled to Mexico with her husband and children. On June 18, 2011, she re-entered
the country with her parents-in-law and a family friend and returned to her Iowa
home. When ICE agents observed Zuniga loading a number of possessions into a
cargo trailer, they obtained a search warrant and determined that she appeared to have
been emptying her home. Subsequent interviews revealed Zuniga had informed the
owners of the trailer park in which she lived and the administrators of her children's
school that she and her family would be moving to Mexico.
On June 22, 2011, Zuniga was arrested and charged with one count of
transporting and harboring aliens, one count of conspiracy to transport, harbor,
encourage, and induce aliens to reside in the United States, and related violations of
8 U.S.C. §§ 1324(a)(1)(A)(ii), (iii), and (v)(II), 1324(A)(1)(B)(ii), and 18 U.S.C.
§ 371. Zuniga pleaded guilty to all charges, admitting she knew or recklessly
disregarded the fact that employees of her construction business had been residing
and working in the United States illegally.
At the sentencing hearing, the government presented evidence that Zuniga
made numerous false statements in connection with the preparation of her presentence
report. Specifically, she (1) denied the money withdrawn from her company’s bank
accounts was used to take her family to Mexico, (2) claimed she was not emptying
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the family's trailer, (3) claimed the items being removed from the trailer belonged to
her parents-in-law, (4) claimed she had paid rent on the trailer park lot through July,
evidencing an intent to remain in Iowa, (5) denied having told anyone she was
moving the family to Mexico, and (6) claimed she did not profit from her company.
The district court concluded at least the first three of those statements were both false
and material to matters the court would consider in arriving at an appropriate
disposition. In addition, the court concluded Zuniga’s actions amounted to flight and
the aiding and abetting of her husband's flight from the United States. Accordingly,
the court imposed a two-level upward adjustment to the sentencing range for
obstruction of justice. The court also denied Zuniga’s request for a reduction based
on her acceptance of responsibility. Zuniga now appeals the sentence enhancement
and denial of reduction.
II
We review construction of the Sentencing Guidelines de novo. United States
v. Esparza, 291 F.3d 1052, 1054 (8th Cir. 2002). We review the sentencing court’s
factual findings regarding obstruction of justice and acceptance of responsibility for
clear error. Id.; United States v. Vaca, 289 F.3d 1046, 1048 (8th Cir. 2002). We
extend great deference to the sentencing court's decision to grant an enhancement for
obstruction of justice or deny a reduction for acceptance of responsibility. United
States v. Arellano, 291 F.3d 1032, 1034 (8th Cir. 2002); United States v. Perez, 270
F.3d 737, 739 (8th Cir. 2001).
U.S.S.G. § 3C1.1 provides that a court should increase a defendant’s offense
level by two if “the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the investigation, prosecution,
or sentencing of the instant offense of conviction.” Id. The district court must find
the defendant obstructed justice by a preponderance of the evidence. United States
v. Wisecarver, 644 F.3d 764, 773 (8th Cir. 2011). Note 4 to § 3C1.1 lists among the
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examples of obstructive conduct “providing materially false information to a
probation officer in respect to a presentence or other investigation for the court.” See
also United States v. Anderson, 68 F.3d 1050, 1055 (8th Cir. 1995) (upholding twolevel enhancement for defendant who provided materially false information to
probation officer during presentence investigation).
On appeal, Zuniga argues the sentencing enhancement is improper because her
allegedly false statements were neither false nor material. She does not dispute that
she made the statements described above to the probation office in connection with
its presentence investigation. We find no clear error in the district court's factual
determination regarding the falsity and materiality of those statements. Accordingly,
the district court did not clearly err in imposing a two-level enhancement for
obstruction of justice.2
Zuniga also contends the district court erred in denying her request for a
reduction in sentence for acceptance of responsibility. U.S.S.G. § 3E1.1(a) permits
a sentencing court to reduce a defendant's offense level by two “[i]f the defendant
clearly demonstrates acceptance of responsibility for his offense.” We have
previously held that a criminal defendant guilty of obstructing justice may only
receive a downward adjustment for acceptance of responsibility in “extraordinary
case[s].” United States v. Honken, 184 F.3d 961, 967 (8th Cir. 1999) (citations
omitted). While “there is no magic formula,” the district court should consider the
following factors:

2

Zuniga also argues the actions culminating in her arrest should not have been
considered by the district court because merely “avoiding or fleeing from arrest” does
not ordinarily constitute an obstruction of justice under Note 5 of § 3C1.1. We
decline to consider this issue because we find the enhancement was warranted due to
Zuniga’s materially false statements alone.
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[T]he timing and nature of the defendant’s obstructive conduct, the
degree of his acceptance of responsibility, whether his obstruction of
justice was an isolated and early incident, whether he voluntarily
terminated his obstructive conduct, whether he admitted and recanted
his obstructive conduct, and whether he assisted in the investigation of
his and others' offenses.
United States v. Stoltenberg, 309 F.3d 499, 500 (8th Cir. 2002) (citing Honken, 184
F.3d at 968–69).
Guided by our Honken factors, the district court concluded Zuniga’s actions
do not meet the “extraordinary case” threshold. In particular, the court found she
created a “moving target of honesty” from the date of her arrest that persisted through
trial, at which point she still did not “honestly admit[] the facts and circumstances that
would be material to her sentencing.” Because the district court weighed the
appropriate considerations in a manner consistent with our established framework,
we conclude the court did not clearly err in denying the request for an acceptance of
responsibility reduction.
III
We therefore affirm the judgment of the district court.
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