                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 2 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   18-30166

              Plaintiff-Appellee,                D.C. No. 3:17-cr-00013-TMB-1

 v.
                                                 MEMORANDUM*
MATTHEW JAMES SCHARBER,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Alaska
                   Timothy M. Burgess, District Judge, Presiding

                        Argued and Submitted June 11, 2019
                                Anchorage, Alaska

Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

      Matthew Scharber appeals the life sentence he received following his

conviction for kidnapping, carjacking, and discharging a firearm in furtherance of a

crime of violence. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
in part, reverse in part, and remand for resentencing consistent with this

disposition.

       Scharber argues that the district court committed plain error in two ways: (1)

by failing to group a carjacking count with one of the kidnapping counts, and (2)

by applying a firearm enhancement to his kidnapping and carjacking offenses.

Scharber did not raise these objections below, so we review for plain error. United

States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004); Fed. R. Crim. P. 52(b). Plain

error is (1) error, (2) that is plain, and (3) affects substantial rights. United States

v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005). If those conditions are met, then

we may exercise our discretion to notice a forfeited error if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id. We agree with

both of Scharber’s arguments and reverse and remand for resentencing.

       First, with respect to grouping, U.S.S.G. § 3D1.2 states that counts “shall be

grouped together into a Single Group” where they “involv[e] substantially the

same harm[.]” Under § 3D1.2(b), counts involve substantially the same harm

“[w]hen counts involve the same victim and two or more acts or transactions

connected by a common criminal objective or constituting part of a common

scheme or plan.” Here, the kidnapping and carjacking were part of the same

scheme to abduct and punish the victims for the theft of a co-conspirator’s wallet.


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The carjacked vehicle belonged to the victims and was used to transport them as

part of the kidnapping. The grouping requirement on the facts of this case, was

plain on the face of the guidelines. The district court therefore erred by failing to

group the counts, and the error affected Scharber’s substantial rights and the

integrity of the proceeding because it resulted in an increased guideline range.

United States v. Vargem, 747 F.3d 724, 729 (9th Cir. 2014).

      Second, with respect to double-counting, the government concedes that the

district court erred by applying the firearms enhancement despite Scharber’s

separate firearms conviction and that the error was plain. It is equally clear that the

error affected Scharber’s substantial rights and the fairness of the judicial

proceedings. The guideline calculation was incorrect, and a correct calculation

would have yielded an offense level of 39 and a guidelines range of 262 to 327

months. Given the possibility of a dramatically reduced sentence, Scharber meets

the third and fourth elements of plain error review.

      Scharber makes two additional arguments, both of which we reject. First,

Scharber argues that the district court erred in applying an organizer role

enhancement pursuant to U.S.S.G. § 3B1.1(c). The organizer enhancement applies

“[i]f the defendant was an organizer, leader, manager, or supervisor . . .” U.S.S.G.

§ 3B1.1(c). A co-conspirator stated that “Scharber planned to steal from [the


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victims] the next time they . . . came to his residence, in order to ‘make up for the

theft’ and to ‘make it known in the neighborhood that he would take care of

problems.’” There was sufficient evidence to corroborate these statements, and

the district court’s finding that the enhancement applied was not clear error.

      Second, Scharber argues that the district court erred in applying an

obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1. The

enhancement applies if “the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense.” U.S.S.G. § 3C1.1.

Scharber’s conduct qualifies. On his way from detention to state court, a

corrections officer caught Scharber with a note referring to the victims as “rats”

and indicating that they needed to be “dealt with.” When the note was discovered,

Scharber lied and told the corrections officer that it contained “numbers for [his]

attorney.” This conduct, paired with Scharber’s attempt to transport the note,

suggests that Scharber intended to distribute the note to a third party. That suffices

to support the application of the obstruction of justice enhancement, and the district

court was not required to make a specific factual finding regarding the likelihood

that the victims would learn of the threat. See United States v. Johnson, 974 F.3d

104, 104, 106 (9th Cir. 1992).


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AFFIRMED in part, REVERSED in part, and REMANDED.




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