                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 13-10377
            Plaintiff-Appellee,
                                           D.C. No.
              v.                     2:12-cr-01363-SRB-1

INDALECIO CASTRO-PONCE,
         Defendant-Appellant.               OPINION


      Appeal from the United States District Court
               for the District of Arizona
       Susan R. Bolton, District Judge, Presiding

                Argued and Submitted
     September 9, 2014—San Francisco, California

                   Filed October 24, 2014

     Before: Stephen Reinhardt, Ronald M. Gould,
        and Marsha S. Berzon, Circuit Judges.

               Opinion by Judge Gould
2              UNITED STATES V. CASTRO-PONCE

                           SUMMARY*


                          Criminal Law

    The panel vacated a sentence enhancement for obstruction
of justice pursuant to U.S.S.G. § 3C1.1 and remanded for
resentencing.

    The panel held that the enhancement was incorrectly
applied because the district court, which expressly found that
the defendant’s testimony was false, did not explicitly find
that the testimony was willful and material.


                            COUNSEL

Lynn T. Hamilton (argued), Hamilton Law Office, Mesa,
Arizona, for Defendant-Appellant.

Krissa M. Lanham (argued), Assistant United States
Attorney; Mark S. Kokanovich, Deputy Appellate Chief; and
John S. Leonardo, United States Attorney, District of
Arizona, Phoenix, Arizona, for Plaintiff-Appellee.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               UNITED STATES V. CASTRO-PONCE                           3

                             OPINION

GOULD, Circuit Judge:

    During his trial on charges of conspiracy to possess with
intent to distribute methamphetamine, possession with intent
to distribute methamphetamine, and conspiracy to launder
monetary instruments, appellant Indalecio Castro-Ponce
(“Castro-Ponce”) testified in his own defense. His testimony
included elaborate explanations for his purportedly suspicious
activities. Castro-Ponce was convicted of the possession and
conspiracy to possess charges. At the sentencing hearing, the
district court imposed enhancements for obstruction of justice
and for Castro-Ponce’s leadership role in the drug conspiracy.
Castro-Ponce appeals the obstruction of justice enhancement.1
We have jurisdiction under 28 U.S.C. § 1291. Because the
district court did not make explicit findings that Castro-
Ponce’s false statements were willful and material, we vacate
the enhancement and remand for re-sentencing.

                                   I

    The government’s investigation into Castro-Ponce began
in January 2012 when he was intercepted over a wiretap
speaking with someone thought to be involved in narcotics
trafficking. Pursuant to warrants, the government began
wiretapping Castro-Ponce’s phones, tracking his phones and
car, and physically monitoring his movements over several
months. The surveillance revealed that between February 1


 1
    Castro-Ponce also appeals the sufficiency of the evidence underlying
his conspiracy and possession convictions, and the propriety of his
leadership role enhancement. We affirm the district court on those issues
in a concurrently filed memorandum disposition.
4            UNITED STATES V. CASTRO-PONCE

and July 10, 2012, Castro-Ponce made at least eighteen trips
to destinations often hundreds of miles from his home in
Yuma County, Arizona, staying at his destinations for only
minutes or hours before returning to Yuma County.

    Based on what the government believed was coded
language related to the drug trade in several of Castro-
Ponce’s recorded phone calls, as well as the discovery of
methamphetamine and cash at two of the places to which he
traveled shortly after he left those places, federal agents
arrested Castro-Ponce in July 2012.

    Castro-Ponce was indicted for four felony counts: one
count of Conspiracy to Possess with Intent to Distribute more
than 500 grams of Methamphetamine in violation of
21 U.S.C. § 846; two counts of Possession with Intent to
Distribute more than 500 grams of Methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii);
and one count of Conspiracy to Launder Monetary
Instruments in violation of 18 U.S.C. § 1956(h).

    During the six-day jury trial, Castro-Ponce testified in his
own defense. He gave explanations for each of the trips the
government’s evidence revealed—traveling to purchase a car
on one occasion; shopping, or buying and selling auto parts
or televisions on others—and testified that his brief stops
were a result of car trouble or for other innocuous reasons.
Castro-Ponce explained that his recorded conversations
referred to paying his mortgage, the sale of motorcycle parts,
or stolen alfalfa. The jury convicted Castro-Ponce of the
conspiracy to possess count and of the two possession counts,
but acquitted him of the conspiracy to launder money count.
At the sentencing hearing, the district court found that Castro-
Ponce “clearly lied on the stand with respect to the activities
             UNITED STATES V. CASTRO-PONCE                   5

that he testified about and the offer of innocent and not
credible explanations for those activities.” Deeming this false
testimony obstruction of justice, the court imposed a two-
level upward adjustment of Castro-Ponce’s base offense level
pursuant to U.S.S.G. § 3C1.1. His guidelines sentencing
recommendation was then calculated to be life imprisonment,
with a mandatory minimum of ten years. He was sentenced
to 240 months imprisonment.

    On appeal, Castro-Ponce challenges the propriety of the
district court’s imposition of the sentencing enhancement for
obstruction of justice.

                              II

    A district court’s factual findings for purposes of an
obstruction of justice sentencing enhancement under U.S.S.G.
§ 3C1.1 are reviewed for clear error. United States v. Garro,
517 F.3d 1163, 1171 (9th Cir. 2008) (citing United States v.
Jimenez, 300 F.3d 1102, 1170 (9th Cir. 2007)). The district
court’s characterization of a defendant’s conduct as
obstruction of justice within the meaning of § 3C1.1 is
reviewed de novo. United States v. Cordova Barajas,
360 F.3d 1037, 1043 (9th Cir. 2004).

                             III

    A two-level increase in a crime’s base offense level
applies when a defendant “willfully obstructed or impeded,
or attempted to obstruct or impede, the administration of
justice . . . .” U.S.S.G. § 3C1.1. For perjury to be deemed
obstruction, the district court must find that: “(1) the
defendant gave false testimony, (2) on a material matter,
(3) with willful intent.” Garro, 517 F.3d at 1171. Here, the
6            UNITED STATES V. CASTRO-PONCE

district court expressly found that Castro-Ponce’s testimony
was false, but did not explicitly find that the testimony was
willful or material, saying only that Castro-Ponce “clearly
lied on the stand with respect to the activities that he testified
about and the offer of innocent and not credible explanations
for those activities.” For that reason, we conclude that the
sentencing enhancement was incorrectly applied, and so the
sentence must be vacated.

    In United States v. Jimenez-Ortega, 472 F.3d 1102 (9th
Cir. 2007), we confronted a case in which the district court
had characterized the defendant’s testimony as “so incredible,
in light of all of the evidence, that it was clear to the court
that [he] intended to obstruct or impede justice with [his]
version of the facts. [His] testimony was not the result of any
confusion, mistake, or faulty memory, but an attempt to
willfully obstruct justice.” Id. at 1103. But because there
was no finding on the issue of materiality, we vacated the
enhancement. Id. at 1104.

    In Jimenez-Ortega, resolving the tensions between two
divergent doctrinal strands within our circuit, we held that it
is necessary for the district court, rather than the reviewing
court, to make a finding on the issue of materiality. Id. at
1103–04. We reasoned that in light of United States v.
Gaudin, 515 U.S. 506, 522–23 (1995), which held in the
context of a prosecution for making false statements in a
matter within the jurisdiction of a federal agency that the
question of materiality is an issue to be decided by the trier of
fact, district court decisions enhancing sentences for
obstruction of justice must be remanded absent a materiality
finding.
             UNITED STATES V. CASTRO-PONCE                    7

    We follow Jimenez-Ortega today. Moreover, in light of
the government’s comment at oral argument that no case
within our circuit has held that a finding of materiality must
be express, we hold today that an express finding is required.
To hold otherwise would eviscerate the rule announced in
Jimenez-Ortega. Absent a requirement of express findings on
all three prongs necessary for perjury to amount to
obstruction of justice, we would have to speculate about the
district court’s legal conclusions on obstruction. Rather than
engage in such speculation, we require the fact-finder to make
those determinations explicitly for our review.

    Our rule accords with that employed in some of our sister
circuits. The Sixth Circuit has reasoned that presuming that
the elements of perjury are satisfied in the absence of specific
findings in the district court raises the risk of “undermining
a criminal defendant’s constitutional right to testify on his
own behalf.” United States v. Kamper, 748 F.3d 728, 747–48
(6th Cir. 2014) (concluding that a district court’s finding that
defendant had told an “‘obvious lie’” under oath was
insufficient to support obstruction enhancement and that
factual findings concerning materiality and willfulness were
needed). The Tenth Circuit also requires the district court to
make findings on willfulness and materiality for an
obstruction enhancement to be affirmed. See United States v.
Massey, 48 F.3d 1560, 1573–74 (10th Cir. 1995) (reversing
obstruction enhancement where district court had found that
defendant’s testimony was false, but did not identify the false
testimony or make specific findings as to materiality and
willfulness).
8            UNITED STATES V. CASTRO-PONCE

                              IV

    Obstruction of justice is a serious charge, and requires
serious proof. To enhance a guidelines sentencing range
based on obstruction of justice, which often results in more
time served in prison, a district court must make explicit
findings that not only did the defendant give false testimony,
but also that the falsehoods were willful and material to the
criminal charges. We decline to adopt a more forgiving
standard, which could have the unintended consequence of
chilling a criminal defendant’s willingness to take the stand
and give testimony in his or her defense. To require explicit
findings on elements needed for the obstruction of justice
enhancement helps ensure reliability and reviewability of a
sentencing decision. The sentencing enhancement for
obstruction of justice was error on this record, and so the
sentence is vacated. The case is remanded to the district court
for further action not inconsistent with this opinion.

    VACATED and REMANDED.
