UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4300



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BELKIS DIAZ,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-04-96-1)


Submitted:   July 7, 2006                 Decided:   August 21, 2006


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


David B. Smith, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, James P.
Gillis, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Belkis    Diaz   appeals     the   sixty-three   month   sentence

imposed after she pleaded guilty to one count of making a false

statement in a passport application, in violation of 18 U.S.C.

§§ 1542, 2 (2000).    Because we conclude that Diaz’s offense level

was improperly enhanced for obstruction of justice, we vacate her

sentence and remand for resentencing.

          On appeal, Diaz raises four assertions of error in the

determination of her sentence.       She first argues that the district

court erred in enhancing her offense level for obstruction of

justice and denying her a reduction in offense level for acceptance

of responsibility.     The court’s decision arose from a statement

Diaz gave to officers after her arrest, in which she stated that

she committed the passport application fraud under the direction of

an individual named Jose Luis Rodriguez.             The district court

concluded that Diaz’s statement regarding Rodriguez was false and

that the Government expended significant resources attempting to

locate Rodriguez based upon that statement,1 which supported an

enhancement   for   obstruction   of    justice   and   the   denial   of   a

reduction for acceptance of responsibility.


     1
      At sentencing, the Assistant United States Attorney stated
that the Government was unable to locate Rodriguez at the place of
employment provided by Diaz. On appeal, counsel for Diaz states
that, with a single telephone call, he verified Rodriguez’s
employment during the relevant time period at the taxicab company
identified by Diaz, and obtained other information regarding
Rodriguez.

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          We   review   a    district      court’s      determination     that   a

defendant obstructed justice for clear error.                United States v.

Hughes, 

, 560 (4th Cir. 2005).              “A finding is clearly

erroneous when although there is evidence to support it, the

reviewing court on the entire record is left with the definite and

firm conviction that a mistake has been committed.”              United States

v. U.S. Gypsum Co., 

, 395 (1948).                  The Sentencing

Guidelines2 provide for a two-level increase in a defendant’s

offense level “[i]f (A) the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of

justice during the course of the investigation, prosecution, or

sentencing of the instant offense of conviction, and (B) the

obstructive conduct related to (i) the defendant’s offense of

conviction and any relevant conduct.”            USSG § 3C1.1.

          “[P]roviding       a    materially    false    statement   to    a   law

enforcement officer that significantly obstructed or impeded the

official investigation or prosecution of the instant offense” is

specifically   listed   as       an   example   of   conduct   for   which     the

enhancement is appropriate. USSG § 3C1.1, comment. (n.4(g)).                     A

false statement regarding the culpability of a co-defendant is

sufficient to support the enhancement.               United States v. Kiulin,

, 460 (4th Cir. 2004).




     2
      U.S. Sentencing Guidelines Manual (USSG) (2003).

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            We conclude that the district court’s decision to impose

the obstruction of justice enhancement was clearly erroneous.

Although a district court is given broad discretion in the type of

information it may consider at sentencing, 18 U.S.C. § 3661 (2000),

the     information    offered   by     the    Government      to    support     the

enhancement in this case is insufficient.                  Significantly, the

Government offered no testimony to establish the falsity of Diaz’s

statement or the significance of the impairment that the statement

caused to the investigation.       As the issue of the falsity of Diaz’s

statement was disputed, the district court erred in relying on mere

proffers from the AUSA to support the enhancement.                    Because the

court’s denial of a reduction for acceptance of responsibility was

based     upon   its   finding   that    Diaz       obstructed      justice,   this

conclusion is also erroneous.3

            Diaz   also   argues   that       the   district     court   erred    in

enhancing her offense level because the children whose identities

were used in the fraud scheme were vulnerable victims, pursuant to

USSG § 3A1.1(b)(1), and in applying a two-level enhancement based

on the use of a minor in the commission of the offense, pursuant to




      3
      The district court’s denial of a reduction in Diaz’s offense
level for acceptance of responsibility naturally followed its
conclusion that she obstructed justice. See USSG § 3E1.1, comment.
(n.4). While we find that conclusion was erroneous, we express no
opinion on whether Diaz is entitled to a reduction in her offense
level for acceptance of responsibility on remand.

                                      - 4 -
USSG § 3B1.4.    We have considered Diaz’s arguments and find that

the district court properly applied these enhancements.

          Diaz’s    final    argument    is   that     her     sentence    is

unreasonable under Booker because the district court failed to

consider the factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2006), other than the Guidelines.        Because we conclude that the

Guidelines range was not properly determined, Diaz’s sentence is

unreasonable.    See United States v. Green, 

, 457 (4th

Cir.) (sentence resulting from error in construing or applying the

Guidelines will be found unreasonable and vacated), cert. denied,

(2006).

          We    therefore   vacate   Diaz’s   sentence   and    remand    for

resentencing. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                     VACATED AND REMANDED




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