FILED
NOT FOR PUBLICATION DEC 21 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30016
Plaintiff - Appellee, D.C. No. 1:16-cr-00031-EJL
v.
MEMORANDUM*
DANIEL ANDREW MILLS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Daniel Andrew Mills challenges the 100-month sentence imposed by the
district court following his jury-trial conviction for unlawful possession of firearms
in violation of 18 U.S.C. § 922(g)(1). 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 recedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Mills contends that the district court erred in imposing an obstruction of
justice enhancement under U.S.S.G. § 3C1.1 without an explicit finding of willful
intent. Because Mills did not object to the enhancement on this basis in the district
court, we review for plain error. See United States v. Herrera-Rivera, 832 F.3d
1166, 1172 (9th Cir. 2016).
To impose an obstruction of justice enhancement based on perjury, the
district court must make explicit findings that: “(1) the defendant gave false
testimony, (2) on a material matter, (3) with willful intent.” United States v.
Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014) (internal quotations omitted).
The district court plainly erred in applying the enhancement because it failed to
make a finding of willful intent. See Herrera-Rivera, 832 F.3d at 1175. Contrary
to Mills’s suggestion, it is the district court’s role to determine the facts relevant to
the enhancement. See Castro-Ponce, 770 F.3d at 822. Thus, we vacate Mills’s
sentence and remand for the district court to make the requisite factual findings and
determine whether the enhancement should be reimposed.
In light of this disposition, we do not reach Mills’s claim that his sentence is
substantively unreasonable.
VACATED and REMANDED for resentencing.
2 17-30016