                             NOT FOR PUBLICATION                             FILED
                      UNITED STATES COURT OF APPEALS                          MAR 20 2015
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 13-50111

                Plaintiff-Appellee,                D.C. No. 2:11-cr-00329-PSG-3

     v.
                                                   MEMORANDUM
DENISE BROWNING,

                Defendant-Appellant


                      Appeal from the United States District Court
                          for the Central District of California
                      Philip S. Gutierrez, District Judge, Presiding

                        Argued and Submitted February 4, 2015
                                 Pasadena, California

Before:         KLEINFELD and NGUYEN, Circuit Judges, and CARR, Senior
                District Judge.**

          Defendant Denise Browning appeals her conviction and sentence for

willfully aiding or assisting in the filing of false tax returns, in violation of 26

U.S.C. § 7206(2). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §


      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
      The Honorable James G. Carr, Senior United States District Judge for the
Northern District of Ohio, sitting by designation.
3742(a). For the reasons stated below, we affirm the conviction, but vacate the

sentence and remand for resentencing.

      1.     Sufficient evidence supports Defendant’s conviction. The evidence,

viewed in the light most favorable to the government, Jackson v. Virginia, 443

U.S. 307, 319 (1979), demonstrates that Defendant willfully prepared false tax

returns. For example, instead of reporting the actual amount of wages paid to

employees, Defendant only reported the wage amount that matched the amount of

taxes the company already paid.

      In 2005, during an interview with an IRS agent, Defendant acknowledged

that the wages she reported on the returns should match those reported on the

employees’ W-2s. Nevertheless, on a subsequent return, she again underreported

the wages paid to employees. Defendant refused to sign the returns because she did

not want to sign something under penalty of perjury that she knew was false.

Further, the jury viewed email correspondence between Defendant and her boss in

which Defendant asked if she should file certain returns “as is, totally legit.”

      Finally, at trial, Defendant admitted she knew the numbers she wrote on the

returns were false. The jury, based on the evidence before it, reasonably rejected

Defendant’s good-faith defense that she relied on an IRS provision which she

believed allowed her to file the false returns if she later amended them.

                                           2
      2.     As the government correctly concedes, in light of United States v.

Castro-Ponce, 770 F.3d 819 (9th Cir. 2014), we must vacate and remand for

resentencing. The district court imposed a two-level increase in Defendant’s

offense level pursuant to U.S.S.G. § 3C1.1 on the ground that Defendant

committed perjury, but failed to explicitly make findings as to perjury’s three

elements. On remand, the district court must consider each element in deciding

whether to impose the enhancement.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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