                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 06-50007
                 Plaintiff-Appellee,
                v.                                 D.C. No.
                                                CR-05-00457-JAH
JOSE JIMENEZ-ORTEGA,
                                                   OPINION
              Defendant-Appellant.
                                          
         Appeal from the United States District Court
            for the Southern District of California
          John A. Houston, District Judge, Presiding

                 Submitted December 6, 2006*
                     Pasadena, California

                      Filed January 5, 2007

        Before: Stephen Reinhardt, Alex Kozinski and
               Sandra S. Ikuta, Circuit Judges.

                       Per Curiam Opinion




  *This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

                                 121
122           UNITED STATES v. JIMENEZ-ORTEGA


                        COUNSEL

Kasha K. Pollreisz, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.
               UNITED STATES v. JIMENEZ-ORTEGA              123
Carol C. Lam, United States Attorney for the Southern Dis-
trict of California, San Diego, California; Roger W. Haines,
Jr., Assistant United States Attorney, San Diego, California;
Bruce C. Smith, Assistant United States Attorney, San Diego,
California, for the plaintiff-appellee.


                          OPINION

PER CURIAM:

   We address whether a district judge must make a finding of
materiality before he can enhance a defendant’s sentence for
obstruction of justice based on perjury under U.S.S.G.
§ 3C1.1.

                             Facts

   Defendant was apprehended near an Imperial County recre-
ation area after abandoning a Jeep Cherokee packed full of
marijuana. He was charged with importing narcotics and pos-
sessing narcotics with intent to distribute. Defendant testified
at trial and a jury convicted him on both counts.

   At sentencing the judge characterized defendant’s trial tes-
timony as “so incredible, in light of all of the evidence, that
it was clear to the court that you intended to obstruct or
impede justice with your version of the facts. Your testimony
was not the result of any confusion, mistake or faulty mem-
ory, but an attempt to willfully obstruct justice.” The court
imposed an upward adjustment, pursuant to U.S.S.G. § 3C1.1,
increasing defendant’s guidelines range from 70-87 months to
87-108 months.

  On appeal, defendant questions the adequacy of the district
124               UNITED STATES v. JIMENEZ-ORTEGA
judge’s finding that he had obstructed justice by giving false
testimony at trial.1

                                Analysis

   [1] Before it may adjust defendant’s sentence for obstruc-
tion of justice, the district court must find that: 1) defendant
gave false testimony; 2) the testimony was on a material mat-
ter; and 3) defendant had “willful intent” to provide false tes-
timony. United States v. Dunnigan, 507 U.S. 87, 94 (1993).
Here, the judge said that defendant had “wilfully” given “in-
credible testimony,” but he said nothing about the materiality
of defendant’s false statements.

   Our cases provide divergent guidance on how we deal with
this situation. In United States v. Jimenez, 300 F.3d 1166,
1171 (9th Cir. 2002), we remanded, citing Dunnigan, where
a judge said that defendant had “knowingly lied on the stand”
but never stated whether defendant provided false testimony
on a material issue. However, in United States v. Arias-
Villaneuva, 998 F.2d 1491 (9th Cir. 1993), the district judge
enhanced defendant’s sentence for obstruction of justice after
finding that he “testified untruthfully,” without making a find-
ing on materiality. Id. at 1512-13. We determined, based on
the appellate record, that defendant’s false testimony related
to material issues in the case and upheld the sentence without
remanding.

  [2] The different approaches taken by the panels in Arias-
Villaneuva and Jimenez can be explained by an intervening
  1
    Defendant also claims that the prosecutor made comments in his clos-
ing argument that shifted the burden of proof to defendant. However, the
comments defendant points out are similar to those made by the prosecu-
tor in United States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991), where
we held that comments that merely “challenge the other [side] to explain
to the jury uncomfortable facts and inferences” do not constitute imper-
missible burden shifting. As in Mares, the prosecutor here did not shift the
burden of proof to defendant.
                 UNITED STATES v. JIMENEZ-ORTEGA                    125
Supreme Court case, United States v. Gaudin, 515 U.S. 506
(1995). There the Court held that materiality must be decided
by the trier of fact. Id. at 522-23. Prior to that decision, mate-
riality was commonly understood as a purely legal question,
and thus one that the court of appeals could decide in the first
instance. Indeed, Arias-Villaneuva relied on one of our pre-
Gaudin cases, United States v. Clark, 918 F.2d 843, 846 (9th
Cir. 1990), for the proposition that materiality is a purely legal
issue. In United States v. Keys, 95 F.3d 874, 878 (9th Cir.
1996), we recognized that Clark was no longer good law after
Gaudin. Thus, while it was acceptable at the time of Arias-
Villaneuva for our court to make a ruling on materiality rather
than remand, this was no longer true when Jimenez was
decided. Post-Gaudin, the materiality of a false statement is
one of the factual predicates of an obstruction enhancement,
and we must remand where the district court failed to make
a finding on this point.2

   [3] Normally, conflicts in our caselaw cannot be resolved
by a three-judge panel. See Atonio v. Wards Cove Packing
Co., 810 F.2d 1477, 1478-79 (9th Cir. 1987) (en banc). But
in Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en
banc), we recognized an exception to this rule when one of
our opinions has been superceded by intervening Supreme
Court authority. Such is the case here. Gaudin implicitly over-
ruled the portion of Arias-Villaneuva dealing with the district
court’s failure to make a finding on materiality. Jimenez thus
controls and we remand for resentencing.

  REMANDED.




  2
    The government has not argued that the error here was harmless, and
this is not among the extraordinary cases that merit sua sponte consider-
ation of the issue. See United States v. Gonzalez-Flores, 418 F.3d 1093,
1101 (9th Cir. 2005).
