FILED
NOT FOR PUBLICATION OCT 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10397
Plaintiff-Appellee, D.C. No. 3:14-cr-00387-EMC
v.
MEMORANDUM*
DARRELL BUCKINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted September 27, 2016**
Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
Darrell Buckins appeals from the district court’s judgment and challenges
the 14-month sentence imposed following his jury-trial conviction for escape, in
violation of 18 U.S.C. § 751(a). We have jurisdiction under 28 U.S.C. § 1291, and
we vacate and remand for resentencing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Buckins contends that the district court erred by imposing a sentencing
enhancement for obstruction of justice under U.S.S.G. § 3C1.1. Because the
enhancement was based on Buckins’s testimony at trial, the district court was
required to review the evidence and make independent findings that Buckins had
willfully testified falsely on a material issue. See United States v. Dunnigan, 507
U.S. 87, 94-95 (1993). The record reflects that the district court imposed the
enhancement based on its conclusion that doing otherwise would contravene the
jury’s verdict. However, inconsistency with the jury’s verdict is not sufficient for
the findings required by Dunnigan. See United States v. Monzon-Valenzuela, 186
F.3d 1181, 1184 (9th Cir. 1999); see also United States v. Alvarado-Guizar, 361
F.3d 597, 601, 603 (9th Cir. 2004) (district court not required to agree with jury’s
disbelief of defendant’s testimony when deciding whether to impose enhancement
under section 3C1.1). Contrary to the government’s contention, our holding in
United States v. Sullivan, 797 F.3d 623 (9th Cir. 2015), does not change the
analysis. Because the error may have affected the district court’s guidelines
calculations, we reject the government’s contention that it did not affect Buckins’s
substantial rights. See Molina-Martinez v. United States, 136 S. Ct. 1338, 1345
(2016). We therefore remand for the district court to make the independent
findings required by Dunnigan.
2 15-10397
We do not reach Buckins’s additional argument that the district court erred
in failing to impose a downward adjustment for acceptance of responsibility, under
U.S.S.G. § 3E1.1, after concluding that Buckins had accepted responsibility for the
offense. The court may address this issue on remand.
VACATED and REMANDED for resentencing.
3 15-10397