F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

I N D A L E C I O C A S T R

O -P O N C E , D efendant-Appellant

. No. 13-10377

D.C. No. 2:12-cr-01363-SRB -1

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na Susan R. B olton, District J udg e, Presiding

Arg ued and Submitted September 9, 2014—San F rancisco, California

F iled October 24, 2014

B efore: Stephen Reinhardt, Ronald M. Gould, and Marsha S. B erz on, Circuit J udg es.

O pinion by

J udg e GouldU N I T E D S T A T E S V

. C A S T R O -P O N C E 2

SUMMARY *

Crim inal Law

The p an e l v a c a

t e d a sentence e nhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1 and remanded for resentencing

.

The panel held t h at the enhancement was incorrectly applied because the district court, w hich ex pressly found that the d efendant’s testimony was fa lse, did not e x plicitly find that the testimony

was willful and material.

COUNSEL

L y nn T. Hamilton (arg

u ed), H amilton L aw Office, Mesa, Ariz ona, for Defendant-Appellant.

Krissa M. L anham (arg ued), Assis t a n t United States Attorney ; Mark S. Kokanovich, Deputy Appellate Chief; a nd J o h n S. L eonardo, United States Attorney
, D istrict o f Ariz ona, Phoenix , Ariz ona, for Plaintiff-Appellee.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. C A S T R O -P O N C E 3

OP INION

GOUL D, Circuit J udg e :
During his trial on c h arg e s of conspiracy to possess with intent to distribute methamphetamine, possession with intent
to d i stribute methamphetamine, and conspiracy to launder monetary instruments, ap pellant I ndalecio Castro-Ponce (“Castro-Ponce”) testified in his own defense. His testimony included elaborate e xp l a

n a t i o n s f o r h i s purportedly suspicious activities. Castro-Ponce was convicted of the possession a nd conspiracy to p ossess charg es. At the sentencing hearing
, the district court imposed enhancements for o bstruction of j u stice and for Castro-Ponce’s leadership r ole in the drug conspiracy

. C a s t r o

- P o n c e a

p p e a ls the obstruction of

justice enhance m e n t

. 1 W e have jurisdiction under 2 8 U.S.C

. § 1291. B ecause the district court did not make ex plicit find i n gs that CastroPonce’s false statements w ere w illful and material, we vacate the enhancement and remand for re-sentencing

.

I

The g overnment’s investig ation into Castro-Ponce b eg an in J anuary 2 012 when he was i n t e r c e pted over a wiretap speaking with someone thoug ht to be involved in narcotics traf ficking

. Pursuant to warrants, the g overnment b eg an wiretapping Castro-Ponce’s phones, tracking his phones a nd
car, and phy sically monitoring his movements over several months. The surveillance r ev e aled that between F ebruary 1

1 Castro

- P o n ce also ap p eals th e su f f icien cy o f th e ev i d en ce u n d erly in g h i s c o nsp i racy an d p o ssessio n co n v ictio n s, an d th e p ro p riety o f h is lead ersh ip ro le en h an cem en t. W e af f irm th e d istrict co u rt o n th o s e issu es in a co n cu rren tly f iled m em o ran d u m

d isp o s itio n

.U N I T E D S T A T E S V

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and J uly 10, 2012, Castro-Ponce made at least eig hteen trips
to destinations often hundreds of miles from his home in Yuma County
, Ariz ona, stay ing at his destinations for o nly minutes or hours before returning to Yuma County

.

B a sed o n w h at the g overnment believed was coded lan gu ag e related to the d rug trade in several of CastroPonce’s recorded phone call s , as well as the discovery o f methamphetamine and cash at two of the places to which he traveled s h o r tly after he left those places, federal ag ents arrested Castro-Ponce in J u ly 2012.

C astro-Ponce w as indicted for four felony counts: o ne count of Conspiracy to Possess with I ntent to Distribute more than 500 g rams of Methamphetamine i n v iolation o f 21 U.S.C. § 846; two counts of P o s s e ssion with I ntent to Distribute more than 500 g rams of Methamp h e t a mine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b )( 1 ) ( A)(viii); and one c ount of Conspiracy to L aunder Monet a ry I nstruments in violation of 18 U.S.C. § 1956(h).

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

own defense. He g ave ex pla nations for each o f the trips the
g overnment’s evidence revealed—traveling to purchase a c ar

on one occasion; shoppin g, or buy ing a nd selling auto parts

or televisions on o th e r s

— a nd testified that his brief stops

were a r e s u lt o f car trouble or for other innocuous reasons. Ca s t r o-Ponce ex plained that h is recorded conversations referred to pay ing his mortg ag e , the sale of motorcy cle p arts,

or stolen alfalfa. The jury c o nvicted 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 w ith respect to the activitiesU N I T E D S T A T E S V

. C A S T R O -P O N C E 5

that h e testified ab o u t and the offer of innocent and not credible ex planations for those activities.” Deemin g this 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 g uidelines sentenc i ng recommendation was then c a lculated to be life imprisonment, wit h a mandatory minimum of ten y ears. He was sentenced to 240 months imprisonment.

O n appeal, Castro-Ponce challeng es the propriety of t h e district c ourt’s imposition o f the sentencing enhancement for obstruction of justice.

II

A district court’s factual finding s for purposes of an

o b s t r u c t i o n o f j u s tice sentencing e nhancement u nder U.S.S

. G

. § 3C1.1 are reviewed for clear error. United States v. Garro
, 517 F .3d 1163, 1171 (9th Cir. 2008) ( c iting U nited States v

. Jimenez
, 3 00 F .3d 1102, 1170 (9th Cir. 200 7)). The district court’s characteriz ation of a def e n dant’s conduct a s ob s truction of justice within the meaning of § 3C1.1 is

rev i ewed de novo

. United States v. Cordova Barajas
, 360 F .3d 1037, 1043 (9th Cir. 2004).

III

A two- l e v e l increase in a crime’s base offense level applies when a defendant “willfully obstructed o r impeded,

or attempted to obstruct or impede, the administr a tion o f justice

. . . .” U.S.S.G. § 3C 1

. 1

. Fo r perjury to be deemed obstruction, the district court must f ind that: “ (1) the defendant g ave false testimony
, (2) on a material ma t t e r, (3) with willful intent.” G arro , 517 F .3d at 1171. Here, theU N I T E D S T A T E S V

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district c ourt ex pressly found that Castro-Ponce’s testimony

was false, but did not ex plicitly find that the tes t imony was willful or material, say ing 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 ex p lanations for those activities.” F or that reason, we conclude that the sentencing enhancement was incorrectly applied, and so the sentence must be vacated.

I n United States v. Jimenez-Ortega
, 47 2 F.3d 1102 (9th Cir. 2 007), we confronted a c a s e i n which the district court had characteriz ed the defendant’s testimony a s “so incredible, in lig ht of al l o f t h e evidence, that it was clear to the court that [he] intended to obstruct or impede justice with [hi s] version of the facts. [ His] testimony was not the result of any confusion, mistake, or faul ty memory , but an attempt to willful l y o bstruct justice.” I d. at 1103. B ut because there

was no finding on the issue of materiali t y , we vacated the enhancement. Id. a t 1104.

I n Jimenez-Ortega
, resolving the tensions between two diverg ent doctrinal strands within our circuit, w e held that it is n ecessary for the district court, rather than the reviewing court, to make a fi n d i n g o n the issue of materiality

. Id. at 1103–04. W e reas o n e d t h at in lig ht of U nited States v

. Gaudin
, 515 U.S. 506, 522–23 (1995), which h e l d in the
contex t of a prosecution for making false stat e m e n ts in a matter within t h e j u r isdiction o f a federal ag ency that the question of materiality is an issue to be decided by the trier o f fact, d istrict c o urt decisions e nhancing sentences for obstruction of justice must be remanded absent a materiality finding

.U N I T E D S T A T E S V

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W e follow Jimenez-Ortega today

. Moreover, in lig h t of the g overnment’s comment a t o ral argu m e n t that n o case within our c ircuit ha s h eld that a finding of materiality must be ex press, we hold today that an ex p ress finding is required. To hold otherwise would eviscerate the rule announced in Jimenez-Ortega

. Absent a requirement of ex press fin ding s on all three prong s nec e s s ary for p erjury to amount to obstruction o f justice, we w ould h a v e to speculate a bout the district c ourt’s leg al conclusions on obstruction. Rather than
eng ag e in such speculation, we require the fact-finder to make those determinations ex plicitly for our review.

Our rule accords with that employ e d in some of our sister circuits. The Six th Circuit has reasoned that presuming that the elements of perjury are satisfied in the absence of specific finding s in the district cou r t raises the r isk of “undermining

a crimi n a l defendant’s constitutional rig ht to testify on his

own behalf.” United States v. Kamper
, 748 F .3d 728, 747–48 (6th Cir. 2014) (concluding that a d istrict court’s finding that defendant h ad told an “‘obvious lie’” under oath was insufficient to support obstruction enhanceme n t and that factual finding s concerning materiality and willfulness were needed). The T enth Circuit a lso requires the d istrict court to make f inding s on willfulness and mate r iality for an obstruction enhancement to be affirmed. See United States v

. Massey
, 48 F .3d 1560, 1573–74 (10th Cir. 1995 ) ( r eversing obstruction enhancement where district court had found that defendant’s testimony w as false, but did not identify the false testimony or make specific finding s as to materi ality a nd willfulness).U N I T E D S T A T E S V

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IV

Obstruction of justice is a serious charg e, and r e q u ires serious proof. To enhance a g uidelines sentencing r ang e based on obstruction of justice, which o ften results in more time served in prison, a district court must make ex plicit finding s that not only did the defendant g ive false testimony
, but also that the falsehoods were willful and material to the criminal charg es. We decline to adopt a more f o r g i v ing standard, w h ich could have the unintended consequence o f chilling a criminal defendant’s willing ness to ta k e t h e stand and g ive testimony in his or her defense. To r equire ex plicit finding s on elements n eeded for the obstruction of justice

e n h ancement helps e nsure reliability and reviewability of a sentencing decision. Th e sentencing enhancement for

o bstruction o f justice was error on this record, an d s o t h e sentence is vacated. T he case is remanded to the district court for further action not inconsistent with this opinion.

VACATED and REMANDED.