NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 7 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10202
Plaintiff-Appellee, D.C. No.
2:14-cr-00151-JAM-1
v.
RICHARD C. SIHNER, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted August 16, 2017**
San Francisco, California
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and WATTERS,***
District Judge.
Richard Sihner appeals his conviction for making material false statements
to federal agents, an order imposing restitution in the amount of $78,000, and a
*
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).
***
The Honorable Susan P. Watters, United States District Judge for the
District of Montana, sitting by designation.
sentencing enhancement for obstruction of justice.
The special verdict form did not constructively amend the indictment
because it did not alter the terms of the indictment. United States v. Ward, 747
F.3d 1184, 1189 (9th Cir. 2014).
Trial counsel’s performance was not deficient for failing to object to the
special verdict form because the special verdict form did not constructively amend
the indictment, and it correctly reflected that either false statement was sufficient to
convict Sihner. See United States v. UCO Oil Co., 546 F.2d 833, 838 (9th Cir.
1976). Counsel is not deficient for failing to raise a meritless objection. See Rupe
v. Wood, 93 F.2d 1434, 1445 (9th Cir. 1996).
Even if there was insufficient evidence to find Sihner made one false
statement, the error was harmless because the jury found Sihner made both false
statements. United States v. Plascencia-Orozco, 852 F.3d 910, 916 (9th Cir.
2017).
The restitution order may be summarily affirmed because Sihner provided
an insufficient record to review the issue. In re O’Brien, 312 F.3d 1135, 1137 (9th
Cir. 2002). Moreover, the district court did not clearly err in calculating the
amount of payments made to Sihner. See United States v. Sarno, 73 F.3d 1470,
1503 (9th Cir. 1995) (“We review . . . the factual findings underpinning
[restitution] orders for clear error.”). The court may rely on hearsay evidence at
2 16-10202
sentencing, and Sihner has failed to demonstrate that such reliance was improper
here. See United States v. Petty, 982 F.2d 1365, 1370 (9th Cir. 1993) (hearsay may
be considered at sentencing as long as it bears some minimal indicia of reliability).
Based on the above conclusions, Sihner’s argument that the district court
erred when it imposed a sentencing enhancement for obstruction of justice is
without merit.
AFFIRMED.
3 16-10202