                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-2407
                         ___________________________

                             United States of America,

                        lllllllllllllllllllll Plaintiff - Appellee,

                                            v.

                                Daphne Lynn Keeble,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                    for the District of South Dakota - Aberdeen
                                   ____________

                              Submitted: May 31, 2016
                                Filed: July 29, 2016
                                   [Unpublished]
                                  ____________

Before RILEY, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.
                              ____________

PER CURIAM.

       Daphne Keeble pleaded guilty to one count of making false statements, in
violation of 18 U.S.C. § 1001. At sentencing, the district court1 imposed a two-level

      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
increase for obstruction of justice when calculating Keeble’s offense level under the
advisory sentencing guidelines. Keeble appeals her sentence, arguing for the first
time on appeal that the court erred in applying the adjustment. We conclude that
there was no plain error, and we therefore affirm.

       Following the death of her sister, Keeble applied to the Social Security
Administration for Title II Survivor’s Insurance benefits for her nephew. She also
sought to serve as her nephew’s representative payee. From July 2006 to July 2011,
Keeble received $25,791 from the Administration. During that time, she made
several false statements to the Administration to ensure that the funds were
distributed to her as payee. Keeble falsely represented that her nephew was living
with her and that she was spending or saving all funds on his behalf.

      Keeble pleaded guilty to one count of making false statements. In a plea
agreement, Keeble “agree[d] to make restitution to the . . . Administration at or before
sentencing in the amount of $21,815.83.” In exchange for Keeble’s plea, the
government moved to dismiss three other charges arising from the same set of facts.

       When Keeble appeared for sentencing over five months later, she had paid only
$2,000 of the required restitution. The district court continued the hearing and
allowed Keeble to remain on bond so that she could acquire the funds necessary to
pay the restitution. The following day, the court sent a memorandum to the parties,
notifying them that it would consider a possible upward departure or variance at
sentencing due to Keeble’s failure to pay restitution as described in the plea
agreement. The court added that Keeble’s conduct “could well be a serious matter
of obstruction of justice and a further attempt to defraud the government.”

      The parties reconvened for sentencing seven weeks later, but Keeble had paid
no more restitution. Based on a finding that Keeble willfully misled the court in the
plea agreement by promising to pay substantial restitution, the district court sua

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sponte imposed a two-level increase for obstruction of justice pursuant to
USSG § 3C1.1. The court then sentenced Keeble within the advisory guideline range
to 20 months’ imprisonment. Keeble now argues that the court committed procedural
error by applying the obstruction adjustment.

       Keeble did not object to the § 3C1.1 adjustment in the district court, so we
review only for plain error. See United States v. Pazour, 609 F.3d 950, 952 (8th Cir.
2010) (per curiam). Keeble therefore must show that the district court committed an
error that is plain, that the error affected her substantial rights, and that there would
be a miscarriage of justice if the error were not corrected. United States v. Olano, 507
U.S. 725, 732-36 (1993). Keeble has not satisfied this standard.

       The adjustment for obstruction of justice applies when the government proves
by a preponderance of the evidence that “the defendant willfully obstructed . . . the
administration of justice with respect to the . . . sentencing of the instant offense of
conviction, and . . . the obstructive conduct related to . . . the defendant’s offense of
conviction and any relevant conduct.” USSG § 3C1.1; United States v. O’Dell, 204
F.3d 829, 836 (8th Cir. 2000). “Obstructive conduct can vary widely in nature,
degree of planning, and seriousness.” USSG § 3C1.1, comment. (n.3). To assist
courts in identifying such conduct, the commentary to the guideline offers a non-
exhaustive list of examples. Id., comment. (n.4). One example provides that a
defendant obstructs justice when she provides “materially false information to a
judge.” Id., comment. (n.4(F)). “The act of providing materially false information
to a judicial officer also includes a requirement of willful intent to deceive the fact
finder.” United States v. Molina, 172 F.3d 1048, 1058 (8th Cir. 1999).

        The district court found that Keeble pleaded guilty knowing “that she did not,
in fact, have the means or the possibility of the means to pay the restitution . . . and
. . . that she acted willfully.” The court also determined that Keeble “entered into
th[e] plea agreement with the intent to mislead the Court as to what she was going to

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do.” There was no obvious error in these findings. The record shows that Keeble had
a positive monthly cash flow of only $213, that her only asset was a vehicle worth
$3,800, and that she had what the court described as a “miserable” credit history. She
paid only $2,000 restitution in the seven months after she entered the plea agreement.
It was reasonable for the court to find on this record that Keeble willfully misled the
court by making a promise to pay $21,815.83 while knowing that she would not
follow through.

       There was also a basis to find that Keeble’s promise was material. As part of
the plea agreement, the government agreed to move for dismissal of three counts
against Keeble and to recommend a reduction in her offense level for acceptance of
responsibility. The agreement would not take effect unless the court accepted it. See
Fed. R. Crim. P. 11(c). Keeble’s promise in the plea agreement to make substantial
restitution is a statement that, if believed, would tend to influence or affect the court’s
decision to approve the agreement. It was therefore not plain error for the court to
conclude that Keeble’s statement was material. See USSG § 3C1.1, comment. (n.6).

       Keeble complains that the government failed to present evidence in support of
the adjustment, but the record already included the information necessary to support
the court’s finding. The court gave Keeble an opportunity to rebut the inference of
obstruction of justice that was available from the existing record, even recognizing
evidence that Keeble could have presented to do so, but it did not impermissibly shift
the burden of proof onto Keeble.

       The judgment of the district court is affirmed.
                      ______________________________




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