FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

INDALECIO CASTRO-PONCE,

Defendant-Appellant.

No. 13-10377

D.C. No.

2:12-cr-01363-SRB-1

OPINION

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted

September 9, 2014—San Francisco, California

Filed October 24, 2014

Before: Stephen Reinhardt, Ronald M. Gould,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Gould
2 UNITED STATES V. CASTRO-PONCE

SUMMARY*

Criminal Law

The panel vacated a sentence enhancement for obstruction

of justice pursuant to U.S.S.G. § 3C1.1 and remanded for

resentencing. 

The panel held that the enhancement was incorrectly

applied because the district court, which expressly found that

the defendant’s testimony was false, did not explicitly find

that the testimony was willful and material. 

COUNSEL

Lynn T. Hamilton (argued), Hamilton Law Office, Mesa,

Arizona, for Defendant-Appellant.

Krissa M. Lanham (argued), Assistant United States

Attorney; Mark S. Kokanovich, Deputy Appellate Chief; and

John S. Leonardo, United States Attorney, District of

Arizona, Phoenix, Arizona, for Plaintiff-Appellee.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. CASTRO-PONCE 3

OPINION

GOULD, Circuit Judge:

During his trial on charges of conspiracy to possess with

intent to distribute methamphetamine, possession with intent

to distribute methamphetamine, and conspiracy to launder

monetary instruments, appellant Indalecio Castro-Ponce

(“Castro-Ponce”) testified in his own defense. His testimony

included elaborate explanationsfor his purportedlysuspicious

activities. Castro-Ponce was convicted of the possession and

conspiracy to possess charges. At the sentencing hearing, the

district court imposed enhancements for obstruction of justice

and for Castro-Ponce’s leadership role in the drug conspiracy. 

Castro-Ponce appeals the obstruction of justice enhancement.

1

We have jurisdiction under 28 U.S.C. § 1291. Because the

district court did not make explicit findings that CastroPonce’s false statements were willful and material, we vacate

the enhancement and remand for re-sentencing.

I

The government’s investigation into Castro-Ponce began

in January 2012 when he was intercepted over a wiretap

speaking with someone thought to be involved in narcotics

trafficking. Pursuant to warrants, the government began

wiretapping Castro-Ponce’s phones, tracking his phones and

car, and physically monitoring his movements over several

months. The surveillance revealed that between February 1

 

1

 Castro-Ponce also appeals the sufficiency of the evidence underlying

his conspiracy and possession convictions, and the propriety of his

leadership role enhancement. We affirm the district court on those issues

in a concurrently filed memorandum disposition.
4 UNITED STATES V. CASTRO-PONCE

and July 10, 2012, Castro-Ponce made at least eighteen trips

to destinations often hundreds of miles from his home in

Yuma County, Arizona, staying at his destinations for only

minutes or hours before returning to Yuma County.

Based on what the government believed was coded

language related to the drug trade in several of CastroPonce’s recorded phone calls, as well as the discovery of

methamphetamine and cash at two of the places to which he

traveled shortly after he left those places, federal agents

arrested Castro-Ponce in July 2012.

Castro-Ponce was indicted for four felony counts: one

count of Conspiracy to Possess with Intent to Distribute more

than 500 grams of Methamphetamine in violation of

21 U.S.C. § 846; two counts of Possession with Intent to

Distribute more than 500 grams of Methamphetamine in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii);

and one count of Conspiracy to Launder Monetary

Instruments in violation of 18 U.S.C. § 1956(h).

During the six-day jury trial, Castro-Ponce testified in his

own defense. He gave explanations for each of the trips the

government’s evidence revealed—traveling to purchase a car

on one occasion; shopping, or buying and selling auto parts

or televisions on others—and testified that his brief stops

were a result of car trouble or for other innocuous reasons. 

Castro-Ponce explained that his recorded conversations

referred to paying his mortgage, the sale of motorcycle parts,

or stolen alfalfa. The jury convicted Castro-Ponce of the

conspiracy to possess count and of the two possession counts,

but acquitted him of the conspiracy to launder money count. 

At the sentencing hearing, the district court found that CastroPonce “clearly lied on the stand with respect to the activities
UNITED STATES V. CASTRO-PONCE 5

that he testified about and the offer of innocent and not

credible explanations for those activities.” Deemingthis false

testimony obstruction of justice, the court imposed a twolevel upward adjustment of Castro-Ponce’s base offense level

pursuant to U.S.S.G. § 3C1.1. His guidelines sentencing

recommendation was then calculated to be life imprisonment,

with a mandatory minimum of ten years. He was sentenced

to 240 months imprisonment.

On appeal, Castro-Ponce challenges the propriety of the

district court’s imposition of the sentencing enhancement for

obstruction of justice.

II

A district court’s factual findings for purposes of an

obstruction ofjustice sentencing enhancement under U.S.S.G.

§ 3C1.1 are reviewed for clear error. United States v. Garro,

517 F.3d 1163, 1171 (9th Cir. 2008) (citing United States v.

Jimenez, 300 F.3d 1102, 1170 (9th Cir. 2007)). The district

court’s characterization of a defendant’s conduct as

obstruction of justice within the meaning of § 3C1.1 is

reviewed de novo. United States v. Cordova Barajas,

360 F.3d 1037, 1043 (9th Cir. 2004).

III

A two-level increase in a crime’s base offense level

applies when a defendant “willfully obstructed or impeded,

or attempted to obstruct or impede, the administration of

justice . . . .” U.S.S.G. § 3C1.1. For perjury to be deemed

obstruction, the district court must find that: “(1) the

defendant gave false testimony, (2) on a material matter,

(3) with willful intent.” Garro, 517 F.3d at 1171. Here, the
6 UNITED STATES V. CASTRO-PONCE

district court expressly found that Castro-Ponce’s testimony

was false, but did not explicitly find that the testimony was

willful or material, saying only that Castro-Ponce “clearly

lied on the stand with respect to the activities that he testified

about and the offer of innocent and not credible explanations

for those activities.” For that reason, we conclude that the

sentencing enhancement was incorrectly applied, and so the

sentence must be vacated.

In United States v. Jimenez-Ortega, 472 F.3d 1102 (9th

Cir. 2007), we confronted a case in which the district court

had characterized the defendant’s testimonyas “so incredible,

in light of all of the evidence, that it was clear to the court

that [he] intended to obstruct or impede justice with [his]

version of the facts. [His] testimony was not the result of any

confusion, mistake, or faulty memory, but an attempt to

willfully obstruct justice.” Id. at 1103. But because there

was no finding on the issue of materiality, we vacated the

enhancement. Id. at 1104.

In Jimenez-Ortega, resolving the tensions between two

divergent doctrinal strands within our circuit, we held that it

is necessary for the district court, rather than the reviewing

court, to make a finding on the issue of materiality. Id. at

1103–04. We reasoned that in light of United States v.

Gaudin, 515 U.S. 506, 522–23 (1995), which held in the

context of a prosecution for making false statements in a

matter within the jurisdiction of a federal agency that the

question of materiality is an issue to be decided by the trier of

fact, district court decisions enhancing sentences for

obstruction of justice must be remanded absent a materiality

finding.
UNITED STATES V. CASTRO-PONCE 7

We follow Jimenez-Ortega today. Moreover, in light of

the government’s comment at oral argument that no case

within our circuit has held that a finding of materiality must

be express, we hold today that an express finding is required. 

To hold otherwise would eviscerate the rule announced in

Jimenez-Ortega. Absent a requirement of express findings on

all three prongs necessary for perjury to amount to

obstruction of justice, we would have to speculate about the

district court’s legal conclusions on obstruction. Rather than

engage in such speculation, we require the fact-finder to make

those determinations explicitly for our review.

Our rule accords with that employed in some of our sister

circuits. The Sixth Circuit has reasoned that presuming that

the elements of perjury are satisfied in the absence of specific

findings in the district court raises the risk of “undermining

a criminal defendant’s constitutional right to testify on his

own behalf.” United States v. Kamper, 748 F.3d 728, 747–48

(6th Cir. 2014) (concluding that a district court’s finding that

defendant had told an “‘obvious lie’” under oath was

insufficient to support obstruction enhancement and that

factual findings concerning materiality and willfulness were

needed). The Tenth Circuit also requires the district court to

make findings on willfulness and materiality for an

obstruction enhancement to be affirmed. See United States v.

Massey, 48 F.3d 1560, 1573–74 (10th Cir. 1995) (reversing

obstruction enhancement where district court had found that

defendant’s testimony was false, but did not identify the false

testimony or make specific findings as to materiality and

willfulness).
8 UNITED STATES V. CASTRO-PONCE

IV

Obstruction of justice is a serious charge, and requires

serious proof. To enhance a guidelines sentencing range

based on obstruction of justice, which often results in more

time served in prison, a district court must make explicit

findings that not only did the defendant give false testimony,

but also that the falsehoods were willful and material to the

criminal charges. We decline to adopt a more forgiving

standard, which could have the unintended consequence of

chilling a criminal defendant’s willingness to take the stand

and give testimony in his or her defense. To require explicit

findings on elements needed for the obstruction of justice

enhancement helps ensure reliability and reviewability of a

sentencing decision. The sentencing enhancement for

obstruction of justice was error on this record, and so the

sentence is vacated. The case is remanded to the district court

for further action not inconsistent with this opinion.

VACATED and REMANDED.