United States v. Dale Manning , 704 F.3d 584 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 11-30150
Plaintiff-Appellee,
D.C. No.
v. 6:10-cr-60068-
HO-1
DALE WAYNE MANNING ,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted
May 10, 2012—Portland, Oregon
Filed November 21, 2012
Before: Alex Kozinski, Chief Judge, Richard C. Tallman,
and Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion
2 UNITED STATES V . MANNING
SUMMARY*
Criminal Law
The panel affirmed the district court’s imposition of a
sentencing enhancement pursuant to U.S.S.G. § 3C1.1 for
obstruction of justice in a case in which the defendant pleaded
guilty to being a felon in possession of a firearm.
The panel wrote that the defendant’s conduct – lying to
pretrial services about his possession of firearms, failing to
appear for a pretrial release revocation hearing, and fleeing to
Mexico – was obstructive “with respect to the investigation,
prosecution, or sentencing” of his felon-in-possession
conviction; and it was immaterial that he intended to obstruct
only the prior child pornography case in which he was on
pretrial release.
COUNSEL
Rosalind M. Lee, Rosalind Manson Lee, LLC, Portland,
Oregon, for appellant Dale Wayne Manning.
S. Amanda Marshall, Kelly A. Zusman and AnneMarie
Sgarlata, Office of the United States Attorney, Portland,
Oregon, for appellee United States of America.
*
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 . MANNING 3
OPINION
PER CURIAM:
Dale Wayne Manning pleaded guilty to possession and
transportation of child pornography. In March 2010, the
district court sentenced him to 11 years in prison, but let him
continue his pretrial release pending a voluntary surrender
date of June 1. Later in March, Pretrial Services Officer
Nicholas Stranieri got a tip that Manning had borrowed some
guns from his brother and might still have them, in violation
of his terms of release. Stranieri asked Manning about the
guns, and Manning said he’d returned them as soon as he
began pretrial release. A week later, Stranieri again asked
Manning about the guns. Manning initially stuck to his story
but eventually admitted he’d had the guns for the past six
months and returned them only recently. Stranieri advised
Manning to call his lawyer, as he’d violated his terms of
release.
A few days later, Stranieri recommended that the district
court revoke Manning’s pretrial release. The court scheduled
a revocation hearing and notified Manning through his
attorney, but Manning didn’t show up. Soon afterwards, he
was arrested in Mexico and expelled to the United States. He
pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the district
court imposed a two-level enhancement pursuant to
Sentencing Guidelines § 3C1.1. Manning appeals,
challenging that enhancement.
* * *
4 UNITED STATES V . MANNING
Guidelines § 3C1.1 provides that,
[i]f (A) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede,
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, increase the offense level by 2 levels.
U.S. Sentencing Guidelines Manual § 3C1.1 (2010).
The district court gave four reasons for imposing a section
3C1.1 enhancement: “defendant’s willful failure to appear as
ordered for a judicial proceeding; his giving false statements
to officials of the Court about firearms; his reacquisition of
one of the firearms; and his flight to Mexico.” The district
court’s “characterization of a defendant’s conduct as
obstruction within the meaning of Section 3C1.1 is reviewed
de novo.” United States v. Allen, 341 F.3d 870, 896 n.38 (9th
Cir. 2003) (internal quotation marks omitted).
1. “As applied by section 3C1.1, the term ‘willfully’
requires that the defendant consciously act with the purpose
of obstructing justice,” United States v. Lofton, 905 F.2d
1315, 1316–17 (9th Cir. 1990) (emphasis and some internal
quotation marks omitted), “with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction,” U.S. Sentencing Guidelines Manual § 3C1.1
(emphasis added). Manning argues that his evasive acts don’t
qualify under section 3C1.1 because they were designed to
obstruct justice in his child pornography case, not his
UNITED STATES V . MANNING 5
subsequent felon-in-possession case, which is the “instant
offense of conviction” and subject of this appeal. But
Manning’s gun possession both violated the terms of his
pretrial release and inculpated him as a felon in possession.
At the time he willfully took evasive actions, the
investigation of his gun possession was already underway, as
that was the basis for his scheduled hearing. Therefore,
Manning’s conduct was obstructive “with respect to the
investigation, prosecution, or sentencing” of his felon-in-
possession conviction for purposes of section 3C1.1. It is
immaterial that he intended to obstruct only the child
pornography case. See United States v. Gilchrist, 658 F.3d
1197, 1206 (9th Cir. 2011).
Further, in discussing section 3C1.1 and the 1998
amendment that added clause (B), we’ve held that “nothing
about the amendment to § 3C1.1 suggests that it was intended
to add a requirement that the obstructive conduct relate
substantively to the offense of which the defendant is
convicted.” United States v. Hernandez-Ramirez, 254 F.3d
841, 843–44 (9th Cir. 2001). Rather, it was meant to resolve
a circuit split and “expand the types of obstructive conduct
warranting an adjustment to include obstructions in closely
related cases.” Id. at 844. By lying to pretrial services about
his possession of firearms, failing to appear for his pretrial
violation hearing and fleeing to Mexico, Manning willfully
obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the investigation,
prosecution or sentencing of the felon-in-possession case.
And that obstructive conduct was connected to the child
pornography convictions—a closely related offense. Because
Manning’s conduct satisfied both subsections (A) and (B)(ii)
of section 3C1.1, the district court did not err in adding a two-
level sentencing enhancement for obstruction of justice under
6 UNITED STATES V . MANNING
section 3C1.1. See U.S. Sentencing Guidelines Manual
§ 3C1.1.
2. “[P]roviding materially false information to a pretrial
services officer, whose job it is to conduct investigations for
the court, constitutes obstruction of justice for purposes of
section 3C1.1, without a specific showing that the falsehood
actually obstructed justice.” United States v. Magana-
Guerrero, 80 F.3d 398, 401 (9th Cir. 1996); see U.S.
Sentencing Guidelines Manual § 3C1.1 cmt. n.4(H). A
“material” statement is one that, “if believed, would tend to
influence or affect the issue under determination.” U.S.
Sentencing Guidelines Manual § 3C1.1 cmt. n.6. Manning
twice tried to mislead Stranieri by telling him he’d returned
the guns to his brother as soon as he began pretrial release.
Relying on United States v. Yell, 18 F.3d 581 (8th Cir. 1994),
Manning argues that his subsequent confession rendered
these false statements immaterial.
The defendant in Yell told his “probation officer that he
distributed one, maybe two, one-half kilos of cocaine. In his
motion to withdraw his guilty plea, however, [he] later
admitted that he ‘minimized the amount of cocaine that [he]
sold . . . .’” Id. at 583. “Because the district court was
accurately apprised of the amount of cocaine involved at the
time of its sentencing determination,” the Eighth Circuit held
“that the comment to the probation officer was [not]
materially false as required for a sentencing enhancement
under [Guidelines] § 3C1.1 . . . .” Id. (emphasis added); see
also United States v. Cardona-Rivera, 64 F.3d 361, 365 (8th
Cir. 1995).
The Eighth Circuit is mistaken. Section 3C1.1 applies not
only where a defendant obstructs justice with respect to his
UNITED STATES V . MANNING 7
prosecution or sentencing, but also where he obstructs “the
investigation . . . of the instant offense of conviction.” U.S.
Sentencing Guidelines Manual § 3C1.1. It doesn’t matter
whether he fooled the district court; it suffices that he fooled
a Pretrial Services officer, or tried to. He need not actually
have obstructed the investigation; it suffices that he
“attempted” to do so. Id.; see id. cmt. n.4(H); Magana-
Guerrero, 80 F.3d at 401. A false statement that, “if
believed, would tend to influence or affect” the investigation,
U.S. Sentencing Guidelines Manual § 3C1.1 cmt. n.6, is
material even if the defendant later comes clean.
Manning also points to section 3C1.1’s application notes,
which state that “[a] defendant’s denial of guilt . . . is not a
basis for application of this provision.” U.S. Sentencing
Guidelines Manual § 3C1.1 cmt. n.2. But Manning didn’t
just deny having the guns; he concocted a story about what
happened to them, claiming he had returned them when he
began pretrial release. This is “more than a simple denial of
guilt and could be treated as an obstruction of justice.”
United States v. Johns, 27 F.3d 31, 35 (2d Cir. 1994) (internal
quotation marks omitted).
3. In addition to making false statements to Stranieri,
Manning both fled to Mexico while on pretrial release and
failed to appear at his revocation hearing, each of which
qualifies as obstruction of justice. See U.S. Sentencing
Guidelines Manual § 3C1.1 cmt. n.4(E) (stating that
obstruction of justice includes “escaping or attempting to
escape from custody before trial or sentencing” and “willfully
failing to appear, as ordered, for a judicial proceeding”);
United States v. Draper, 996 F.2d 982, 986 (9th Cir. 1993)
(upholding a section 3C1.1 enhancement because the
defendant absconded while on pretrial release). Given these
8 UNITED STATES V . MANNING
three independently sufficient reasons for imposing the
enhancement, we need not address whether the district court’s
fourth reason—that Manning reacquired one of the guns after
confessing his false statements to Stranieri—is also sufficient.
AFFIRMED.