                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 9 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50397

                Plaintiff-Appellee,             D.C. No.
                                                3:18-cr-01005-LAB-1
 v.

RAMON DELGADO, AKA Ramon                        MEMORANDUM*
Delgado-Pina,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                    Argued and Submitted December 13, 2019
                             Pasadena, California

Before: KELLY,** PAEZ, and BADE, Circuit Judges.

      Following a jury trial, Ramon Delgado was convicted of a single count of

knowingly making a materially false statement under 18 U.S.C. § 1001(a). He was

sentenced to twenty-four months’ imprisonment and three years’ supervised



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
release. Delgado appeals both his conviction and his sentence. We have

jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

                                           I

      During his employment as a United States Border Patrol agent, Delgado

completed a mandatory background investigation to renew his security clearance.

That investigation posed the following question to Delgado: have you had “close

and/or continuing contact with a foreign national within the last seven (7) years

with whom you, or your spouse, or cohabitant are bound by affection, influence,

common interests, and/or obligation.” Delgado identified two relatives and

confirmed that he had no additional relationships to disclose. A federal grand jury

subsequently indicted Delgado for two counts of knowingly making a materially

false statement under 18 U.S.C. § 1001.1

      At trial, the government introduced evidence of an undisclosed, personal and

ongoing relationship between Delgado and two Mexican nationals, each of whom

was engaged in international drug trafficking. Delgado does not dispute that the

government’s evidence was sufficient to establish a relationship between him and

these individuals. Instead, he contends that his failure to disclose these

relationships cannot sustain a conviction as a matter of law because the question



1
  The jury acquitted Delgado of the second count, which did not pertain to a
statement made in connection with his background investigation.

                                           2
posed to him was fundamentally ambiguous. We review for plain error because

Delgado failed to raise this argument prior to his conviction. See United States v.

Yijun Zhou, 838 F.3d 1007, 1011–12 (9th Cir. 2016).

      The mere presence “of some ambiguity in a falsely answered question” does

not require this court to set aside a conviction for perjury or for providing a false

statement. United States v. Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003) (per

curiam). “It is for the jury to decide in such cases which construction the

defendant placed on a question.” Id. But a jury may not convict a defendant for

such an offense, as a matter of law, when a question is “fundamentally

ambiguous.” Id. “A question is fundamentally ambiguous when ‘men of ordinary

intelligence’ cannot arrive at a mutual understanding of its meaning.” Id. (quoting

United States v. Boone, 951 F.2d 1526, 1534 (9th Cir. 1991)).

      We find nothing “fundamentally ambiguous” about the question posed to

Delgado, particularly when considering the context of the inquiry, the nature of

Delgado’s job, and the follow-up questions posed to him. See id. at 1079. To the

extent the question contained some ambiguity, the district court properly permitted

the jury to determine whether Delgado understood the question and whether, as

understood, he knowingly provided a false answer. See United States v. McKenna,

327 F.3d 830, 841 (9th Cir. 2003). Thus, the district court did not err by failing to

dismiss the indictment.


                                           3
                                          II

      Next, Delgado argues that his twenty-four month sentence is substantively

unreasonable. Although Delgado’s sentence is within the statutory maximum for

such a violation, see 18 U.S.C. § 1001(a), his sentence is above the recommended

Sentencing Guidelines range. Delgado argues that, in imposing an above-

Guidelines sentence, the district court impermissibly relied on evidence of his

uncharged conduct that was not presented to the jury and that was not “relevant

conduct” to his conviction.

      “A defendant has no right to a Guidelines sentence,” United States v.

Hilgers, 560 F.3d 944, 947 (9th Cir. 2009), and we do not automatically “presume

that a non-Guidelines sentence is un reasonable,” United States v. Carty, 520 F.3d

984, 993 (9th Cir. 2008) (en banc). A sentencing court has discretion “to ‘conduct

an inquiry broad in scope, largely unlimited either as to the kind of information [it]

may consider, or the source from which it may come.’” Pepper v. United States,

562 U.S. 476, 489 (2011) (quoting United States v. Tucker, 404 U.S. 443, 446

(1972)).

      We reject Delgado’s argument that the district court abused its discretion by

considering his uncharged conduct that Delgado asserts was not “relevant conduct”

to his offense. This factor, which a district court uses to determine the Sentencing

Guidelines range, see U.S.S.G. § 1B1.3(a)(1)(A), is inapplicable here because the


                                          4
district court did not impose a Guidelines sentence.2 Delgado’s above-Guidelines

sentence is substantively reasonable in light of the 18 U.S.C. § 3553 factors and the

totality of the circumstances, including the seriousness of Delgado’s offense and

the need for deterrence. See Gall v. United States, 552 U.S. 38, 51 (2007). Thus,

the district court did not abuse its discretion in imposing Delgado’s sentence.

      AFFIRMED.




2
 Further, Delgado does not contend the district court committed procedural error
by miscalculating the Sentencing Guidelines range. See Carty, 520 F.3d at 991.

                                          5
