                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 7 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10202

                Plaintiff-Appellee,             D.C. No.
                                                2:14-cr-00151-JAM-1
 v.

RICHARD C. SIHNER,                              MEMORANDUM*

                Defendant-Appellant.

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

                           Submitted August 16, 2017**
                            San Francisco, California

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and WATTERS,***
District Judge.

      Richard Sihner appeals his conviction for making material false statements

to federal agents, an order imposing restitution in the amount of $78,000, and a


      *
             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 Susan P. Watters, United States District Judge for the
District of Montana, sitting by designation.
sentencing enhancement for obstruction of justice.

      The special verdict form did not constructively amend the indictment

because it did not alter the terms of the indictment. United States v. Ward, 747

F.3d 1184, 1189 (9th Cir. 2014).

      Trial counsel’s performance was not deficient for failing to object to the

special verdict form because the special verdict form did not constructively amend

the indictment, and it correctly reflected that either false statement was sufficient to

convict Sihner. See United States v. UCO Oil Co., 546 F.2d 833, 838 (9th Cir.

1976). Counsel is not deficient for failing to raise a meritless objection. See Rupe

v. Wood, 93 F.2d 1434, 1445 (9th Cir. 1996).

      Even if there was insufficient evidence to find Sihner made one false

statement, the error was harmless because the jury found Sihner made both false

statements. United States v. Plascencia-Orozco, 852 F.3d 910, 916 (9th Cir.

2017).

      The restitution order may be summarily affirmed because Sihner provided

an insufficient record to review the issue. In re O’Brien, 312 F.3d 1135, 1137 (9th

Cir. 2002). Moreover, the district court did not clearly err in calculating the

amount of payments made to Sihner. See United States v. Sarno, 73 F.3d 1470,

1503 (9th Cir. 1995) (“We review . . . the factual findings underpinning

[restitution] orders for clear error.”). The court may rely on hearsay evidence at


                                           2                                      16-10202
sentencing, and Sihner has failed to demonstrate that such reliance was improper

here. See United States v. Petty, 982 F.2d 1365, 1370 (9th Cir. 1993) (hearsay may

be considered at sentencing as long as it bears some minimal indicia of reliability).

      Based on the above conclusions, Sihner’s argument that the district court

erred when it imposed a sentencing enhancement for obstruction of justice is

without merit.

      AFFIRMED.




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