FILED
NOT FOR PUBLICATION FEB 20 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50402
Plaintiff - Appellee, D.C. No. 2:11-cr-00262-GHK-1
v.
MEMORANDUM*
RICHARD ALBERT WUERFEL,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Argued and Submitted February 5, 2014
Pasadena, California
Before: PREGERSON and WARDLAW, Circuit Judges, and BURRELL, Senior
District Judge.**
Appellant Richard Wuerfel appeals the district court’s denial of his motion
to suppress evidence seized during a warranted search of his home and his sentence
of 72 months imprisonment followed by a lifetime term of supervised release. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Garland E. Burrell, Jr., Senior District Judge for the
U.S. District Court for the Eastern District of California, sitting by designation.
have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We affirm in
part, reverse in part, vacate Wuerfel’s sentence, and remand.
Suppression of Evidence
We reject Wuerfel’s argument that the July 30, 2009 search warrant was not
supported by probable cause since the affidavit submitted in support of the search
warrant “created a ‘fair probability’ that [child pornography] would be found in
[Wuerfel’s home].” United States v. Krupa, 658 F.3d 1174, 1178 (9th Cir. 2011)
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (stating the probable cause
standard for issuance of a search warrant). The affidavit evinced that in May of
2008, an individual using Wuerfel’s name paid a monthly subscription to access
child pornography on multiple occasions from an internet connection associated
with Wuerfel’s then residence. Further, after Wuerfel moved, he sought access to
additional child pornography, as shown by his email to a second child pornography
website in October 2008 and his 51 attempts to download child pornography
videos from the Federal Bureau of Investigation Web Lure website in the spring of
2009. Therefore, the district court did not err in denying Wuerfel’s suppression
motion.
Wuerfel also argues the seized evidence should be suppressed because the
government violated certain terms of the July 30, 2009 search warrant. However,
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Wuerfel did not raise this ground in his suppression motion, and he has given no
reason for his failure to do so. Accordingly, the issue is waived. United States v.
Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002).
Obstruction of Justice Enhancement
Wuerfel contends the district court erred in applying a two-level sentencing
enhancement for obstruction of justice under U.S.S.G. § 3C1.1 because he lacked
the specific intent to obstruct justice.
“Sentencing Guidelines § 3C1.1 contains a clear mens rea requirement that
limits its scope to those who ‘willfully’ obstruct or attempt to obstruct the
administration of justice.” United States v. Lofton, 905 F.2d 1315, 1316 (9th Cir.
1990). “As applied by section 3C1.1, the term ‘willfully’ requires that the
defendant ‘consciously act with the purpose of obstructing justice.’” Id. at 1316-
17 (quoting United States v. Stroud, 893 F.2d 504, 507 (2d Cir. 1990)).
Here, we cannot “presume the district court enhanced [Wuerfel’s] sentence
for obstruction of justice based on willful conduct” given the sentencing record.
United States v. Garner, 988 F.2d 82, 84 (9th Cir. 1993). In discussing Wuerfel’s
failure to self-surrender following the death of his wife, the district court stated that
it did not disagree that “it is tough to imagine what . . . mental state” a person in
Wuerfel’s position might have had.
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Since we cannot determine from the record whether the district court
properly “consider[ed] the mens rea requirement for an upward adjustment for
willful obstruction of justice,” the district court’s application of this enhancement
is reversed, Wuerfel’s sentence is vacated, and the case is remanded to the district
court to determine whether to apply the obstruction of justice enhancement
consistent with this disposition. Gardner, 988 F.2d at 85.
Wuerfel’s Sentence
Wuerfel challenges both the length of his sentence and his lifetime term of
supervised release.
The district court did not abuse its discretion in imposing a lifetime term of
supervised release. United States v. Collins, 684 F.3d 873, 887 (9th Cir. 2012)
(stating standard of review in deciding challenges to the length of a supervised
release term). “[T]here is every indication that the district court considered the
specific facts presented by [Wuerfel’s] case and that its [imposition of a lifetime
term of supervised release] was consistent with its assessment of these facts.”
United States v. Apodaca, 641 F.3d 1077, 1082 (9th Cir. 2011).
We need not decide whether Wuerfel’s 72-month sentence is substantively
unreasonable in light of our reversal on the obstruction of justice enhancement.
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Conclusion
For the stated reasons, we REVERSE the district court’s application of the
obstruction of justice enhancement, VACATE Wuerfel’s sentence, and REMAND
to the district court for resentencing consistent with this disposition. We AFFIRM
the district court’s denial of Wuerfel’s suppression motion and imposition of a
lifetime term of supervised release.
AFFIRMED IN PART, REVERSED IN PART, VACATED, AND
REMANDED.
Each party shall bear its own costs on appeal.
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