United States v. Bruce Sampson, Jr. ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30188
Plaintiff-Appellee, D.C. Nos.
1:20-cr-02022-SMJ-1
v. 1:20-cr-02022-SMJ
BRUCE WARREN SAMPSON, Jr.,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Argued and Submitted February 16, 2023
Seattle, Washington
Before: PAEZ and VANDYKE, Circuit Judges, and BENITEZ,** District Judge.
Concurrences by Judge Paez and Judge Vandyke.
Appellant Bruce Sampson, Jr. was convicted by jury of assault with a
dangerous weapon in Indian Country, in violation of 18 U.S.C. §§ 113(a)(3) and
1153, and assault resulting in serious bodily injury in Indian Country, in violation
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
of 18 U.S.C. §§ 113(a)(6) and 1153. Sampson argues the district court erred when
it: (1) denied his motion for a deposition of a material witness before trial; (2)
denied his motion for acquittal of 18 U.S.C. § 113(a)(3), assault with a dangerous
weapon; and (3) made various errors during sentencing. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm in part and reverse
in part. We assume familiarity with the underlying facts and arguments in this
appeal.
1. Sampson makes two arguments relating to the district court’s denial of
his motion for pre-trial deposition of victim E.U. First, Sampson contends that his
counsel was prevented from preparing a full defense. This argument is not
supported by precedent. Neither the Supreme Court nor the Ninth Circuit has
recognized a Sixth Amendment right for defendants to depose or otherwise
interview a witness prior to trial. United States v. Ash, 413 U.S. 300, 316-17
(1973) (holding that the Sixth Amendment does not create a right for defense
counsel to be present during prosecution’s pre-trial witness interviews); United
States v. Black, 767 F.2d 1334, 1338 (9th Cir. 1985) (explaining that there is no
violation of the Sixth Amendment when witnesses voluntarily decline pre-trial
interviews with defense counsel).
Second, Sampson argues E.U.’s “pervasive” memory loss at trial resulted in
Sampson being functionally unable to confront the witness against him. The
2
Supreme Court has addressed whether a Confrontation Clause violation can be
based on a witness’s loss of memory. United States v. Owens, 484 U.S. 554(1988), overruled on other grounds by Crawford v. Washington, 541 U.S. 36, 51
(2004). In Owens, despite gaps in the victim’s memory regarding key events, the
victim witness did testify at trial and was cross-examined by defense counsel. Id.
at 556. The Owens Court determined the victim-witness’s lack of memory did not
cause a Confrontation Clause violation, reasoning that, “[t]he Confrontation Clause
guarantees only ‘an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, the defense
might wish.’” Id. at 559 (citation omitted). The same is true here. Because E.U.
testified at trial and submitted to cross-examination by defense counsel, there was
no Confrontation Clause violation.
2. Next, Sampson challenges the district court’s denial of his motion for
acquittal of 18 U.S.C. § 113(a)(3), assault with a dangerous weapon. Sampson
does not challenge whether a shoe can be considered a dangerous weapon, but
whether there was sufficient evidence to show E.U. was actually kicked during the
assault. The standard for determining whether a conviction is supported by
sufficient evidence is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
3
443 U.S. 307, 319 (1979); United States v. Nevils, 598 F.3d 1158, 1163-64 (9th
Cir. 2010) (en banc) (quoting Jackson). Additionally, “[t]he reviewing court must
respect the province of the jury to determine the credibility of witnesses, resolve
evidentiary conflicts, and draw reasonable inferences from proven facts.” Walters
v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted).
Sampson relies heavily on the testimony of defense witnesses and the
victim’s inconsistent statements for this argument. However, his emphasis on
conflicting witness accounts is misplaced. Given the conflicting testimony of all
the witnesses to the assault—Sampson, his girlfriend Charlene Richards, and victim
E.U.—the verdict signals that the jury found Sampson’s and Richards’s version of
events not credible. We will not disturb this credibility determination on appeal.
Sampson also points to multiple interpretations of the physical evidence to
argue there was reasonable doubt that E.U. was kicked. Although there was no
direct evidence, there was sufficient circumstantial evidence to show that E.U. was
kicked during the assault. We have held that even circumstantial evidence and
inferences drawn therefrom can be enough to uphold a conviction. Maass, 45 F.3d
at 1358 (citation omitted). After reviewing the record in the light most favorable to
the prosecution, we conclude there is sufficient evidence to support Sampson’s
conviction for assault with a deadly weapon.
3. Finally, Sampson alleges several errors occurred during his sentencing.
4
A district court’s interpretation of the Sentencing Guidelines is reviewed de novo,
its application of the Guidelines to facts is reviewed for abuse of discretion, and its
factual findings are reviewed for clear error. United States v. Loew, 593 F.3d
1136, 1139 (9th Cir. 2010) (citation omitted).
First, Sampson challenges the district court’s application of the obstruction
of justice adjustment to his sentence. The district court stated the basis for the
obstruction of justice enhancement was Sampson’s testimony at trial. The
Supreme Court has held that when a district court bases this sentence enhancement
on the defendant’s trial testimony, the court must “make independent findings
necessary to establish a willful impediment to or obstruction of justice . . . under
the perjury definition we have set out.” United States v. Dunnigan, 507 U.S. 87,
95 (1993).
In a line of cases interpreting Dunnigan, we have held that district courts
must make the explicit factual findings necessary for perjury; a reviewing court
cannot justify the enhancement on appeal, and the district court’s failure to make
these findings during sentencing is reversible error. United States v. Herrera-
Rivera, 832 F.3d 1166, 1174-75 (9th Cir. 2016); United States v. Castro-Ponce,
770 F.3d 819, 822-23 (9th Cir. 2014); United States v. Jimenez-Ortega, 472 F.3d
1102, 1103-1104 (9th Cir. 2007). In this case, the district court did not make the
requisite express factual findings required by these cases. Bound by the rule set
5
out in Castro-Ponce, we reverse and remand for resentencing on this ground.
Second, Sampson challenges the district court’s application of the deadly
weapon enhancement to his sentence. However, because the jury’s verdict
regarding assault with a deadly weapon was supported by sufficient evidence, the
application of this upward adjustment was not erroneous.
Third, Sampson challenges the district court’s denial of a downward
adjustment for acceptance of responsibility. When deciding whether to apply this
adjustment, district courts “should consider the defendant’s contrition,” United
States v. Martinez-Martinez, 369 F.3d 1076, 1089 (9th Cir. 2004), and whether the
defendant “manifests a genuine acceptance of responsibility for his actions,”
United States v. McKinney, 15 F.3d 849, 852 (9th Cir. 1994). As long as the
sentencing court did not rely on impermissible factors when making this
determination, “no specific explanation of reasons is required for denying a
defendant a downward adjustment for acceptance of responsibility.” United States
v. Mohrbacher, 182 F.3d 1041, 1052 (9th Cir. 1999) (citation omitted). Here, the
district court made explicit findings on the record that Sampson lacked remorse for
his actions. This reasoning is sufficient.
Finally, Sampson challenges the overall reasonableness of his sentence.
Sampson points to the disparity in sentence length between state and federal courts,
and further argues this disparity unduly impacts Native Americans who are
6
sentenced under federal sentencing guidelines. Sampson appears to argue that the
Major Crimes Act, 18 U.S.C. § 1153 et seq, is unconstitutional under the Equal
Protection Clause because it makes “an explicit classification based on race or
ethnicity.”
Sampson’s argument comparing state and federal sentencing disparities is
foreclosed by United States v. Ringgold, where we held that 18 U.S.C. § 3553(a)(6) does not require consideration of disparities between similarly situated state
and federal defendants. 571 F.3d 948, 951 (9th Cir. 2009). We reasoned that
“allowing the departure solely based on federal-state sentence disparities ‘would
undermine the goal of uniformity that Congress sought to ensure in enacting the
[Sentencing] Guidelines.’” Id. (citation omitted).
Regarding the disparate effect the federal sentencing guidelines have on
Native Americans, parts of this argument have been addressed by both the
Supreme Court and this court. In United States v. Antelope, the Supreme Court
reasoned that classification of Native Americans under the Major Crimes Act was
a political one arising from “the unique status of Indians as a ‘separate people’
with their own political institutions.” 430 U.S. 641, 646 (1977). The Supreme
Court concluded that “Indian” in this context was therefore not an impermissible
racial classification. Id. at 646. Adding to this, we have observed that, “Congress
is not required to eliminate all differences in treatment between Indians and non-
7
Indians so long as all persons subject to federal jurisdiction are treated the same.”
United States v. Yazzie, 693 F.2d 102, 104 (9th Cir. 1982) (citing Antelope, 430
U.S. at 646). Given the above, the district court did not abuse its discretion or
impose an unreasonable sentence based on its refusal to consider the potentially
lesser sentence Sampson could have received in state court.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED for
resentencing consistent with this disposition.
8
FILED
United States v. Sampson, No. 21-30188 JUN 8 2023
MOLLY C. DWYER, CLERK
Paez, J., concurring: U.S. COURT OF APPEALS
I concur in the majority decision. I write separately to express my
agreement with the decision in United States v. Castro-Ponce, which holds that a
sentencing court must make express findings on the elements of perjury before
imposing a sentencing enhancement for obstruction of justice under U.S.S.G.
§ 3C1.1. 770 F.3d 819, 823 (9th Cir. 2014). Our holding in Castro-Ponce is
consistent with Supreme Court precedent and the approaches of our sister circuits.
Furthermore, the Castro-Ponce rule serves an important role in safeguarding a
defendant’s constitutional right to testify on his own behalf, without fear he will be
punished by a longer sentence if found guilty. For these reasons, I disagree with
the concurrence’s attempt to chip away at Castro-Ponce.
The concurrence’s argument is premised on a misreading of United States v.
Dunnigan, 507 U.S. 87 (1993). Dunnigan holds that a sentencing court cannot
impose a § 3C1.1 enhancement without “mak[ing] independent findings necessary
to establish a willful impediment to or obstruction of justice . . . under the perjury
definition” the Court laid out. Id. at 95. The Court’s definition of perjury contains
three elements: 1) that a defendant gave false testimony 2) on a material matter 3)
with willful intent. Id. at 94. The Court explained that, when imposing a § 3C1.1
enhancement for perjury, “it is preferable for a district court to address each
1
element of the alleged perjury in a separate and clear finding,” but it is also
sufficient if a court “makes a finding . . . that encompasses all of the factual
predicates for a finding of perjury.” Id. at 95. The concurrence seizes on this latter
clause, asserting that it allows district courts to impose the enhancement without
making any findings on the elements of perjury.
But there can be no doubt that Dunnigan requires specific findings on the
elements of perjury. The opinion repeatedly says so. It first states that “a trial
court must make findings to support all the elements of a perjury violation in the
specific case.” Id. at 96-97. And then again, it stresses that “the elements of
perjury must be found by the district court with the specificity we have stated.” Id.
at 98 (emphasis added). The concurrence claims that the Court “meant what it
said” by “not requiring explicit findings on each element of alleged perjury,” but
that statement is found nowhere in the opinion. Dunnigan is clear: a trial court can
choose to make “separate and clear” findings on the perjury elements, or a finding
“encompass[ing]” all of the elements at once, but either way, the court must
address every element of the offense.
The factual record in Dunnigan further underscores the specificity of
findings that is required. In Dunnigan, the district court made a global statement
that addressed all three elements of perjury at once, finding that “the defendant was
untruthful at trial with respect to material matters . . . that were designed to
2
substantially affect the outcome of the case.” Id. at 95 (emphasis in original). The
Supreme Court concluded that this statement was sufficiently specific because
“each of the factual predicates of perjury was covered by the [text that the Court]
italicized,” and the record contained evidence supporting those findings. United
States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir. 2002) (citing Dunnigan, 507 U.S.
at 95). The notion that Dunnigan allows a trial court to freely impose the perjury
enhancement without making any specific findings is not consistent with what
happened in that case.
We have consistently interpreted and applied Dunnigan since its inception.
In a series of early cases, we upheld the obstruction of justice enhancement
because the district court made findings on all three elements of perjury. See
United States v. Shannon, 137 F.3d 1112, 1119 (9th Cir. 1998) (affirming district
court’s statement that it “found [defendant’s] testimony to be false, material, and
willful”); United States v. Oplinger, 150 F.3d 1061, 1070 (9th Cir. 1998)
(affirming district court’s finding that the “evidence shows that [the defendant] did
testify as [sic] a material, relevant issue of fact falsely”); see also United States v.
Ancheta, 38 F.3d 1114, 1118 (9th Cir. 1994). And in 2006 and 2007, we vacated a
§ 3C1.1 enhancement in two separate cases because the district court failed to
make findings on materiality. See Jimenez, 300 F.3d at 1171 (“[B]ecause the court
. . . did not expressly find that the false testimony was material, its finding of
3
perjury failed to encompass all factual predicates of perjury as required by
Dunnigan.”); see also United States v. Jimenez-Ortega, 472 F.3d 1102, 1103-04
(9th Cir. 2007) (same).
The concurrence embarks on a misleading detour by citing United States v.
Arias-Villanueva, one of our earlier cases where we upheld a perjury enhancement
despite the district court’s failure to make a finding on materiality. 998 F.2d 1491,
1512-13 (9th Cir. 1993). But Arias-Villanueva was overruled for reasons that had
nothing to do with Dunnigan. As we explained in Jimenez-Ortega, Arias-
Villanueva was abrogated by the Supreme Court’s decision in United States v.
Gaudin, which clarified that materiality is a factual issue that must be decided by
the trier of fact. Jimenez-Ortega, 472 F.3d at 1103-04 (citing United States v.
Gaudin, 515 U.S. 506 (1995)). “Thus, while it was acceptable at the time of Arias-
Villanueva for our court to make a ruling on materiality . . . this was no longer true
when Jimenez was decided.” Id. at 1103. Arias-Villanueva does not show that our
court later changed course in interpreting Dunnigan’s requirements, as the
concurrence claims it does.
This brings us to Castro-Ponce, which is the primary subject of the
concurrence’s critique. Castro-Ponce simply clarifies Dunnigan by explaining that
a sentencing court must make “express findings on all three prongs necessary for
perjury to amount to obstruction of justice.” 770 F.3d at 822. The concurrence
4
greatly overstates the impact and significance of this decision, claiming that our
Circuit “discovered” new requirements for the perjury enhancement. In reality, the
“express” findings rule is the same standard we have always applied, and it is
functionally identical to Dunnigan’s language requiring “specific” findings. 1 The
Castro-Ponce rule was reaffirmed by another panel in 2016. United States v.
Herrera-Rivera, 832 F.3d 1166, 1175 (9th Cir. 2016). Although the Herrera-
Rivera court remarked on the “rigid[ness]” of the Castro-Ponce rule, it also
acknowledged that a requirement of express findings was “consistent with our
precedents prior to Castro-Ponce . . . as well as the approach taken by some of our
sister circuits.” Id. (citations omitted).
On that note, we are not the only circuit that requires express findings on the
elements of perjury. The Castro-Ponce rule “accords with” decisions from the
Sixth Circuit and the Tenth Circuit. Castro-Ponce, 770 F.3d at 822; see United
States v. Kamper, 748 F.3d 728, 747 (6th Cir. 2014) (reversing because the district
court failed to make findings on materiality or intent); United States v. Massey, 48
1
The concurrence contends that prior caselaw only required findings on
materiality, and not on willfulness or false testimony—but that is not true. As
discussed, the materiality requirement was embroiled in dispute because it was
unclear if it was a legal issue or a factual one prior to the Supreme Court’s decision
in Gaudin. See Jimenez-Ortega, 472 F.3d at 1103-04. Our court had always
required “specific” findings on the other two elements, and so does Dunnigan.
See, e.g., Oplinger, 150 F.3d at 1070; Shannon, 137 F.3d at 1119; Ancheta, 38 F.3d
at 1118.
5
F.3d 1560, 1573 (10th Cir. 1995) (noting that Dunnigan requires a district court to
address “all three elements of perjury” and reversing because the district court
failed to address materiality and willfulness). The concurrence cites another case,
United States v. Roberts, where the Sixth Circuit explains that it does not always
“insist on rigid adherence to these rules.” 919 F.3d 980, 990 (6th Cir. 2019). But
even then, the Sixth Circuit emphasized that it would not sustain an enhancement
when a district court “made no findings whatsoever” on the elements of perjury
because doing so would “fail[] to satisfy the most forgiving reading of
Dunnigan.”2 Id. at 990-91.
There are good reasons to adopt such procedural safeguards surrounding the
obstruction of justice enhancement. For one, perjury is a “serious charge” that
often increases a defendant’s prison sentence; it therefore “requires serious proof.”
Castro-Ponce, 770 F.3d at 823. An overzealous application of the obstruction of
2
The concurrence also cites several cases from other circuits without clearly
explaining why. The majority of these cases do not conflict with our holding in
Castro-Ponce, and conversely, some are supportive. See, e.g., United States v.
Smith, 62 F.3d 641, 647 (4th Cir. 1995) (reversing enhancement where district
court failed to specifically find the three elements of perjury or to “make a single
global finding that encompassed the three essential elements”); United States v.
Tracy, 36 F.3d 199, 203 (1st Cir. 1994) (upholding perjury enhancement where the
district court made “each of the three ultimate findings of inaccuracy, willfulness,
and materiality”); United States v. Rodriguez, 995 F.2d 776, 779 (7th Cir. 1993)
(upholding enhancement where district court made sufficient findings as to false
testimony, materiality, and willfulness).
6
justice enhancement can also infringe on the constitutional right of criminal
defendants to testify in their own defense. See Rock v. Arkansas, 483 U.S. 44, 51
(1987) (citation omitted). Dunnigan recognized that risk and sought to protect
against the enhancement becoming “automatic.” Dunnigan, 507 U.S. at 98. We,
too, should “decline to adopt a more forgiving standard” that might “chill[] a
criminal defendant’s willingness” to take the stand. Castro-Ponce, 770 F.3d at
823.
Finally, the Castro-Ponce rule also helps ensure “reliability and
reviewability” of the sentencing decision on appeal. Id. The case before us
perfectly illustrates the practical necessity of the rule. The district court’s only
finding in support of imposing a § 3C1.1 enhancement was that “the jury
necessarily found that [Sampson] perjured himself” by rendering a guilty verdict.
This statement is woefully inadequate to permit meaningful review of whether
Sampson’s testimony met the elements of perjury. Castro-Ponce ensures that an
appellate court will not have to “rely on inference to deduce” the reasons why the
district court imposed the enhancement. Roberts, 919 F.3d at 991.
I respectfully disagree with the arguments in the concurrence, and I see no
need to reexamine our holding in Castro-Ponce.3
3
The concurrence goes to great lengths to attack my interpretation of Dunnigan
and our cases applying Dunnigan. I invite the reader to review the cited cases and
reach their own conclusions. I have no doubt that the reader will find Castro-
7
Ponce consistent with longstanding precedent from our circuit and our sister
circuits.
8
FILED
United States v. Sampson, No. 21-30188 JUN 8 2023
MOLLY C. DWYER, CLERK
VANDYKE, Circuit Judge, concurring: U.S. COURT OF APPEALS
I agree with the majority decision, and write separately only to spotlight our
court’s mistaken rule dating from 2014 that a sentencing court must make explicit
findings on all elements of perjury before it imposes a Section 3C1.1 sentencing
enhancement. Nothing in the text or application notes of that section or in Supreme
Court precedent requires such explicit findings. No other circuit has followed us on
this lonesome detour. And our own court has only resignedly imposed the
requirement since 2014, despite recognizing that it likely creates “too rigid a rule.”
United States v. Herrera-Rivera, 832 F.3d 1166, 1174 (9th Cir. 2016).
American sentencing courts historically enjoyed broad discretion in how to
impose extra penalties on defendants who had perjured themselves at trial. E.g.,
Seymour Harris, Principles of Criminal Law 175 (1880). Nothing in the text of
Section 3C1.1 or its application notes as published in 1987 cabined this discretion
by requiring a sentencing court to make explicit findings as to the perjury elements
when it applies the enhancement. See U.S.S.G. § 3C1.1 (1987). Nor has any such
requirement been added to the section’s text or application notes since then. See
U.S.S.G. § 3C1.1 (2021).
Supreme Court precedent does not compel a conclusion that such a
requirement lies hidden somewhere behind the plain text of Section 3C1.1. In
United States v. Dunnigan, the Supreme Court clarified that, if a defendant objects
to imposition of the enhancement, Section 3C1.1 requires a sentencing court to
“review the evidence and make independent findings necessary to establish a willful
impediment to or obstruction of justice, or an attempt to do the same, under the
perjury definition we have set out.” 507 U.S. 87, 95 (1993). But the Court left open
two different routes for a sentencing court to meet this obligation. First, it could
make explicit, separate, and clear findings for each element of the alleged perjury.
Id. Second, it could make a finding that “encompasses all of the factual predicates
for a finding of perjury” when reviewed in light of the record. Id.In the years immediately following Dunnigan, our sister circuits had no trouble
understanding that the Court meant what it said when it preserved that second route
of not requiring explicit findings on each element of alleged perjury. See, e.g.,
United States v. Tracy, 36 F.3d 199, 203 (1st Cir. 1994); United States v. Boggi, 74
F.3d 470, 479 (3d Cir. 1996); United States v. Smith, 62 F.3d 641, 647 (4th Cir.
1995); United States v. Laury, 985 F.2d 1293, 1308 (5th Cir. 1993); United States v.
Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993); United States v. Massey, 48 F.3d 1560,
1573 (10th Cir. 1995); United States v. Dobbs, 11 F.3d 152, 155 (11th Cir. 1994).
Nor did our own court initially diverge from this consensus. The first time we
applied Dunnigan, we noted that the Court in that case upheld a perjury enhancement
even though the sentencing court had not even designated any specific item of false
2
testimony, and we thus concluded that a sentencing court need not explicitly make
such findings provided “the record supports the district court’s finding of perjury.”
United States v. Arias-Villanueva, 998 F.2d 1491, 1512 (9th Cir. 1993), overruled
on other grounds as recognized in United States v. Kahre, 737 F.3d 554 (9th Cir.
2013). We repeatedly reaffirmed that understanding of Dunnigan in subsequent
years, holding that “although it is preferable for a district court to address each
element of the alleged perjury in a separate and clear finding, this is in no way
required.” United States v. Oplinger, 150 F.3d 1061, 1071 (9th Cir. 1998) (cleaned
up); see also United States v. Sager, 227 F.3d 1138, 1144 (9th Cir. 2000) (upheld
despite no explicit finding).
But we started to change our mind in 2007. In United States v. Jimenez-
Ortega, we correctly extended the Supreme Court’s reasoning from twelve years
earlier in United States v. Gaudin, 515 U.S. 506 (1995), to require that the sentencing
court, as factfinder, make a finding as to the materiality element of perjury before
applying the Section 3C1.1 enhancement. 472 F.3d 1102, 1103–04 (9th Cir. 2007)
(per curiam). Without further analysis, though, the Jimenez-Ortega panel then
assumed without saying that this also meant the materiality finding needed to be
explicit rather than discernible from the record. Id.No other circuit court adopted that requirement before we plunged further
down the path away from a natural reading of Dunnigan in United States v. Castro-
3
Ponce, 770 F.3d 819 (9th Cir. 2014). There, for the first time after more than two
decades of reading and rereading Dunnigan, our court discovered a requirement that
a sentencing court must make explicit findings not only as to materiality but as to all
perjury elements before it permissibly could apply the Section 3C1.1 enhancement:
[I]n 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.
Id. at 822. The Castro-Ponce court did not ground this new requirement in the text
of Section 3C1.1 or try to reconcile it with the outcome of Dunnigan itself. Nor did
it explain how the requirement could have been necessarily implied in Jimenez-
Ortega when our court had upheld a Section 3C1.1 enhancement just months earlier
in a case where the sentencing court had not made express findings on all three
perjury elements. United States v. Armstrong, 749 F.3d 842, 848 (9th Cir. 2014).
Judge Paez has a more modest view of Castro-Ponce than the Castro-Ponce
panel itself had, reading the case as consistent with Dunnigan, our preceding
caselaw, and the approaches of our sister circuits. But that view is distorted by
misunderstandings of the cases he cites and of how they fit into a broader context of
relevant cases he does not cite.
4
Those misunderstandings start with Dunnigan itself. Judge Paez assumes that
when the Court said a sentencing court must “make independent findings” separate
from a jury guilty verdict, the Court secreted into that language an additional two
requirements that those findings be specific and express. He reads Dunnigan to
“repeatedly say[] so,” though he does not reference any language where the Court in
fact said so even once. He instead infers those unstated requirements from two case
quotations, neither of which supports his reading. First, the Court held that the “trial
court must make findings to support all the elements of a perjury violation in a
specific case.” Yet nothing in that language necessitates specific and express
findings. Second, the Court held that “the elements of perjury must be found with
the specificity we have stated.” Yet the Court in preceding pages had expressly
identified two permissible degrees of specificity: (1) separate and clear findings on
each element or (2) a general finding that encompasses all of the factual predicates
for a finding of perjury. 507 U.S. at 95.
Perhaps sensing just how thin a reed of support those quotations offer, Judge
Paez contends that Dunnigan’s factual record “further underscores the specificity of
findings that is required.” It does—but not in the way he thinks it does. The
sentencing court in Dunnigan applied the enhancement with a cursory recitation of
the perjury elements and a bald reliance on the guilty verdict. Dunnigan, 507 U.S.
at 91, 95. It was only when the Court reviewed the sentencing court’s statement
5
against the record that it found “ample support for the District Court’s finding” and
affirmed it. Id. at 95–96. Judge Paez posits that the “notion that Dunnigan allows a
trial court to freely impose the perjury enhancement without making any specific
findings is not consistent with what happened in that case.” Respectfully, that is
what happened in that case.
Judge Paez further asserts that our court’s “consistent[]” interpretation of
Dunnigan in the decades preceding Castro-Ponce also confirms the counterintuitive
position that the Court explicitly permitted a sentencing court to make a general
finding of perjury supported by the record, only to then implicitly render that option
a nullity by requiring specific and express findings. But he again misreads the cases
he cites. He reads United States v. Shannon to have required specific and express
findings, but our court there only required that findings be “independent” from a
jury’s guilty verdict. 137 F.3d 1112, 1119 (9th Cir. 1998) (per curiam). He reads
United States v. Oplinger for the same proposition, but it states the exact opposite:
“although it is preferable for a district court to address each element of the alleged
perjury in a separate and clear finding, this is in no way required.” 150 F.3d at 1070.
And he reads United States v. Ancheta the same way, but our court there merely held
that the sentencing court’s moderately specific findings were sufficient to satisfy
Dunnigan—not that they were necessary. 38 F.3d 1114, 1118 (9th Cir. 1994).
A survey of our relevant caselaw beyond the few cases Judge Paez cites only
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confirms that our court consistently—at least seven times!—did not require specific
and express findings for each of the perjury elements up until Castro-Ponce itself
imposed that requirement for the first time. See United States v. Robinson, 63 F.3d
889, 892 (9th Cir. 1995); United States v. Garcia, 135 F.3d 667, 671 (9th Cir. 1998);
United States v. Monzon-Valenzuela, 186 F.3d 1181, 1184 (9th Cir. 1999); Sager,
227 F.3d at 1146; United States v. Cordova Barajas, 360 F.3d 1037, 1043 (9th Cir.
2004); United States v. Armstrong, 620 F.3d 1172, 1176–77 (9th Cir. 2010); United
States v. Taylor, 749 F.3d 842, 848 (9th Cir. 2014). Some of those cases postdate
Gaudin, and they collectively belie any assertion that “the ‘express’ findings rule is
the same standard we have always applied.”
Lastly, Judge Paez says other circuits also “require[] express findings on the
elements of perjury” and that Castro-Ponce accords with their decisions. But his
argument there fails in three ways.
First, he contends the Sixth and Tenth Circuits impose that requirement, even
though those circuits have expressly said otherwise. The Sixth Circuit recently has
at least twice affirmed that the second Dunnigan route is still valid: a sentencing
court preferably should, but need not, make specific and express findings as to the
perjury elements. United States v. Castro, 960 F.3d 857, 870–71 (6th Cir. 2020);
United States v. Roberts, 919 F.3d 980, 990–91 (6th Cir. 2019). The Tenth Circuit
has made the same point twice—including when applying the decision Judge Paez
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cites for the opposite conclusion. See United States v. Paup, 933 F.3d 1226, 1235
(10th Cir. 2019); United States v. Flonnory, 630 F.3d 1280, 1287 (10th Cir. 2011).
Second, he cites three cases for the proposition that the First, Fourth, and
Seventh Circuits support Castro-Ponce’s conclusion that Dunnigan requires specific
and express findings on all three perjury elements. But none of the cited cases
actually does. The Fourth Circuit case he cites reversed an enhancement because,
as it expressly stated, the sentencing court did not satisfy Dunnigan’s requirements
by making either specific findings or a single global finding that encompassed the
perjury elements. See United States v. Smith, 62 F.3d 641, 647 (4th Cir. 1995).
Meanwhile, the First and Seventh Circuit cases he cites note simply that the
sentencing court’s specific findings there sufficed to satisfy Dunnigan, not that they
were necessary. See United States v. Tracy, 36 F.3d 199, 201–03 (1st Cir. 1994);
United States v. Rodriguez, 995 F.2d 776, 779 & n.3 (7th Cir. 1993). All three
circuits have subsequently and unmistakably held that Dunnigan does not require
specific and express findings. United States v. Teganya, 997 F.3d 424, 435–36 (1st
Cir. 2021); United States v. Savage, 885 F.3d 212, 225–26 (4th Cir. 2018); United
States v. Price, 28 F.4th 739, 757 (7th Cir. 2022).
Third, a survey of the remaining circuits finds none that requires specific and
express findings of perjury for all cases like Castro-Ponce does. See United States
v. Rosario, 988 F.3d 630, 633–34 (2d Cir. 2021) (per curiam); United States v. Gray,
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942 F.3d 627, 633 (3d Cir. 2019); United States v. Ajayi, 64 F.4th 243, 251 (5th Cir.
2023); United States v. Garcia, 61 F.4th 628, 631–32 (8th Cir. 2023); United States
v. Stahlman, 934 F.3d 1199, 1227–28 (11th Cir. 2019); United States v. Montague,
40 F.3d 1251, 1256 (D.C. Cir. 1994).
Almost a decade has passed since Castro-Ponce. Yet to borrow a line from a
Green Day song that won a Grammy around the same time our court first set off on
its own path, we still walk a lonely road, and we walk alone. No other circuit court
appears to have followed our lead in reinterpreting Dunnigan to conflict with its own
result. To the contrary, at least the Sixth and Eleventh Circuits have since then
reaffirmed that Dunnigan does not require an explicit finding on any perjury prong.
United States v. Stahlman, 934 F.3d 1199, 1227–28 (11th Cir. 2019); United States
v. Roberts, 919 F.3d 980, 990–91 (6th Cir. 2019). And our own court has itself
doubted the correctness of Castro-Ponce’s reading of Dunnigan, recognizing in
Herrera-Rivera that “[a] good argument can be made that Castro-Ponce applies too
rigid a rule.” 832 F.3d at 1174. We should fix this unnecessary requirement and
bring our court in line with the other circuits. Or I suppose the Supreme Court could
do it for us.
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