NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50111
Plaintiff-Appellee, D.C. No. 2:11-cr-00329-PSG-3
v.
MEMORANDUM
DENISE BROWNING,
Defendant-Appellant
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted February 4, 2015
Pasadena, California
Before: KLEINFELD and NGUYEN, Circuit Judges, and CARR, Senior
District Judge.**
Defendant Denise Browning appeals her conviction and sentence for
willfully aiding or assisting in the filing of false tax returns, in violation of 26
U.S.C. § 7206(2). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James G. Carr, Senior United States District Judge for the
Northern District of Ohio, sitting by designation.
3742(a). For the reasons stated below, we affirm the conviction, but vacate the
sentence and remand for resentencing.
1. Sufficient evidence supports Defendant’s conviction. The evidence,
viewed in the light most favorable to the government, Jackson v. Virginia, 443
U.S. 307, 319 (1979), demonstrates that Defendant willfully prepared false tax
returns. For example, instead of reporting the actual amount of wages paid to
employees, Defendant only reported the wage amount that matched the amount of
taxes the company already paid.
In 2005, during an interview with an IRS agent, Defendant acknowledged
that the wages she reported on the returns should match those reported on the
employees’ W-2s. Nevertheless, on a subsequent return, she again underreported
the wages paid to employees. Defendant refused to sign the returns because she did
not want to sign something under penalty of perjury that she knew was false.
Further, the jury viewed email correspondence between Defendant and her boss in
which Defendant asked if she should file certain returns “as is, totally legit.”
Finally, at trial, Defendant admitted she knew the numbers she wrote on the
returns were false. The jury, based on the evidence before it, reasonably rejected
Defendant’s good-faith defense that she relied on an IRS provision which she
believed allowed her to file the false returns if she later amended them.
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2. As the government correctly concedes, in light of United States v.
Castro-Ponce, 770 F.3d 819 (9th Cir. 2014), we must vacate and remand for
resentencing. The district court imposed a two-level increase in Defendant’s
offense level pursuant to U.S.S.G. § 3C1.1 on the ground that Defendant
committed perjury, but failed to explicitly make findings as to perjury’s three
elements. On remand, the district court must consider each element in deciding
whether to impose the enhancement.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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