NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 24 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50175

Plaintiff-Appellee, D.C. No. 3:21-cr-02911-GPC-1 v.

RENE ROBERT RUIZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding

Submitted October 18, 2023** Pasadena, California

Before: TASHIMA and H.A. THOMAS, Circuit Judges, and RAKOFF,*** District Judge.

Rene Robert Ruiz appeals his conviction and sentence for assault on a

federal officer inflicting bodily injury in violation of 18 US.C. § 111(a)(1), (b). We

* 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). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. have jurisdiction under 28 U.S.C. § 1291. We affirm Ruiz’s conviction, but vacate

his sentence, and remand to the district court for resentencing.

Because Ruiz failed to preserve either of the challenges he raises on appeal,

we review for plain error. Fed R. Crim. P. 52(b); United States v. Baker, 58 F.4th

1109, 1124 (9th Cir. 2023); United States v. Herrera-Rivera, 832 F.3d 1166, 1172

(9th Cir. 2016). Plain error review permits reversal only if the defendant

establishes four elements: 1) “there must be an error;” 2) “the error must be plain;”

3) “the error must affect substantial rights, which generally means that there must

be a reasonable probability that, but for the error, the outcome of the proceeding

would have been different;” and 4) the error must have “had a serious effect on the

fairness, integrity or public reputation of judicial proceedings.” Greer v. United

States, 141 S. Ct. 2090, 2096–97 (2021) (internal quotation marks omitted).

1. Ruiz argues that the district court plainly erred by allowing a government

witness to testify that Ruiz threatened border patrol officers as they subdued him

just after the charged assault. Ruiz argues that this testimony constituted

inadmissible evidence of an “other . . . act” introduced to “prove [his] character.”

Fed. R. Evid. 404(b)(1). But “evidence should not be considered . . . ‘other act’

evidence within the meaning of Rule 404(b) if the evidence concerning the ‘other’

act and the evidence concerning the crime charged are inextricably intertwined.”

United States v. Loftis, 843 F.3d 1173, 1177 (9th Cir. 2016) (some internal

2 quotation marks omitted). Accordingly, Rule 404(b) does not exclude evidence of

an act that is “a part of the transaction that serves as the basis for the criminal

charge,” or that is “necessary . . . to offer a coherent and comprehensible story

regarding the commission of the crime.” Id. at 1178 (quoting United States v.

Vizcarra-Martinez, 66 F.3d 1006, 1012–13 (9th Cir. 1995)).

The testimony regarding Ruiz’s threats satisfies each of these tests. Ruiz

began making threats seconds after striking an officer, and continued making them

moments later while being escorted to the security office. This testimony helped

show that Ruiz intended to strike the officer—an issue that Ruiz strongly contested

at trial. The testimony was therefore “necessary to put [the defendant’s] illegal

conduct into context and to rebut his claims of self-defense.” United States v. Daly,

974 F.2d 1215, 1217 (9th Cir. 1992). Nor was the testimony unduly prejudicial.

See Fed. R. Evid. 403. The probative value of Ruiz’s threats, which showed his

violent intent during the assault, was not substantially outweighed by the risk that

the jury might have drawn negative inferences about Ruiz’s character. The district

court accordingly did not err, plainly or otherwise, in admitting the testimony. We

therefore affirm Ruiz’s conviction.

2. Ruiz argues that the district court plainly erred in imposing a sentencing

enhancement for obstruction of justice based on Ruiz’s trial testimony without

expressly finding on the record that the testimony was willfully false and material

3 to the case. The government concedes that the district court erred in failing to make

these findings, and that the error was plain given this court’s precedents requiring

the findings. See United States v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014).

But the government nevertheless argues that Ruiz has not satisfied the third and

fourth prongs of plain error review, because the error did not affect Ruiz’s

sentence.

The government first argues that the record demonstrates perjury so clearly

that the district court’s failure to expressly find the elements of perjury was

harmless. But a clear record does not relieve the district court of the requirement to

make the relevant factual findings expressly. “To hold otherwise would eviscerate

the rule” requiring such findings. Id. The government also argues that the district

court, in the alternative, imposed the obstruction enhancement on the basis that

Ruiz malingered in his testimony before the jury by pretending to be too feeble to

intentionally strike the officer. It is true that the district court alluded to Ruiz’s

potential malingering in its explanation of its sentencing enhancement. The district

court did not, however, clearly find that Ruiz malingered or state that it imposed

the enhancement on that basis. Because any malingering, moreover, took place

through Ruiz’s testimony regarding the extent of his injuries, the imposition of an

enhancement for obstruction of justice on that basis would still require an express

finding that the testimony was material and willfully false. Id.

4 Finally, the government argues that Ruiz would have received the same

sentence even without the obstruction enhancement. It points out that the district

court calculated the range recommended by the U.S. Sentencing Guidelines with

and without the enhancement, and then imposed a sentence below both ranges. But

we have already held that the imposition of an obstruction enhancement on the

basis of perjury, without express findings supporting that enhancement, constitutes

reversible plain error even when the sentence imposed falls below the range the

Sentencing Guidelines would have recommended absent the enhancement.

Herrera-Rivera, 832 F.3d at 1175.

The government also emphasizes that the district court imposed a 68-month

sentence of imprisonment primarily based on its perception of the seriousness of

Ruiz’s offense, rather than any particular mitigating factors. But this does not show

that the district court would have imposed the same sentence with or without the

enhancement. In every case, a district judge must first “consider the Guidelines

sentencing range,” but then ultimately “impose [a] sentence[] that reflect[s] the

seriousness of the offense,” among other factors. United States v. Booker, 543 U.S.

220, 259–60 (2005) (citing 18 U.S.C. § 3553(a)) (internal quotation marks

omitted). Yet Guidelines errors are sometimes plain, as was the error here. See

Herrera-Rivera, 832 F.3d at 1175. We therefore vacate Ruiz’s sentence, and

“remand for the district court to make express findings as to the willfulness and

5 materiality of [Ruiz’s] trial testimony . . . in order to determine whether the

obstruction enhancement applies, and to resentence accordingly.” United States v.

Johnson, 812 F.3d 757, 764–65 (9th Cir. 2016).

AFFIRMED IN PART, VACATED IN PART, and REMANDED.1

1 The parties shall bear their own costs on appeal.

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