United States of America v. Jesus Rodriguez-Penuelas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESUS RODRIGUEZ-PENUELAS,
Defendant-Appellant.
No. 18-50217
D.C. No.
3:18-cr-01225-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted November 12, 2019**
Pasadena, California
Before: FERNANDEZ and M. SMITH, Circuit Judges, and OTAKE,*** District
Judge.
Defendant-Appellant Jesus Rodriguez-Penuelas appeals the sentence he
received after a jury convicted him of attempted unlawful reentry in violation of 8
* 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 Jill Otake, United States District Judge for the District
of Hawaii, sitting by designation.
FILED
NOV 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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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