                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 02 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-10441

              Plaintiff-Appellee,                DC No. CR 10-377 WBS

 v.

JAMES BERGHUIS,                                  MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                            Submitted October 9, 2018**
                             San Francisco, California

Before:      TASHIMA and MURGUIA, Circuit Judges, and HINKLE,*** District
             Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
      ***
            The Honorable Robert L. Hinkle, United States District Judge for the
Northern District of Florida, sitting by designation.
      Defendant-Appellant James Berghuis ran a Ponzi scheme in which his

investors lost at least $2.7 million. When he did not repay one of his investors as

promised, the investor sued him. On July 7, 2008, Berghuis admitted in a

deposition that he owed the amount claimed by the investor but falsely testified

that he used the money for real estate transactions and promissory notes, when in

fact he used the money for Ponzi payments to past investors, personal expenses,

gifts to family, credit card balances, and overdraft fees. Berghuis was later

convicted of nine counts of mail fraud, wire fraud, and money laundering.

Berghuis appeals the 168 month sentence imposed by the district court at

resentencing. He argues that there was no support in the record for the district

court’s imposition of an obstruction of justice enhancement under U.S.S.G. §

3C1.1, and he argues that the 168-month prison sentence was an abuse of

discretion because it was a “substantial variance” above the guideline range. We

affirm.

      1.     An obstruction of justice sentencing enhancement may be based on

perjury committed in a civil lawsuit if the perjury pertains to conduct that forms

the basis of the offense of conviction. U.S.S.G. § 3C1.1 cmt. n.4(B); see United

States v. Gilchrist, 658 F.3d 1197 (9th Cir. 2011). The enhancement may cover

perjury committed “prior to the start of the investigation of the instant offense of


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conviction . . . if the conduct was purposefully calculated, and likely, to thwart the

investigation or prosecution of the offense of conviction.” U.S.S.G. § 3C1.1 cmt.

n.1. To support an obstruction of justice enhancement, the district court must

explicitly find that the obstructive conduct: (1) occurred with respect to the

investigation of the defendant’s instant offense of conviction; (2) related to the

defendant’s offense of conviction and any relevant conduct; and (3) was material.

Id.; United States v. Herrera-Rivera, 832 F.3d 1166, 1174–75 (9th Cir. 2016); see

also United States v. Jimenez-Ortega, 472 F.3d 1102, 1103–04 (9th Cir. 2007).

      Here, the district court made explicit factual findings for all three elements

of the obstruction enhancement, finding that Berghuis’ perjury: (1) occurred with

respect to the investigation into his criminal Ponzi scheme, (2) sufficiently related

to his Ponzi scheme, and (3) was purposely calculated, and likely, to thwart a

potential criminal investigation regarding his scheme. Therefore, the district court

did not abuse its discretion in imposing the enhancement.

      2.     Sentences are reviewed for reasonableness, and only a procedurally

erroneous or substantively unreasonable sentence is set aside. See Gall v. United

States, 552 U.S. 38, 46, 51 (2007). “A substantively reasonable sentence is one

that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s

sentencing goals.” United States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012)


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(en banc) (quoting 18 U.S.C. § 3553(a)). When a sentence varies from the

guidelines, due deference is given “to the district court’s decision that the §

3553(a) factors, on a whole, justify the extent of the variance.” United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (quoting Gall, 552 U.S. at 51).

      Here, the district court correctly calculated the advisory sentencing guideline

range of 121 to 151 months and then carefully considered all of the sentencing

factors found in 18 U.S.C. § 3553(a). Based on these considerations, the district

court determined that an above-guidelines sentence of 168 months was “sufficient

but not greater than necessary in order to send out the right message to others who

might be inclined to commit this crime, in order to protect potential victims from

Mr. Berghuis’s similar conduct in the future, and in order to make sure that crime

doesn’t pay for him.” The district court did not commit a procedural error nor was

the sentence substantively unreasonable; the district court did not abuse its

discretion in sentencing Berghuis to 168 months of incarceration.

                                      •   !    •

      The judgment of the district court is AFFIRMED.




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