FILED
NOT FOR PUBLICATION APR 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30067
Plaintiff - Appellee, D.C. No. 1:10-cr-00003-JDS-1
v.
MEMORANDUM *
RICHARD BRUCE SANDERS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, Senior District Judge, Presiding
Argued and Submitted March 6, 2012
Portland, Oregon
Before: W. FLETCHER, FISHER and BYBEE, Circuit Judges.
Richard Sanders appeals the district court’s denial of his motion to suppress
evidence and the district court’s sentencing determination. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court did not err in denying Sanders’s motion to suppress
evidence of guns found at his residence during the execution of the search warrant.
See United States v. Battershell, 457 F.3d 1048, 1050 (9th Cir. 2006) (reviewing
denial of a motion to suppress evidence de novo). The search warrant was based
on Morgan Kamelin’s in-person tip about events that she witnessed. In addition to
relying on Kamelin’s status as a citizen informant lacking any apparent motive to
lie, Deputy Shawn Lesnik verified her tip by testing her memory of the earlier
assault against his own. The totality of the circumstances thus provided both
sufficient reliability and a basis of knowledge to support “a fair probability” that
Sanders had engaged in witness tampering. See United States v. Garcia-Villalba,
585 F.3d 1223, 1233 (9th Cir. 2009) (“Probable cause means only a fair
probability, not certainty, and requires consideration of the totality of the
circumstances.”) (internal quotation marks omitted); see also Illinois v. Gates, 462
U.S. 213, 238 (1983); United States v. Bishop, 264 F.3d 919, 924-25 (9th Cir.
2001).
2. The district court did not err in applying an obstruction of justice
enhancement pursuant to U.S. S ENTENCING C OURT G UIDELINES M ANUAL
(U.S.S.G.) § 3C1.1 and denying an acceptance of responsibility reduction pursuant
to U.S.S.G. § 3E1.1. See United States v. Tucker, 641 F.3d 1110, 1123 (9th Cir.
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2011) (“We review the district court’s interpretation of the Sentencing Guidelines
de novo, the district court’s application of the Guidelines to the facts for abuse of
discretion, and the district court’s factual findings for clear error.”) (internal
quotation marks omitted).
a. Obstruction of Justice. This enhancement includes “providing a
materially false statement to a law enforcement officer that significantly obstructed
or impeded the official investigation or prosecution of the instant offense.”
U.S.S.G. § 3C1.1 cmt. n.4(G); see also United States v. Hernandez-Ramirez, 254
F.3d 841, 843-44 (9th Cir. 2001) (qualifying conduct may include submitting a
false or misleading affidavit). Sanders submitted a misleading affidavit for his son
in a related civil forfeiture proceeding representing that Sanders did not possess
some of the guns for which he was charged. This conduct was material because, if
believed, it “would tend to influence or affect the issue under determination.”
United States v. Allen, 341 F.3d 870, 897 (9th Cir. 2003) (internal quotation marks
omitted). It was also disruptive. At sentencing an Alcohol Tobacco and Firearms
agent testified that the affidavit significantly delayed the investigation of Sanders’s
crime. Finally, Sanders’s narrow construction of U.S.S.G. § 3C1.1 as applying
only to affidavits introduced in the instant proceeding is at odds with the
Sentencing Guidelines. See e.g., U.S.S.G. § 3C1.1 cmt. n.4(B) (containing a non
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exhaustive list of examples of the types of conduct to which the enhancement
applies, including “committing, suborning, or attempting to suborn perjury,
including during the course of a civil proceeding if such perjury pertains to conduct
that forms the basis of the offense of conviction”).
b. Acceptance of Responsibility. Given Sanders’s obstruction of
justice, the district court did not err in denying him an acceptance of responsibility
adjustment. “Conduct resulting in an enhancement under § 3C1.1 (Obstructing or
Impeding the Administration of Justice) ordinarily indicates that the defendant has
not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1 cmt. n.4;
see also United States v. Magana-Guerrero, 80 F.3d 398, 401 (9th Cir. 1996)
(reasoning that two defendants’ obstruction of justice enhancement “goes a long
way toward disposing of their arguments that the district court erred in deciding
that they failed to accept responsibility”). Moreover, at trial Sanders contested that
he was in possession of five of the firearms found in his residence. See U.S.S.G. §
3E1.1 cmt. n.2 (to gain acceptance of responsibility after going to trial a defendant
normally must show that he was “preserv[ing] issues that do not relate to factual
guilt”).
3. The district court did not err in relying on testimony of Sanders’s
neighbors to decide where in the range of 63 to 78 months to sentence Sanders.
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See U.S.S.G. § 1B1.4 (“In determining the sentence to impose within the guideline
range . . . the court may consider, without limitation, any information concerning
the background, character and conduct of the defendant, unless otherwise
prohibited by law.”).
AFFIRMED.
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