United States v. Edward Sullivan

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 29 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-10509 Plaintiff-Appellee, D.C. No. 4:09-cr-00167-JST v. MEMORANDUM* EDWARD LEE SULLIVAN, a.k.a. Three Stacks, Defendant-Appellant. Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding Submitted September 26, 2017** Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges. Edward Lee Sullivan appeals from the district court’s judgment and challenges the 324-month sentence imposed upon remand for resentencing following his bench-trial conviction for production of child pornography, in violation of 18 U.S.C. § 2251(a); and possession of child pornography, in violation * 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). of 18 U.S.C. § 2252(a)(4). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Sullivan contends that the district court erred by applying an obstruction of justice enhancement under U.S.S.G. § 3C1.1. We review the district court’s factual findings for clear error and its application of the Guidelines to the facts for abuse of discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). Contrary to Sullivan’s contention, the district court made sufficient factual findings to support the enhancement, including a finding that Sullivan willfully gave false testimony on a material matter at trial. See United States v. Jimenez-Ortega, 472 F.3d 1102, 1103 (9th Cir. 2007) (discussing the required elements for an obstruction of justice enhancement); see also U.S.S.G. § 3C1.1 cmt. n.4(F) (enhancement is proper when defendant provides “materially false information to a judge”). AFFIRMED. 2 16-10509