United States v. Robert Dehaney , 455 F. App'x 781 ( 2011 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                               OCT 27 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 10-50518
    Plaintiff - Appellee,              D.C. No. CR 09-1056-DSF
    v.
    MEMORANDUM *
    ROBERT JUNIOR DEHANEY,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Central District of California
    Dale S. Fischer, District Judge, Presiding
    Argued and Submitted October 13, 2011
    Pasadena, California
    Before: GOODWIN and WARDLAW, Circuit Judges, and SESSIONS, District
    Judge.**
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **    The Honorable William K. Sessions III, District Judge, United States
    District Court for the District of Vermont, sitting by designation.
    Robert Junior Dehaney appeals his jury conviction and sentence for use of a
    fraudulently obtained passport in violation of 18 U.S.C. § 1542, and aggravated
    identity theft in violation of 18 U.S.C. § 1028A. We have jurisdiction pursuant to
    28 U.S.C. § 1291, and we affirm.
    1.    Read-back of Trial Testimony
    Because Dehaney did not request a read-back instruction, we review for
    plain error his claim that the district court failed to admonish the jury not to accord
    undue weight to read-back testimony. United States v. Stinson, 
    647 F.3d 1196
    ,
    1217 (9th Cir. 2011). Any error in failing to give the admonition we set forth in
    United States v. Newhoff, 
    627 F.3d 1163
    , 1168 (9th Cir. 2010), cert. denied, 131 S.
    Ct. 1838 (2011), did not affect Dehaney’s substantial rights. The jury heard read-
    back testimony on the issue about which they inquired from both prosecution and
    defense witnesses, including direct and cross-examination, in open court, with
    counsel and the defendant present. Dehaney was not prejudiced by the failure to
    give a cautionary instruction regarding read-back testimony.
    2.    Imposition of a Four-Level Enhancement Under U.S.S.G. § 2L2.2(b)(3)(A)
    At sentencing, pursuant to U.S. Sentencing Guidelines Manual §
    2L2.2(b)(3)(A) (2009) (“U.S.S.G.”), the district court applied a four-level increase
    to Dehaney’s base offense level of eight for fraudulently obtaining or using a
    2
    United States passport. Dehaney did not object to this calculation, and we review
    his double-counting claim for clear error. United States v. Guzman-Mata, 
    579 F.3d 1065
    , 1068 (9th Cir. 2009).
    U.S.S.G. § 2L2.2 is the guideline applicable to Dehaney’s fraudulent
    passport conviction. U.S.S.G. § 2B1.6, the guideline applicable to aggravated
    identity theft, provides that the Guidelines sentence is the consecutive two-year
    term of imprisonment required by 18 U.S.C. § 1028A. If a sentence under § 2B1.6
    is imposed in conjunction with a sentence for an underlying offense, any specific
    offense characteristic “for the transfer, possession, or use of a means of
    identification” should not apply when determining the sentence for the underlying
    offense. U.S.S.G. § 2B1.6 cmt. n.2.
    A violation of 18 U.S.C. § 1542 is an underlying offense of 18 U.S.C. §
    1028A. See 18 U.S.C. §§ 1028A(a)(1), (c)(7). “Means of identification” has the
    meaning given the term in 18 U.S.C. § 1028(d)(7). U.S.S.G. § 2B1.6 cmt. n.2.
    Because a United States passport is not a “means of identification,” as defined in
    the statute, see United States v. Melendrez, 
    389 F.3d 829
    , 833-34 (9th Cir. 2004)
    (distinguishing between “means of identification” and “identification documents”
    as defined in § 1028), the § 2B1.6 exception does not apply. Imposition of the §
    3
    2L2.2(b)(3)(A) enhancement to Dehaney’s base offense level for fraudulent use of
    a passport was not error.
    3.    Obstruction of Justice
    The district court found that Dehaney willfully gave false testimony under
    oath when he denied knowing that the identity and means of identification that he
    was using belonged to a real person. It imposed a two-level upward adjustment to
    his offense level pursuant to U.S.S.G. § 3C1.1, which applies “[i]f (A) the
    defendant willfully obstructed or impeded . . . the administration of justice with
    respect to 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; or (ii) a closely related offense . . . .”
    U.S.S.G. § 3C1.1.
    Dehaney’s testimony was relevant to the prosecution and sentencing of the
    fraudulent passport count, and it related to the closely related offense of aggravated
    theft identify, therefore satisfying subsections (A) and (B) of § 3C1.1. The district
    court correctly interpreted § 3C1.1 to permit an obstruction of justice enhancement.
    See United States v. Verdin, 
    243 F.3d 1174
    , 1180 (9th Cir. 2001) (on de novo
    review, rejecting claim that subsection B confined § 3C1.1 to obstructive conduct
    directly related to the offense of conviction). Moreover, the district court’s factual
    4
    finding that Dehaney’s trial testimony was willfully false on a material matter was
    not clear error. See United States v. Harrison, 
    585 F.3d 1155
    , 1161 (9th Cir. 2009)
    (citing United States v. Garro, 
    517 F.3d 1163
    , 1167 (9th Cir. 2008)).
    4.    Acceptance of Responsibility
    The district court declined to award Dehaney a downward adjustment for
    acceptance of responsibility under U.S.S.G. § 3E1.1. “Conduct resulting in an
    enhancement under § 3C1.1 . . . ordinarily indicates that the defendant has not
    accepted responsibility for his criminal conduct. There may, however, be
    extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may
    apply.” U.S.S.G. § 3E1.1, cmt. n.4. Dehaney has not shown that his case is
    extraordinary. Moreover, the district court also specifically found Dehaney’s
    statements of remorse to be unconvincing, and that he did not admit relevant
    conduct of other uses of the false identity. The court did not clearly err. See
    United States v. Rosas, 
    615 F.3d 1058
    , 1066 (9th Cir. 2010).
    AFFIRMED.
    5
    

Document Info

Docket Number: 10-50518

Citation Numbers: 455 F. App'x 781

Judges: Goodwin, Sessions, Wardlaw

Filed Date: 10/27/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023