NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 8 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30188

Plaintiff-Appellee, D.C. Nos. 1:20-cr-02022-SMJ-1 v. 1:20-cr-02022-SMJ

BRUCE WARREN SAMPSON, Jr.,

MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding

Argued and Submitted February 16, 2023 Seattle, Washington

Before: PAEZ and VANDYKE, Circuit Judges, and BENITEZ,** District Judge. Concurrences by Judge Paez and Judge Vandyke.

Appellant Bruce Sampson, Jr. was convicted by jury of assault with a

dangerous weapon in Indian Country, in violation of 18 U.S.C. §§ 113(a)(3) and

1153, and assault resulting in serious bodily injury in Indian Country, in violation

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation. of 18 U.S.C. §§ 113(a)(6) and 1153. Sampson argues the district court erred when

it: (1) denied his motion for a deposition of a material witness before trial; (2)

denied his motion for acquittal of 18 U.S.C. § 113(a)(3), assault with a dangerous

weapon; and (3) made various errors during sentencing. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm in part and reverse

in part. We assume familiarity with the underlying facts and arguments in this

appeal.

1. Sampson makes two arguments relating to the district court’s denial of

his motion for pre-trial deposition of victim E.U. First, Sampson contends that his

counsel was prevented from preparing a full defense. This argument is not

supported by precedent. Neither the Supreme Court nor the Ninth Circuit has

recognized a Sixth Amendment right for defendants to depose or otherwise

interview a witness prior to trial. United States v. Ash, 413 U.S. 300, 316-17

(1973) (holding that the Sixth Amendment does not create a right for defense

counsel to be present during prosecution’s pre-trial witness interviews); United

States v. Black, 767 F.2d 1334, 1338 (9th Cir. 1985) (explaining that there is no

violation of the Sixth Amendment when witnesses voluntarily decline pre-trial

interviews with defense counsel).

Second, Sampson argues E.U.’s “pervasive” memory loss at trial resulted in

Sampson being functionally unable to confront the witness against him. The

2 Supreme Court has addressed whether a Confrontation Clause violation can be

based on a witness’s loss of memory. United States v. Owens, 484 U.S. 554

(1988), overruled on other grounds by Crawford v. Washington, 541 U.S. 36, 51

(2004). In Owens, despite gaps in the victim’s memory regarding key events, the

victim witness did testify at trial and was cross-examined by defense counsel. Id.

at 556. The Owens Court determined the victim-witness’s lack of memory did not

cause a Confrontation Clause violation, reasoning that, “[t]he Confrontation Clause

guarantees only ‘an opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever extent, the defense

might wish.’” Id. at 559 (citation omitted). The same is true here. Because E.U.

testified at trial and submitted to cross-examination by defense counsel, there was

no Confrontation Clause violation.

2. Next, Sampson challenges the district court’s denial of his motion for

acquittal of 18 U.S.C. § 113(a)(3), assault with a dangerous weapon. Sampson

does not challenge whether a shoe can be considered a dangerous weapon, but

whether there was sufficient evidence to show E.U. was actually kicked during the

assault. The standard for determining whether a conviction is supported by

sufficient evidence is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

3 443 U.S. 307, 319 (1979); United States v. Nevils, 598 F.3d 1158, 1163-64 (9th

Cir. 2010) (en banc) (quoting Jackson). Additionally, “[t]he reviewing court must

respect the province of the jury to determine the credibility of witnesses, resolve

evidentiary conflicts, and draw reasonable inferences from proven facts.” Walters

v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted).

Sampson relies heavily on the testimony of defense witnesses and the

victim’s inconsistent statements for this argument. However, his emphasis on

conflicting witness accounts is misplaced. Given the conflicting testimony of all

the witnesses to the assault—Sampson, his girlfriend Charlene Richards, and victim

E.U.—the verdict signals that the jury found Sampson’s and Richards’s version of

events not credible. We will not disturb this credibility determination on appeal.

Sampson also points to multiple interpretations of the physical evidence to

argue there was reasonable doubt that E.U. was kicked. Although there was no

direct evidence, there was sufficient circumstantial evidence to show that E.U. was

kicked during the assault. We have held that even circumstantial evidence and

inferences drawn therefrom can be enough to uphold a conviction. Maass, 45 F.3d

at 1358 (citation omitted). After reviewing the record in the light most favorable to

the prosecution, we conclude there is sufficient evidence to support Sampson’s

conviction for assault with a deadly weapon.

3. Finally, Sampson alleges several errors occurred during his sentencing.

4 A district court’s interpretation of the Sentencing Guidelines is reviewed de novo,

its application of the Guidelines to facts is reviewed for abuse of discretion, and its

factual findings are reviewed for clear error. United States v. Loew, 593 F.3d

1136, 1139 (9th Cir. 2010) (citation omitted).

First, Sampson challenges the district court’s application of the obstruction

of justice adjustment to his sentence. The district court stated the basis for the

obstruction of justice enhancement was Sampson’s testimony at trial. The

Supreme Court has held that when a district court bases this sentence enhancement

on the defendant’s trial testimony, the court must “make independent findings

necessary to establish a willful impediment to or obstruction of justice . . . under

the perjury definition we have set out.” United States v. Dunnigan, 507 U.S. 87,

95 (1993).

In a line of cases interpreting Dunnigan, we have held that district courts

must make the explicit factual findings necessary for perjury; a reviewing court

cannot justify the enhancement on appeal, and the district court’s failure to make

these findings during sentencing is reversible error. United States v. Herrera-

Rivera, 832 F.3d 1166, 1174-75 (9th Cir. 2016); United States v. Castro-Ponce,

770 F.3d 819, 822-23 (9th Cir. 2014); United States v. Jimenez-Ortega, 472 F.3d

1102, 1103-1104 (9th Cir. 2007). In this case, the district court did not make the

requisite express factual findings required by these cases. Bound by the rule set

5 out in Castro-Ponce, we reverse and remand for resentencing on this ground.

Second, Sampson challenges the district court’s application of the deadly

weapon enhancement to his sentence. However, because the jury’s verdict

regarding assault with a deadly weapon was supported by sufficient evidence, the

application of this upward adjustment was not erroneous.

Third, Sampson challenges the district court’s denial of a downward

adjustment for acceptance of responsibility. When deciding whether to apply this

adjustment, district courts “should consider the defendant’s contrition,” United

States v. Martinez-Martinez, 369 F.3d 1076, 1089 (9th Cir. 2004), and whether the

defendant “manifests a genuine acceptance of responsibility for his actions,”

United States v. McKinney, 15 F.3d 849, 852 (9th Cir. 1994). As long as the

sentencing court did not rely on impermissible factors when making this

determination, “no specific explanation of reasons is required for denying a

defendant a downward adjustment for acceptance of responsibility.” United States

v. Mohrbacher, 182 F.3d 1041, 1052 (9th Cir. 1999) (citation omitted). Here, the

district court made explicit findings on the record that Sampson lacked remorse for

his actions. This reasoning is sufficient.

Finally, Sampson challenges the overall reasonableness of his sentence.

Sampson points to the disparity in sentence length between state and federal courts,

and further argues this disparity unduly impacts Native Americans who are

6 sentenced under federal sentencing guidelines. Sampson appears to argue that the

Major Crimes Act, 18 U.S.C. § 1153 et seq, is unconstitutional under the Equal

Protection Clause because it makes “an explicit classification based on race or

ethnicity.”

Sampson’s argument comparing state and federal sentencing disparities is

foreclosed by United States v. Ringgold, where we held that 18 U.S.C. § 3553

(a)(6) does not require consideration of disparities between similarly situated state

and federal defendants. 571 F.3d 948, 951 (9th Cir. 2009). We reasoned that

“allowing the departure solely based on federal-state sentence disparities ‘would

undermine the goal of uniformity that Congress sought to ensure in enacting the

[Sentencing] Guidelines.’” Id. (citation omitted).

Regarding the disparate effect the federal sentencing guidelines have on

Native Americans, parts of this argument have been addressed by both the

Supreme Court and this court. In United States v. Antelope, the Supreme Court

reasoned that classification of Native Americans under the Major Crimes Act was

a political one arising from “the unique status of Indians as a ‘separate people’

with their own political institutions.” 430 U.S. 641, 646 (1977). The Supreme

Court concluded that “Indian” in this context was therefore not an impermissible

racial classification. Id. at 646. Adding to this, we have observed that, “Congress

is not required to eliminate all differences in treatment between Indians and non-

7 Indians so long as all persons subject to federal jurisdiction are treated the same.”

United States v. Yazzie, 693 F.2d 102, 104 (9th Cir. 1982) (citing Antelope, 430

U.S. at 646). Given the above, the district court did not abuse its discretion or

impose an unreasonable sentence based on its refusal to consider the potentially

lesser sentence Sampson could have received in state court.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for

resentencing consistent with this disposition.

8

FILED

United States v. Sampson, No. 21-30188 JUN 8 2023

MOLLY C. DWYER, CLERK

Paez, J., concurring: U.S. COURT OF APPEALS

I concur in the majority decision. I write separately to express my

agreement with the decision in United States v. Castro-Ponce, which holds that a

sentencing court must make express findings on the elements of perjury before

imposing a sentencing enhancement for obstruction of justice under U.S.S.G.

§ 3C1.1. 770 F.3d 819, 823 (9th Cir. 2014). Our holding in Castro-Ponce is

consistent with Supreme Court precedent and the approaches of our sister circuits.

Furthermore, the Castro-Ponce rule serves an important role in safeguarding a

defendant’s constitutional right to testify on his own behalf, without fear he will be

punished by a longer sentence if found guilty. For these reasons, I disagree with

the concurrence’s attempt to chip away at Castro-Ponce.

The concurrence’s argument is premised on a misreading of United States v.

Dunnigan, 507 U.S. 87 (1993). Dunnigan holds that a sentencing court cannot

impose a § 3C1.1 enhancement without “mak[ing] independent findings necessary

to establish a willful impediment to or obstruction of justice . . . under the perjury

definition” the Court laid out. Id. at 95. The Court’s definition of perjury contains

three elements: 1) that a defendant gave false testimony 2) on a material matter 3)

with willful intent. Id. at 94. The Court explained that, when imposing a § 3C1.1

enhancement for perjury, “it is preferable for a district court to address each

1 element of the alleged perjury in a separate and clear finding,” but it is also

sufficient if a court “makes a finding . . . that encompasses all of the factual

predicates for a finding of perjury.” Id. at 95. The concurrence seizes on this latter

clause, asserting that it allows district courts to impose the enhancement without

making any findings on the elements of perjury.

But there can be no doubt that Dunnigan requires specific findings on the

elements of perjury. The opinion repeatedly says so. It first states that “a trial

court must make findings to support all the elements of a perjury violation in the

specific case.” Id. at 96-97. And then again, it stresses that “the elements of

perjury must be found by the district court with the specificity we have stated.” Id.

at 98 (emphasis added). The concurrence claims that the Court “meant what it

said” by “not requiring explicit findings on each element of alleged perjury,” but

that statement is found nowhere in the opinion. Dunnigan is clear: a trial court can

choose to make “separate and clear” findings on the perjury elements, or a finding

“encompass[ing]” all of the elements at once, but either way, the court must

address every element of the offense.

The factual record in Dunnigan further underscores the specificity of

findings that is required. In Dunnigan, the district court made a global statement

that addressed all three elements of perjury at once, finding that “the defendant was

untruthful at trial with respect to material matters . . . that were designed to

2 substantially affect the outcome of the case.” Id. at 95 (emphasis in original). The

Supreme Court concluded that this statement was sufficiently specific because

“each of the factual predicates of perjury was covered by the [text that the Court]

italicized,” and the record contained evidence supporting those findings. United

States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir. 2002) (citing Dunnigan, 507 U.S.

at 95). The notion that Dunnigan allows a trial court to freely impose the perjury

enhancement without making any specific findings is not consistent with what

happened in that case.

We have consistently interpreted and applied Dunnigan since its inception.

In a series of early cases, we upheld the obstruction of justice enhancement

because the district court made findings on all three elements of perjury. See

United States v. Shannon, 137 F.3d 1112, 1119 (9th Cir. 1998) (affirming district

court’s statement that it “found [defendant’s] testimony to be false, material, and

willful”); United States v. Oplinger, 150 F.3d 1061, 1070 (9th Cir. 1998)

(affirming district court’s finding that the “evidence shows that [the defendant] did

testify as [sic] a material, relevant issue of fact falsely”); see also United States v.

Ancheta, 38 F.3d 1114, 1118 (9th Cir. 1994). And in 2006 and 2007, we vacated a

§ 3C1.1 enhancement in two separate cases because the district court failed to

make findings on materiality. See Jimenez, 300 F.3d at 1171 (“[B]ecause the court

. . . did not expressly find that the false testimony was material, its finding of

3 perjury failed to encompass all factual predicates of perjury as required by

Dunnigan.”); see also United States v. Jimenez-Ortega, 472 F.3d 1102, 1103-04

(9th Cir. 2007) (same).

The concurrence embarks on a misleading detour by citing United States v.

Arias-Villanueva, one of our earlier cases where we upheld a perjury enhancement

despite the district court’s failure to make a finding on materiality. 998 F.2d 1491,

1512-13 (9th Cir. 1993). But Arias-Villanueva was overruled for reasons that had

nothing to do with Dunnigan. As we explained in Jimenez-Ortega, Arias-

Villanueva was abrogated by the Supreme Court’s decision in United States v.

Gaudin, which clarified that materiality is a factual issue that must be decided by

the trier of fact. Jimenez-Ortega, 472 F.3d at 1103-04 (citing United States v.

Gaudin, 515 U.S. 506 (1995)). “Thus, while it was acceptable at the time of Arias-

Villanueva for our court to make a ruling on materiality . . . this was no longer true

when Jimenez was decided.” Id. at 1103. Arias-Villanueva does not show that our

court later changed course in interpreting Dunnigan’s requirements, as the

concurrence claims it does.

This brings us to Castro-Ponce, which is the primary subject of the

concurrence’s critique. Castro-Ponce simply clarifies Dunnigan by explaining that

a sentencing court must make “express findings on all three prongs necessary for

perjury to amount to obstruction of justice.” 770 F.3d at 822. The concurrence

4 greatly overstates the impact and significance of this decision, claiming that our

Circuit “discovered” new requirements for the perjury enhancement. In reality, the

“express” findings rule is the same standard we have always applied, and it is

functionally identical to Dunnigan’s language requiring “specific” findings. 1 The

Castro-Ponce rule was reaffirmed by another panel in 2016. United States v.

Herrera-Rivera, 832 F.3d 1166, 1175 (9th Cir. 2016). Although the Herrera-

Rivera court remarked on the “rigid[ness]” of the Castro-Ponce rule, it also

acknowledged that a requirement of express findings was “consistent with our

precedents prior to Castro-Ponce . . . as well as the approach taken by some of our

sister circuits.” Id. (citations omitted).

On that note, we are not the only circuit that requires express findings on the

elements of perjury. The Castro-Ponce rule “accords with” decisions from the

Sixth Circuit and the Tenth Circuit. Castro-Ponce, 770 F.3d at 822; see United

States v. Kamper, 748 F.3d 728, 747 (6th Cir. 2014) (reversing because the district

court failed to make findings on materiality or intent); United States v. Massey, 48

1 The concurrence contends that prior caselaw only required findings on materiality, and not on willfulness or false testimony—but that is not true. As discussed, the materiality requirement was embroiled in dispute because it was unclear if it was a legal issue or a factual one prior to the Supreme Court’s decision in Gaudin. See Jimenez-Ortega, 472 F.3d at 1103-04. Our court had always required “specific” findings on the other two elements, and so does Dunnigan. See, e.g., Oplinger, 150 F.3d at 1070; Shannon, 137 F.3d at 1119; Ancheta, 38 F.3d at 1118. 5 F.3d 1560, 1573 (10th Cir. 1995) (noting that Dunnigan requires a district court to

address “all three elements of perjury” and reversing because the district court

failed to address materiality and willfulness). The concurrence cites another case,

United States v. Roberts, where the Sixth Circuit explains that it does not always

“insist on rigid adherence to these rules.” 919 F.3d 980, 990 (6th Cir. 2019). But

even then, the Sixth Circuit emphasized that it would not sustain an enhancement

when a district court “made no findings whatsoever” on the elements of perjury

because doing so would “fail[] to satisfy the most forgiving reading of

Dunnigan.”2 Id. at 990-91.

There are good reasons to adopt such procedural safeguards surrounding the

obstruction of justice enhancement. For one, perjury is a “serious charge” that

often increases a defendant’s prison sentence; it therefore “requires serious proof.”

Castro-Ponce, 770 F.3d at 823. An overzealous application of the obstruction of

2 The concurrence also cites several cases from other circuits without clearly explaining why. The majority of these cases do not conflict with our holding in Castro-Ponce, and conversely, some are supportive. See, e.g., United States v. Smith, 62 F.3d 641, 647 (4th Cir. 1995) (reversing enhancement where district court failed to specifically find the three elements of perjury or to “make a single global finding that encompassed the three essential elements”); United States v. Tracy, 36 F.3d 199, 203 (1st Cir. 1994) (upholding perjury enhancement where the district court made “each of the three ultimate findings of inaccuracy, willfulness, and materiality”); United States v. Rodriguez, 995 F.2d 776, 779 (7th Cir. 1993) (upholding enhancement where district court made sufficient findings as to false testimony, materiality, and willfulness).

6 justice enhancement can also infringe on the constitutional right of criminal

defendants to testify in their own defense. See Rock v. Arkansas, 483 U.S. 44, 51

(1987) (citation omitted). Dunnigan recognized that risk and sought to protect

against the enhancement becoming “automatic.” Dunnigan, 507 U.S. at 98. We,

too, should “decline to adopt a more forgiving standard” that might “chill[] a

criminal defendant’s willingness” to take the stand. Castro-Ponce, 770 F.3d at

823.

Finally, the Castro-Ponce rule also helps ensure “reliability and

reviewability” of the sentencing decision on appeal. Id. The case before us

perfectly illustrates the practical necessity of the rule. The district court’s only

finding in support of imposing a § 3C1.1 enhancement was that “the jury

necessarily found that [Sampson] perjured himself” by rendering a guilty verdict.

This statement is woefully inadequate to permit meaningful review of whether

Sampson’s testimony met the elements of perjury. Castro-Ponce ensures that an

appellate court will not have to “rely on inference to deduce” the reasons why the

district court imposed the enhancement. Roberts, 919 F.3d at 991.

I respectfully disagree with the arguments in the concurrence, and I see no

need to reexamine our holding in Castro-Ponce.3

3 The concurrence goes to great lengths to attack my interpretation of Dunnigan and our cases applying Dunnigan. I invite the reader to review the cited cases and reach their own conclusions. I have no doubt that the reader will find Castro- 7 Ponce consistent with longstanding precedent from our circuit and our sister circuits. 8

FILED

United States v. Sampson, No. 21-30188 JUN 8 2023

MOLLY C. DWYER, CLERK

VANDYKE, Circuit Judge, concurring: U.S. COURT OF APPEALS

I agree with the majority decision, and write separately only to spotlight our

court’s mistaken rule dating from 2014 that a sentencing court must make explicit

findings on all elements of perjury before it imposes a Section 3C1.1 sentencing

enhancement. Nothing in the text or application notes of that section or in Supreme

Court precedent requires such explicit findings. No other circuit has followed us on

this lonesome detour. And our own court has only resignedly imposed the

requirement since 2014, despite recognizing that it likely creates “too rigid a rule.”

United States v. Herrera-Rivera, 832 F.3d 1166, 1174 (9th Cir. 2016).

American sentencing courts historically enjoyed broad discretion in how to

impose extra penalties on defendants who had perjured themselves at trial. E.g.,

Seymour Harris, Principles of Criminal Law 175 (1880). Nothing in the text of

Section 3C1.1 or its application notes as published in 1987 cabined this discretion

by requiring a sentencing court to make explicit findings as to the perjury elements

when it applies the enhancement. See U.S.S.G. § 3C1.1 (1987). Nor has any such

requirement been added to the section’s text or application notes since then. See

U.S.S.G. § 3C1.1 (2021).

Supreme Court precedent does not compel a conclusion that such a

requirement lies hidden somewhere behind the plain text of Section 3C1.1. In United States v. Dunnigan, the Supreme Court clarified that, if a defendant objects

to imposition of the enhancement, Section 3C1.1 requires a sentencing court to

“review the evidence and make independent findings necessary to establish a willful

impediment to or obstruction of justice, or an attempt to do the same, under the

perjury definition we have set out.” 507 U.S. 87, 95 (1993). But the Court left open

two different routes for a sentencing court to meet this obligation. First, it could

make explicit, separate, and clear findings for each element of the alleged perjury.

Id. Second, it could make a finding that “encompasses all of the factual predicates

for a finding of perjury” when reviewed in light of the record. Id.

In the years immediately following Dunnigan, our sister circuits had no trouble

understanding that the Court meant what it said when it preserved that second route

of not requiring explicit findings on each element of alleged perjury. See, e.g.,

United States v. Tracy, 36 F.3d 199, 203 (1st Cir. 1994); United States v. Boggi, 74

F.3d 470, 479 (3d Cir. 1996); United States v. Smith, 62 F.3d 641, 647 (4th Cir.

1995); United States v. Laury, 985 F.2d 1293, 1308 (5th Cir. 1993); United States v.

Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993); United States v. Massey, 48 F.3d 1560,

1573 (10th Cir. 1995); United States v. Dobbs, 11 F.3d 152, 155 (11th Cir. 1994).

Nor did our own court initially diverge from this consensus. The first time we

applied Dunnigan, we noted that the Court in that case upheld a perjury enhancement

even though the sentencing court had not even designated any specific item of false

2 testimony, and we thus concluded that a sentencing court need not explicitly make

such findings provided “the record supports the district court’s finding of perjury.”

United States v. Arias-Villanueva, 998 F.2d 1491, 1512 (9th Cir. 1993), overruled

on other grounds as recognized in United States v. Kahre, 737 F.3d 554 (9th Cir.

2013). We repeatedly reaffirmed that understanding of Dunnigan in subsequent

years, holding that “although it is preferable for a district court to address each

element of the alleged perjury in a separate and clear finding, this is in no way

required.” United States v. Oplinger, 150 F.3d 1061, 1071 (9th Cir. 1998) (cleaned

up); see also United States v. Sager, 227 F.3d 1138, 1144 (9th Cir. 2000) (upheld

despite no explicit finding).

But we started to change our mind in 2007. In United States v. Jimenez-

Ortega, we correctly extended the Supreme Court’s reasoning from twelve years

earlier in United States v. Gaudin, 515 U.S. 506 (1995), to require that the sentencing

court, as factfinder, make a finding as to the materiality element of perjury before

applying the Section 3C1.1 enhancement. 472 F.3d 1102, 1103–04 (9th Cir. 2007)

(per curiam). Without further analysis, though, the Jimenez-Ortega panel then

assumed without saying that this also meant the materiality finding needed to be

explicit rather than discernible from the record. Id.

No other circuit court adopted that requirement before we plunged further

down the path away from a natural reading of Dunnigan in United States v. Castro-

3 Ponce, 770 F.3d 819 (9th Cir. 2014). There, for the first time after more than two

decades of reading and rereading Dunnigan, our court discovered a requirement that

a sentencing court must make explicit findings not only as to materiality but as to all

perjury elements before it permissibly could apply the Section 3C1.1 enhancement:

[I]n light of the government’s comment at oral argument that no case within our circuit has held that a finding of materiality must be express, we hold today that an express finding is required. To hold otherwise would eviscerate the rule announced in Jimenez-Ortega. Absent a requirement of express findings on all three prongs necessary for perjury to amount to obstruction of justice, we would have to speculate about the district court’s legal conclusions on obstruction. Rather than engage in such speculation, we require the fact-finder to make those determinations explicitly for our review.

Id. at 822. The Castro-Ponce court did not ground this new requirement in the text

of Section 3C1.1 or try to reconcile it with the outcome of Dunnigan itself. Nor did

it explain how the requirement could have been necessarily implied in Jimenez-

Ortega when our court had upheld a Section 3C1.1 enhancement just months earlier

in a case where the sentencing court had not made express findings on all three

perjury elements. United States v. Armstrong, 749 F.3d 842, 848 (9th Cir. 2014).

Judge Paez has a more modest view of Castro-Ponce than the Castro-Ponce

panel itself had, reading the case as consistent with Dunnigan, our preceding

caselaw, and the approaches of our sister circuits. But that view is distorted by

misunderstandings of the cases he cites and of how they fit into a broader context of

relevant cases he does not cite.

4 Those misunderstandings start with Dunnigan itself. Judge Paez assumes that

when the Court said a sentencing court must “make independent findings” separate

from a jury guilty verdict, the Court secreted into that language an additional two

requirements that those findings be specific and express. He reads Dunnigan to

“repeatedly say[] so,” though he does not reference any language where the Court in

fact said so even once. He instead infers those unstated requirements from two case

quotations, neither of which supports his reading. First, the Court held that the “trial

court must make findings to support all the elements of a perjury violation in a

specific case.” Yet nothing in that language necessitates specific and express

findings. Second, the Court held that “the elements of perjury must be found with

the specificity we have stated.” Yet the Court in preceding pages had expressly

identified two permissible degrees of specificity: (1) separate and clear findings on

each element or (2) a general finding that encompasses all of the factual predicates

for a finding of perjury. 507 U.S. at 95.

Perhaps sensing just how thin a reed of support those quotations offer, Judge

Paez contends that Dunnigan’s factual record “further underscores the specificity of

findings that is required.” It does—but not in the way he thinks it does. The

sentencing court in Dunnigan applied the enhancement with a cursory recitation of

the perjury elements and a bald reliance on the guilty verdict. Dunnigan, 507 U.S.

at 91, 95. It was only when the Court reviewed the sentencing court’s statement

5 against the record that it found “ample support for the District Court’s finding” and

affirmed it. Id. at 95–96. Judge Paez posits that the “notion that Dunnigan allows a

trial court to freely impose the perjury enhancement without making any specific

findings is not consistent with what happened in that case.” Respectfully, that is

what happened in that case.

Judge Paez further asserts that our court’s “consistent[]” interpretation of

Dunnigan in the decades preceding Castro-Ponce also confirms the counterintuitive

position that the Court explicitly permitted a sentencing court to make a general

finding of perjury supported by the record, only to then implicitly render that option

a nullity by requiring specific and express findings. But he again misreads the cases

he cites. He reads United States v. Shannon to have required specific and express

findings, but our court there only required that findings be “independent” from a

jury’s guilty verdict. 137 F.3d 1112, 1119 (9th Cir. 1998) (per curiam). He reads

United States v. Oplinger for the same proposition, but it states the exact opposite:

“although it is preferable for a district court to address each element of the alleged

perjury in a separate and clear finding, this is in no way required.” 150 F.3d at 1070.

And he reads United States v. Ancheta the same way, but our court there merely held

that the sentencing court’s moderately specific findings were sufficient to satisfy

Dunnigan—not that they were necessary. 38 F.3d 1114, 1118 (9th Cir. 1994).

A survey of our relevant caselaw beyond the few cases Judge Paez cites only

6 confirms that our court consistently—at least seven times!—did not require specific

and express findings for each of the perjury elements up until Castro-Ponce itself

imposed that requirement for the first time. See United States v. Robinson, 63 F.3d

889, 892 (9th Cir. 1995); United States v. Garcia, 135 F.3d 667, 671 (9th Cir. 1998);

United States v. Monzon-Valenzuela, 186 F.3d 1181, 1184 (9th Cir. 1999); Sager,

227 F.3d at 1146; United States v. Cordova Barajas, 360 F.3d 1037, 1043 (9th Cir.

2004); United States v. Armstrong, 620 F.3d 1172, 1176–77 (9th Cir. 2010); United

States v. Taylor, 749 F.3d 842, 848 (9th Cir. 2014). Some of those cases postdate

Gaudin, and they collectively belie any assertion that “the ‘express’ findings rule is

the same standard we have always applied.”

Lastly, Judge Paez says other circuits also “require[] express findings on the

elements of perjury” and that Castro-Ponce accords with their decisions. But his

argument there fails in three ways.

First, he contends the Sixth and Tenth Circuits impose that requirement, even

though those circuits have expressly said otherwise. The Sixth Circuit recently has

at least twice affirmed that the second Dunnigan route is still valid: a sentencing

court preferably should, but need not, make specific and express findings as to the

perjury elements. United States v. Castro, 960 F.3d 857, 870–71 (6th Cir. 2020);

United States v. Roberts, 919 F.3d 980, 990–91 (6th Cir. 2019). The Tenth Circuit

has made the same point twice—including when applying the decision Judge Paez

7 cites for the opposite conclusion. See United States v. Paup, 933 F.3d 1226, 1235

(10th Cir. 2019); United States v. Flonnory, 630 F.3d 1280, 1287 (10th Cir. 2011).

Second, he cites three cases for the proposition that the First, Fourth, and

Seventh Circuits support Castro-Ponce’s conclusion that Dunnigan requires specific

and express findings on all three perjury elements. But none of the cited cases

actually does. The Fourth Circuit case he cites reversed an enhancement because,

as it expressly stated, the sentencing court did not satisfy Dunnigan’s requirements

by making either specific findings or a single global finding that encompassed the

perjury elements. See United States v. Smith, 62 F.3d 641, 647 (4th Cir. 1995).

Meanwhile, the First and Seventh Circuit cases he cites note simply that the

sentencing court’s specific findings there sufficed to satisfy Dunnigan, not that they

were necessary. See United States v. Tracy, 36 F.3d 199, 201–03 (1st Cir. 1994);

United States v. Rodriguez, 995 F.2d 776, 779 & n.3 (7th Cir. 1993). All three

circuits have subsequently and unmistakably held that Dunnigan does not require

specific and express findings. United States v. Teganya, 997 F.3d 424, 435–36 (1st

Cir. 2021); United States v. Savage, 885 F.3d 212, 225–26 (4th Cir. 2018); United

States v. Price, 28 F.4th 739, 757 (7th Cir. 2022).

Third, a survey of the remaining circuits finds none that requires specific and

express findings of perjury for all cases like Castro-Ponce does. See United States

v. Rosario, 988 F.3d 630, 633–34 (2d Cir. 2021) (per curiam); United States v. Gray,

8 942 F.3d 627, 633 (3d Cir. 2019); United States v. Ajayi, 64 F.4th 243, 251 (5th Cir.

2023); United States v. Garcia, 61 F.4th 628, 631–32 (8th Cir. 2023); United States

v. Stahlman, 934 F.3d 1199, 1227–28 (11th Cir. 2019); United States v. Montague,

40 F.3d 1251, 1256 (D.C. Cir. 1994).

Almost a decade has passed since Castro-Ponce. Yet to borrow a line from a

Green Day song that won a Grammy around the same time our court first set off on

its own path, we still walk a lonely road, and we walk alone. No other circuit court

appears to have followed our lead in reinterpreting Dunnigan to conflict with its own

result. To the contrary, at least the Sixth and Eleventh Circuits have since then

reaffirmed that Dunnigan does not require an explicit finding on any perjury prong.

United States v. Stahlman, 934 F.3d 1199, 1227–28 (11th Cir. 2019); United States

v. Roberts, 919 F.3d 980, 990–91 (6th Cir. 2019). And our own court has itself

doubted the correctness of Castro-Ponce’s reading of Dunnigan, recognizing in

Herrera-Rivera that “[a] good argument can be made that Castro-Ponce applies too

rigid a rule.” 832 F.3d at 1174. We should fix this unnecessary requirement and

bring our court in line with the other circuits. Or I suppose the Supreme Court could

do it for us.

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