                                                                               FILED
                           NOT FOR PUBLICATION
                                                                                JUN 29 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 15-10230

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00148-JAD-GWF-1
 v.

JULIO DE ARMAS DIAZ,                             MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                              for the District of Nevada
                    Jennifer A. Dorsey, District Judge, Presiding

               Argued October 21, 2016; Resubmitted June 15, 2017
                           San Francisco, California

Before: GRABER and MURGUIA, Circuit Judges, and O’CONNELL,** District
Judge.

      Defendant Julio De Armas Diaz and two co-defendants conspired with a

confidential informant to rob drugs from a delivery van’s driver, by abducting him

and stealing his van. When arrested, en route to the crime, police officers


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The Honorable Beverly Reid O’Connell, United States District Judge for
the Central District of California, sitting by designation.
discovered, in the cars, a gun, zip ties, duct tape, and gloves. Diaz falsely claimed

that he did not know that there was a gun in his car. Diaz and a co-defendant also

had engaged in three earlier completed thefts. A jury convicted Diaz of conspiracy

to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951;

conspiracy to commit theft in an interstate shipment, in violation of 18 U.S.C.

§ 371; three counts of theft from an interstate shipment, in violation of 18 U.S.C.

§ 659; and making a false statement, in violation of 18 U.S.C. § 1001. The district

court then sentenced him to 130 months’ imprisonment. We affirm Diaz’

convictions but, because the court miscalculated the applicable Guidelines range,

we vacate his sentence and remand for resentencing.

      1. We reject Diaz’ challenges to the district court’s rulings on impeachment,

for the reasons stated in United States v. Simon, 665 F. App’x 597, 599-600 (9th

Cir. 2016) (unpublished), aff’d, 2017 WL 2469420, at *4 n.5 (9th Cir. June 8,

2017) (en banc).

      2. The district court did not err by declining to strike a juror, for the reasons

stated in Simon, 665 F. App’x at 600.

      3. Sufficient evidence supported Diaz’ convictions on the conspiracy

counts. In addition to describing the incriminating circumstances of the arrest, a

confidential informant testified about clearly incriminating statements made by


                                           2
Diaz, and the government introduced recordings of Diaz making clearly

incriminating statements.

      Sufficient evidence supported Diaz’ convictions on the three theft counts.

Diaz’ recorded, incriminating statements recounting the specifics of the crimes,

coupled with evidence of the crimes—such as video recordings showing Diaz’ car

at a crime scene—were sufficient for a jury to infer that Diaz committed the

crimes.

      Sufficient evidence also supported Diaz’ conviction on the false-statement

count. "[T]he materiality requirement of a § 1001 violation is satisfied if the

statement is capable of influencing or affecting a federal agency." United States v.

Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998). A reasonable jury could

conclude that Diaz’ lie that he did not know about the gun in the car—an important

tool in the planned robbery—was capable of influencing the government’s decision

to prosecute Diaz and, if so, for what crimes.

      4. For the reasons stated in Simon, 2017 WL 2469420, the district court

properly applied the general conspiracy guideline found in U.S.S.G. § 2X1.1.

Accordingly, the court properly applied enhancements for Diaz’ intended conduct,

including the planned abduction, carjacking, and loss amount. U.S.S.G.

§ 2X1.1(a).


                                          3
       But the district court abused its discretion by applying a two-level

enhancement for obstruction of justice under U.S.S.G. § 3C1.1. Diaz falsely told

law enforcement officers that he had no knowledge of the gun in the car. Because

Diaz was not under oath, in order for this enhancement to apply, "the false

statement must constitute an actual impediment, rather than a mere attempt to

impede the investigation [or prosecution]." United States v. McNally, 159 F.3d

1215, 1217 (9th Cir. 1998).

       Diaz’ lie—the denial of knowledge of the gun in the trunk of the car—did

not obstruct or impede the investigation. Given the overwhelming evidence of

Diaz’ guilt, the officers knew all along that he was lying. Had Diaz simply

exercised his right to remain silent, the officers would have had to take the very

same actions that they took, including the interpretive evaluation of the recorded

statements. The government bore the burden of proving Diaz’ guilt beyond a

reasonable doubt. Diaz’ lie did not obstruct or impede that burden at all, because

the government would have presented to the jury the evidence of the recorded

statements, and the meaning of those statements, regardless of Diaz’ lie. Diaz’

simple denial that he had knowledge of the gun in the car falls outside the scope of

§ 3C1.1. See U.S.S.G. § 3C1.1 cmt. n.2 ("A defendant’s denial of guilt (other than

a denial of guilt under oath that constitutes perjury) . . . is not a basis for


                                             4
application of this provision."); United States v. Solano-Godines, 120 F.3d 957,

964 (9th Cir. 1997) (holding that routine investigations that would have occurred

anyway cannot constitute an actual impediment for purposes of § 3C1.1).

      Convictions AFFIRMED; sentence VACATED; and case REMANDED

for resentencing.




                                         5
