United States v. Daniel Mills

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                                                                            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                            NOT FOR PUBLICATION                              DEC 21 2017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.




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