                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         JUN 28 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.    16-10334

                Plaintiff-Appellee,              D.C. No.
                                                 1:14-cr-00106-DAD-BAM-1
 v.

JOAQUIN CUENCA,                                  MEMORANDUM*

                Defendant-Appellant.

                    Appeal from the United States District Court
                       for the Eastern District of California
                     Dale A. Drozd, District Judge, Presiding

                              Submitted May 17, 2017**
                              San Francisco, California

Before: THOMAS, Chief Judge, MURGUIA, Circuit Judge, and MCCALLA,***
District Judge.

             Joaquin Cuenca, a former California Army National Guard recruiter

convicted of wire fraud, appeals the district court’s evidentiary rulings at trial and


      *
             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 Jon P. McCalla, United States District Judge for the
Western District of Tennessee, sitting by designation.
the court’s imposition of a two-level enhancement for obstruction of justice at

sentencing. Cuenca was charged in 10 wire fraud counts with participating in a

scheme to submit false claims of enlistee recruitment and sharing the bonuses

received. At trial, the district court admitted evidence of additional uncharged

fraudulent acts by Cuenca that took place during the time period of the scheme

charged in the indictment. The district court admitted the evidence under Federal

Rule of Evidence 404(b) and the “inextricably intertwined” exception to the Rule.

Cuenca was convicted of three counts of wire fraud in 2016. At sentencing, the

district court applied a two-level sentencing enhancement for obstruction of justice

based on its determination that Cuenca had committed perjury at trial.

      Cuenca argues that the evidence of other acts was inadmissible under Rule

404(b) and the “inextricably intertwined” exception to the Rule because it was not

sufficiently related to the charged acts and was inadmissible under Rule 403 as

cumulative and unfairly prejudicial. Cuenca also contends that, in granting the two-

level sentencing enhancement for perjury, the district court failed to make the

required findings of falsity, materiality, and willfulness pursuant to United States v.

Castro-Ponce, 770 F.3d 819 (9th Cir. 2014).

      We review the district court’s evidentiary rulings for abuse of discretion.

United States v. Major, 676 F.3d 803, 807 (9th Cir. 2012). The district court’s

factual findings in support of an obstruction of justice sentencing enhancement


                                          2
pursuant to § 3C1.1 of the United States Sentencing Guidelines are reviewed for

clear error. United States v. Herrera-Rivera, 832 F.3d 1166, 1172 (9th Cir. 2016).

We affirm.

      Prior to trial, the government filed a motion in limine indicating its intent to

present evidence of five additional fraudulent acts from four recruits and one

Recruiter’s Assistant not named in the indictment. The uncharged transactions

involved the “same principal actors, in the same roles, and employing the same

general modus operandi” as the charged offenses. United States v. Swinton, 75

F.3d 374, 378 (8th Cir. 1996). Pursuant to this court’s decision in United States v.

Loftis, 843 F.3d 1173 (9th Cir. 2016), evidence of the uncharged transactions did

not implicate Rule 404(b) because the evidence related to the existence of the

scheme to defraud, an element of the charged crime. See Loftis, 843 F.3d at 1178.

The uncharged transactions were “intrinsic” to the charged counts of wire fraud as

they were all part of a single scheme; therefore, evidence of the uncharged

transactions was also admissible under the “inextricably intertwined” exception to

Rule 404(b). The district court also did not abuse its discretion in declining to

exclude the evidence under Rule 403 as the testimony was highly probative of

elements one and three of the crime – the existence of a scheme to defraud and a

specific intent to defraud. The testimony from the five witnesses was relatively

brief. The district court did not abuse its discretion in determining that the


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testimony would not be unduly time-consuming or prejudicial.

      Regarding the two-level obstruction of justice sentencing enhancement, the

district court applied the enhancement after listening to arguments from both

parties and reviewing the Presentence Report (“PSR”). The district court expressly

adopted the factual findings in the PSR, stating that it was “overrul[ing] the

objection to the obstruction of justice adjustment as recommended by the probation

office and adopt[ing] that aspect of the PSR.” Though the district court did not

discuss each element of the obstruction of justice enhancement on the record, its

adoption of the findings in the PSR regarding falsity, materiality, and willfulness

were sufficient for the purposes of Castro-Ponce. See United States v. Doe, 488

F.3d 1154, 1158 (9th Cir. 2007) (finding that the required findings were made

where the district court adopted the victims’ statements in the PSR); United States

v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990) (holding that the district court made

adequate findings when it stated that the position in the Probation Officer’s

addendum was the correct one). The PSR contained the required factual findings

on each aspect of the obstruction of justice enhancement for perjury. Therefore, the

district court did not clearly err in applying the enhancement.

      AFFIRMED.




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