                                                                            FILED
                           NOT FOR PUBLICATION                               OCT 27 2011

                                                                         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. 10-50518

              Plaintiff - Appellee,              D.C. No. CR 09-1056-DSF

  v.
                                                 MEMORANDUM *
ROBERT JUNIOR DEHANEY,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                     Argued and Submitted October 13, 2011
                              Pasadena, California

Before: GOODWIN and WARDLAW, Circuit Judges, and SESSIONS, District
Judge.**




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **    The Honorable William K. Sessions III, District Judge, United States
District Court for the District of Vermont, sitting by designation.
      Robert Junior Dehaney appeals his jury conviction and sentence for use of a

fraudulently obtained passport in violation of 18 U.S.C. § 1542, and aggravated

identity theft in violation of 18 U.S.C. § 1028A. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.

1.    Read-back of Trial Testimony

      Because Dehaney did not request a read-back instruction, we review for

plain error his claim that the district court failed to admonish the jury not to accord

undue weight to read-back testimony. United States v. Stinson, 647 F.3d 1196,

1217 (9th Cir. 2011). Any error in failing to give the admonition we set forth in

United States v. Newhoff, 627 F.3d 1163, 1168 (9th Cir. 2010), cert. denied, 131 S.

Ct. 1838 (2011), did not affect Dehaney’s substantial rights. The jury heard read-

back testimony on the issue about which they inquired from both prosecution and

defense witnesses, including direct and cross-examination, in open court, with

counsel and the defendant present. Dehaney was not prejudiced by the failure to

give a cautionary instruction regarding read-back testimony.

2.    Imposition of a Four-Level Enhancement Under U.S.S.G. § 2L2.2(b)(3)(A)

      At sentencing, pursuant to U.S. Sentencing Guidelines Manual §

2L2.2(b)(3)(A) (2009) (“U.S.S.G.”), the district court applied a four-level increase

to Dehaney’s base offense level of eight for fraudulently obtaining or using a


                                           2
United States passport. Dehaney did not object to this calculation, and we review

his double-counting claim for clear error. United States v. Guzman-Mata, 579 F.3d

1065, 1068 (9th Cir. 2009).

      U.S.S.G. § 2L2.2 is the guideline applicable to Dehaney’s fraudulent

passport conviction. U.S.S.G. § 2B1.6, the guideline applicable to aggravated

identity theft, provides that the Guidelines sentence is the consecutive two-year

term of imprisonment required by 18 U.S.C. § 1028A. If a sentence under § 2B1.6

is imposed in conjunction with a sentence for an underlying offense, any specific

offense characteristic “for the transfer, possession, or use of a means of

identification” should not apply when determining the sentence for the underlying

offense. U.S.S.G. § 2B1.6 cmt. n.2.

      A violation of 18 U.S.C. § 1542 is an underlying offense of 18 U.S.C. §

1028A. See 18 U.S.C. §§ 1028A(a)(1), (c)(7). “Means of identification” has the

meaning given the term in 18 U.S.C. § 1028(d)(7). U.S.S.G. § 2B1.6 cmt. n.2.

Because a United States passport is not a “means of identification,” as defined in

the statute, see United States v. Melendrez, 389 F.3d 829, 833-34 (9th Cir. 2004)

(distinguishing between “means of identification” and “identification documents”

as defined in § 1028), the § 2B1.6 exception does not apply. Imposition of the §




                                           3
2L2.2(b)(3)(A) enhancement to Dehaney’s base offense level for fraudulent use of

a passport was not error.

3.    Obstruction of Justice

      The district court found that Dehaney willfully gave false testimony under

oath when he denied knowing that the identity and means of identification that he

was using belonged to a real person. It imposed a two-level upward adjustment to

his offense level pursuant to U.S.S.G. § 3C1.1, which applies “[i]f (A) the

defendant willfully obstructed or impeded . . . the administration of justice with

respect to the investigation, prosecution, or sentencing of the instant offense of

conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of

conviction and any relevant conduct; or (ii) a closely related offense . . . .”

U.S.S.G. § 3C1.1.

      Dehaney’s testimony was relevant to the prosecution and sentencing of the

fraudulent passport count, and it related to the closely related offense of aggravated

theft identify, therefore satisfying subsections (A) and (B) of § 3C1.1. The district

court correctly interpreted § 3C1.1 to permit an obstruction of justice enhancement.

See United States v. Verdin, 243 F.3d 1174, 1180 (9th Cir. 2001) (on de novo

review, rejecting claim that subsection B confined § 3C1.1 to obstructive conduct

directly related to the offense of conviction). Moreover, the district court’s factual


                                            4
finding that Dehaney’s trial testimony was willfully false on a material matter was

not clear error. See United States v. Harrison, 585 F.3d 1155, 1161 (9th Cir. 2009)

(citing United States v. Garro, 517 F.3d 1163, 1167 (9th Cir. 2008)).

4.    Acceptance of Responsibility

      The district court declined to award Dehaney a downward adjustment for

acceptance of responsibility under U.S.S.G. § 3E1.1. “Conduct resulting in an

enhancement under § 3C1.1 . . . ordinarily indicates that the defendant has not

accepted responsibility for his criminal conduct. There may, however, be

extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may

apply.” U.S.S.G. § 3E1.1, cmt. n.4. Dehaney has not shown that his case is

extraordinary. Moreover, the district court also specifically found Dehaney’s

statements of remorse to be unconvincing, and that he did not admit relevant

conduct of other uses of the false identity. The court did not clearly err. See

United States v. Rosas, 615 F.3d 1058, 1066 (9th Cir. 2010).

      AFFIRMED.




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