United States v. Kirisimasi Masuisui ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10349
Plaintiff-Appellee, D.C. No.
1:14-cr-00173-DKW-1
v.
KIRISIMASI MASUISUI, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted February 15, 2022
Honolulu, Hawaii
Before: HAWKINS, R. NELSON, and FORREST, Circuit Judges.
Defendant Kirisimasi Masuisui (“Masuisui”) appeals his conviction and 292-
month sentence for conspiring to possess/distribute methamphetamine and cocaine
and possession with intent to distribute methamphetamine. We affirm.
There was no abuse of discretion in denying Masuisui’s motion to withdraw
his guilty plea. Masuisui did not demonstrate a “fair and just reason” for requesting
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
withdrawal of his plea nearly two years after its entry. See Fed. R. Crim. P.
11(d)(2)(B); United States v. Ensminger, 567 F.3d 587, 590‒91 (9th Cir. 2009). The
district court conducted an adequate investigation into any medications Masuisui
was taking at the time of the plea colloquy, and there is no indication from the record
that the plea was not voluntary, knowing, and intelligent or that the medications
otherwise impaired Masuisui’s ability to participate in the proceedings. See United
States v. Carter, 795 F.3d 947, 952‒55 (9th Cir. 2015).
Nor did the district court clearly err in finding Masuisui had obstructed justice
and applying a two-level enhancement for such conduct at sentencing. The district
court properly relied on evidence that had been submitted in connection with the
government’s motion for detention in which two witnesses indicated Masuisui and
his wife had sent a verbal and written communication to co-defendant Auelua. The
court found that this communication, even if not a direct threat, was at least an
attempt to unlawfully influence a co-defendant/witness not to cooperate with
authorities. See U.S.S.G. § 3C1.1. Although the witnesses did not personally appear
at the detention hearing, their statements given to the government were substantially
similar, and the court found them reliable. See United States v. Berry, 258 F.3d 971,
976 (9th Cir. 2001) (court may rely on hearsay at sentencing).
Likewise, there was no clear error in finding Masuisui was an organizer or
leader of a conspiracy involving five or more participants. See U.S.S.G. § 3B1.1(a).
2
The court found that at least five individuals (including Masuisui himself) were
involved in the conspiracy, most of whom Masuisui named in either his plea
colloquy or post-arrest statement. The district court also adequately set forth reasons
for finding Masuisui was an organizer or leader within the conspiracy, including his
control over shipments between San Francisco and Hawaii, setting prices, and
directing others where and when to transport drugs and/or currency. See United
States v. Rivera, 527 F.3d 891, 908‒09 (9th Cir. 2008).
There was no abuse of discretion in denying Masuisui’s motion for a seventh
continuance of his sentencing, which ultimately took place nearly three years after
entering his guilty plea. See United States v. Walter-Eze, 869 F.3d 891, 907‒08 (9th
Cir. 2017). Nor did the court violate Rule 32, which requires the court at sentencing
to “verify that the defendant and the defendant’s attorney have read and discussed
the presentence report [“PSR”] and any addendum to the report.” Fed. R. Crim P.
32 (i)(1)(A). Although Masuisui’s sentencing counsel stated she had not gone over
the PSR “page by page” with him, she further indicated she had reviewed the PSR
with him “in general” and believed he knew and understood its contents.
Even if this were considered error, any such error was harmless because
Masuisui’s prior attorneys had filed objections to the PSR, which his new attorney
agreed with and argued at sentencing. Masuisui has not affirmatively alleged that
he failed to review the PSR with prior counsel. In any event, Masuisui cannot
3
demonstrate that there were material additional objections that could have been
made to the PSR which resulted in prejudice to him. See United States v. Soltero,
510 F.3d 858, 862‒64 (9th Cir. 2007) (per curiam); United States v. Davila-
Escovedo, 36 F.3d 840, 844 (9th Cir. 1994). 1
AFFIRMED.
1
Appellee’s motion to strike portions of the opening brief (Dkt. Entry No. 28) is
denied as moot.
4