                                                                           FILED
                            NOT FOR PUBLICATION                             APR 27 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30067

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00003-JDS-1

  v.
                                                 MEMORANDUM *
RICHARD BRUCE SANDERS,

              Defendant - Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                Jack D. Shanstrom, Senior District Judge, Presiding

                       Argued and Submitted March 6, 2012
                                Portland, Oregon

Before: W. FLETCHER, FISHER and BYBEE, Circuit Judges.

       Richard Sanders appeals the district court’s denial of his motion to suppress

evidence and the district court’s sentencing determination. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         1.   The district court did not err in denying Sanders’s motion to suppress

evidence of guns found at his residence during the execution of the search warrant.

See United States v. Battershell, 457 F.3d 1048, 1050 (9th Cir. 2006) (reviewing

denial of a motion to suppress evidence de novo). The search warrant was based

on Morgan Kamelin’s in-person tip about events that she witnessed. In addition to

relying on Kamelin’s status as a citizen informant lacking any apparent motive to

lie, Deputy Shawn Lesnik verified her tip by testing her memory of the earlier

assault against his own. The totality of the circumstances thus provided both

sufficient reliability and a basis of knowledge to support “a fair probability” that

Sanders had engaged in witness tampering. See United States v. Garcia-Villalba,

585 F.3d 1223, 1233 (9th Cir. 2009) (“Probable cause means only a fair

probability, not certainty, and requires consideration of the totality of the

circumstances.”) (internal quotation marks omitted); see also Illinois v. Gates, 462

U.S. 213, 238 (1983); United States v. Bishop, 264 F.3d 919, 924-25 (9th Cir.

2001).

         2.   The district court did not err in applying an obstruction of justice

enhancement pursuant to U.S. S ENTENCING C OURT G UIDELINES M ANUAL

(U.S.S.G.) § 3C1.1 and denying an acceptance of responsibility reduction pursuant

to U.S.S.G. § 3E1.1. See United States v. Tucker, 641 F.3d 1110, 1123 (9th Cir.


                                           2
2011) (“We review the district court’s interpretation of the Sentencing Guidelines

de novo, the district court’s application of the Guidelines to the facts for abuse of

discretion, and the district court’s factual findings for clear error.”) (internal

quotation marks omitted).

              a.     Obstruction of Justice. This enhancement includes “providing a

materially false statement to a law enforcement officer that significantly obstructed

or impeded the official investigation or prosecution of the instant offense.”

U.S.S.G. § 3C1.1 cmt. n.4(G); see also United States v. Hernandez-Ramirez, 254

F.3d 841, 843-44 (9th Cir. 2001) (qualifying conduct may include submitting a

false or misleading affidavit). Sanders submitted a misleading affidavit for his son

in a related civil forfeiture proceeding representing that Sanders did not possess

some of the guns for which he was charged. This conduct was material because, if

believed, it “would tend to influence or affect the issue under determination.”

United States v. Allen, 341 F.3d 870, 897 (9th Cir. 2003) (internal quotation marks

omitted). It was also disruptive. At sentencing an Alcohol Tobacco and Firearms

agent testified that the affidavit significantly delayed the investigation of Sanders’s

crime. Finally, Sanders’s narrow construction of U.S.S.G. § 3C1.1 as applying

only to affidavits introduced in the instant proceeding is at odds with the

Sentencing Guidelines. See e.g., U.S.S.G. § 3C1.1 cmt. n.4(B) (containing a non


                                            3
exhaustive list of examples of the types of conduct to which the enhancement

applies, including “committing, suborning, or attempting to suborn perjury,

including during the course of a civil proceeding if such perjury pertains to conduct

that forms the basis of the offense of conviction”).

             b.     Acceptance of Responsibility. Given Sanders’s obstruction of

justice, the district court did not err in denying him an acceptance of responsibility

adjustment. “Conduct resulting in an enhancement under § 3C1.1 (Obstructing or

Impeding the Administration of Justice) ordinarily indicates that the defendant has

not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1 cmt. n.4;

see also United States v. Magana-Guerrero, 80 F.3d 398, 401 (9th Cir. 1996)

(reasoning that two defendants’ obstruction of justice enhancement “goes a long

way toward disposing of their arguments that the district court erred in deciding

that they failed to accept responsibility”). Moreover, at trial Sanders contested that

he was in possession of five of the firearms found in his residence. See U.S.S.G. §

3E1.1 cmt. n.2 (to gain acceptance of responsibility after going to trial a defendant

normally must show that he was “preserv[ing] issues that do not relate to factual

guilt”).

       3.    The district court did not err in relying on testimony of Sanders’s

neighbors to decide where in the range of 63 to 78 months to sentence Sanders.


                                           4
See U.S.S.G. § 1B1.4 (“In determining the sentence to impose within the guideline

range . . . the court may consider, without limitation, any information concerning

the background, character and conduct of the defendant, unless otherwise

prohibited by law.”).

      AFFIRMED.




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