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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-2268
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE IGNACIO MONTANO-SILVA,
a/k/a Waldemar John Lugo, Etc.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(February 9, 1994)
Before POLITZ, Chief Judge, JOLLY and DUHÉ, Circuit Judges.
PER CURIAM:
Jose Ignacio Montano-Silva applied for a passport under the
name of Waldemar John Lugo. The authorities discovered that he was
not Lugo and arrested him, recovering a firearm during a search of
his residence. At this point Montano-Silva identified himself as
Primitivo Castro, a Venezulalan national, an identity he asserted
throughout two detention hearings. It was only after an extensive
investigation that the government discovered Montano-Silva's real
identity.
Montano-Silva pleaded guilty to the three counts for which he

was indicted: possession of a firearm by an illegal alien in
violation of 18 U.S.C. § 922(g)(5); making a fraudulent statement
in a matter within the jurisdiction of the United States in
contravention of 18 U.S.C. § 1001; and making a false statement in
an application for a passport in violation of 18 U.S.C. § 1542.
Sentenced to 21 months imprisonment, he timely appealed.
Applying the Sentencing Guidelines, the district court
increased Montano-Silva's offense level for obstructing justice by
his claim of a false identity. Montano-Silva challenges that
enhancement on the grounds that his falsehood was not material to
the investigation. We otherwise conclude.
By claiming to be Primitivo Castro at his detention hearings,
Montano-Silva provided "materially false information to a . . .
magistrate" within the meaning of Application Note 3(f) to U.S.S.G.
§ 3C1.1. It would be a rare situation in which a defendant's
identity is not material.1 It is material here. Castro, another
Venezualan national, did not commit the charged offenses;
Montano-Silva did. Further, a defendant's personal history is
always pertinent to sentencing; the court must know whom it is
sentencing in order to sentence properly. Montano-Silva previously
had been arrested on a narcotics charge, grist for an upward
1United States v. Blackman, 904 F.2d 1250, 1259 n.11 (8th Cir.
1990) ("Clearly the identification of the defendant is a material
fact."); see United States v. McDonald, 964 F.2d 390 (5th Cir.
1992) (affirming an obstruction of justice enhancement for giving
a false name to the magistrate).
2

departure.2 Additionally, he obstructed justice by giving a false
name to law enforcement authorities, causing the expenditure of
considerable time and resources in the determination of his true
identity.3 The district court's adoption of the Presentence Report
and rejection of Montano-Silva's objections constitutes sufficient
findings to support the enhancement.4
Montano-Silva also contests the district court's decision to
assign an offense level of 14 to the firearm possession conviction.
He maintains that the offense level should have been set at six,
the level accorded a defendant who possesses the weapon "solely for
lawful sporting purposes or collection . . . ."5 Montano-Silva did
not suggest either of these mitigating circumstances to the trial
judge; rather, he contended that he possessed the gun for personal
security. The district court's implicit determination that he
failed to carry his burden of proof is not clearly erroneous.6
AFFIRMED.
2United States v. Thomas, _____ F.3d _____, 1993 WL 517020
(7th Cir. 1993).
3See U.S.S.G. § 3C1.1, Application Notes 3(g), 4(a); McDonald.
4United States v. Sherbak, 950 F.2d 1095 (5th Cir. 1992).
5U.S.S.G. § 2K2.1(b)(2).
6See United States v. Alfaro, 919 F.2d 962 (5th Cir. 1990)
(district court's factual findings are reviewed for clear error;
the party seeking an adjustment in sentence level has the burden of
proving the factual predicate justifying the adjustment).
3