                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 13-30040
                Plaintiff-Appellee,
                                            D.C. No.
                 v.                      2:12-cr-00195-
                                             JLR-4
TERAZZE A. TAYLOR,
             Defendant-Appellant.          OPINION


      Appeal from the United States District Court
        for the Western District of Washington
       James L. Robart, District Judge, Presiding

               Argued and Submitted
        February 6, 2014—Seattle, Washington

                 Filed April 18, 2014

   Before: Raymond C. Fisher, Ronald M. Gould and
          Morgan B. Christen, Circuit Judges.

               Opinion by Judge Fisher
2                  UNITED STATES V. TAYLOR

                           SUMMARY*


                          Criminal Law

    Affirming a sentence for defrauding the Veteran’s
Administration, the panel held that a defendant who willfully
provides materially false testimony at a bond revocation
hearing may be subject to an enhancement for obstruction of
justice under U.S.S.G. § 3C1.1.

    The panel held that the defendant’s testimony to the
magistrate judge during a bond revocation hearing was
material as defined in the commentary to § 3C1.1, that a
specific finding of “perjury” was not required, and that the
district court made sufficient findings to support the
enhancement as an attempt to obstruct or impede the
administration of justice with respect to prosecution “of the
instant offense of conviction.”


                            COUNSEL

Sharon J. Blackford (argued), Sharon Blackford PLLC,
Seattle, Washington, for Defendant-Appellant.

Helen J. Brunner (argued), S. Kate Vaughan, Assistant United
States Attorneys, Jenny A. Durkan, United States Attorney,
Seattle, Washington, 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. TAYLOR                     3

                         OPINION

FISHER, Circuit Judge:

    Defendant Terazze Taylor appeals the district court’s
imposition of a two-level enhancement for obstruction of
justice under U.S. Sentencing Guidelines Manual (U.S.S.G.)
§ 3C1.1, based on Taylor’s false and misleading testimony at
a bond revocation hearing in this case. We hold that Taylor’s
willful, false statements during the bond revocation hearing
warranted enhancement as an attempt to obstruct or impede
the administration of justice with respect to the prosecution
“of the instant offense of conviction.” Id. We therefore
affirm his sentence.

                              I

    In July 2012, Taylor was arrested for submitting
fraudulent travel vouchers to the Veteran’s Administration
(VA). A veteran of Operation Iraqi Freedom, Taylor
frequently traveled to a VA Medical Center for various
medical appointments. He sought reimbursement for his
travel expenses, but intentionally gave an incorrect address on
the form, thereby increasing the amount of each
reimbursement by $165. He also sought reimbursement for
days he did not attend any medical appointments. In total,
Taylor fraudulently obtained approximately $16,599 in travel
reimbursements from the VA.

    After his arrest, Taylor was released on a pretrial
appearance bond with the standard condition that he not
commit a further federal, state or local crime. Shortly
thereafter, however, Taylor was charged with domestic
violence for allegedly assaulting his ex-girlfriend, Jovan
4                UNITED STATES V. TAYLOR

Ness. The state prosecutor dismissed the charges without
prejudice, but Taylor was arrested on a federal warrant for
violating a condition of his appearance bond in this case,
prompting a pretrial bond revocation hearing.

    At the hearing, the government presented the testimony
of an independent eyewitness, two police officers and
Taylor’s probation officer on the merits of the domestic
violence charges. The independent witness testified that she
observed Taylor physically assaulting Ness and pulling her
forcefully from her vehicle while Ness screamed for
assistance. One of the police officers testified that Ness told
him Taylor had assaulted her. Another police officer who
spoke with Taylor after the incident testified that Taylor
denied having had any interaction with Ness at all that day.
According to the probation officer, however, Taylor’s GPS
monitoring bracelet indicated that he was within 10 feet of the
location of the alleged assault for approximately three
minutes at the time in question.

    Taylor testified on his own behalf, as did Ness, the
alleged victim. Ness denied that Taylor had assaulted her,
claiming instead that Taylor was attempting to stop her from
driving her car, as she was heavily medicated for pain at the
time of the incident. She also denied telling the police she
had been assaulted, although she acknowledged that she had
obtained a restraining order against Taylor the day of the
incident. For his part, Taylor denied physically assaulting
Ness but did admit to being at the scene of the incident
briefly, testifying that he was attempting to stop Ness from
driving her vehicle while medicated.

   At the conclusion of the hearing, the magistrate judge
found by a preponderance of the evidence that Taylor had
                   UNITED STATES V. TAYLOR                             5

committed the assault. The judge credited the testimony of
the independent witness and the two officers, and found that
Ness “did not, in appearance to me, seem that she was
completely testifying candidly, and her denials to me were
not believable.” The judge also found that Taylor’s testimony
was contradicted on key points by that of the officers.
Without further commenting on Taylor’s veracity, the
magistrate judge revoked Taylor’s appearance bond.

    Taylor ultimately pled guilty to defrauding the VA. At
sentencing, relying on the magistrate judge’s findings and a
recording of Taylor’s testimony at the bond hearing, the
district court imposed a two-level enhancement for
obstruction of justice under section 3C1.1.1 Taylor now
challenges the enhancement.

                                   II

    Section 3C1.1 provides for a two-level increase in the
offense level if:

         (1) [T]he defendant willfully obstructed or
         impeded, or attempted to obstruct or impede,
         the administration of justice with respect to
         the investigation, prosecution, or sentencing
         of the instant offense of conviction, and (2)
         the obstructive conduct related to (A) the


  1
     The district court concluded in the alternative that the obstruction
enhancement could be based on telephone calls Taylor made to two
women while he was incarcerated at the federal detention center, urging
them to convince Ness to try to “fix this situation.” Because Taylor’s
testimony at the bond revocation hearing was sufficient to support his
enhancement for obstruction, we do not address this alternative ground.
6                UNITED STATES V. TAYLOR

        defendant’s offense of conviction . . . or (B) a
        closely related offense . . . .

U.S.S.G. § 3C1.1.         Conduct that may trigger this
enhancement includes “committing, suborning, or attempting
to suborn perjury” or “providing materially false information
to a judge or magistrate judge.” Id. § 3C1.1 cmt. n.4(B), (F).

    The district court imposed a two-level increase based on
what it found to be Taylor’s false testimony at the bond
revocation hearing. It reasoned that part of the prosecution of
the underlying offense of conviction involved a determination
of whether Taylor should “be detained or should . . . not be
detained,” and an “outright falsehood during that detention
period” is “part of [that] process.” We review de novo the
“district court’s characterization of [Taylor’s] conduct as
obstruction within the meaning of Section 3C1.1,” and we
review its factual findings for clear error. United States v.
Shetty, 130 F.3d 1324, 1333 (9th Cir. 1997).

    Taylor argues that a two-level increase for obstruction of
justice is unwarranted under section 3C1.1, because his
statements at the bond revocation hearing were not related to
the “instant offenses of conviction” for defrauding the VA, or
any relevant conduct with respect to those offenses. In
Taylor’s view, his testimony concerning the alleged domestic
violence incident had no potential to impede the investigation
or disposition of the underlying federal offenses because his
custodial status was not related to the substance of his federal
charges.

    We are unpersuaded by Taylor’s arguments, because his
restrictive reading of section 3C1.1 is contrary to our case law
interpreting section 3C1.1 and the accompanying application
                 UNITED STATES V. TAYLOR                        7

notes. First, the phrase “prosecution of . . . the instant offense
of conviction” in section 3C1.1 is not limited to the
adjudication on the merits of the underlying criminal charges;
it also encompasses certain proceedings and procedures
collateral to that adjudication. As the district court
recognized, whether a defendant warrants pretrial detention
is an integral part of any federal prosecution. A judicial
officer must make an initial determination of whether the
accused shall be released before trial, 18 U.S.C. § 3142(a), or
if detention is required because “no condition or combination
of conditions will reasonably assure the appearance of the
person as required and the safety of any other person and the
community,” id. § 3142(e)(1). In making this determination,
a judicial officer is guided by the work of pretrial services
officers, who must obtain “information pertaining to the
pretrial release of each individual charged with an offense.”
Id. § 3154(1). We have therefore held that lying to pretrial
services officers, conduct that can potentially impede this
inquiry, may warrant the obstruction enhancement under
section 3C1.1. See United States v. Magana-Guerrero, 80
F.3d 398, 400–01 (9th Cir. 1996); United States v. Benitez, 34
F.3d 1489, 1497 (9th Cir. 1994) (upholding obstruction
enhancement for providing false information to a pretrial
services officer because it “impeded the investigation and
prosecution” of the underlying offense).

    It follows that a bond revocation hearing is also part of
the prosecution of a federal offense, as Taylor’s case
demonstrates. At the bond revocation hearing, the magistrate
judge had to determine whether Taylor should be detained
pending his federal trial based on the alleged domestic
violence crime, taking into account the same factors that
undergird an initial detention determination. See 18 U.S.C.
§ 3148(b). Taylor’s false statements to the magistrate judge,
8                UNITED STATES V. TAYLOR

who had to take evidence and make credibility findings in
making her determination, were an attempt to influence the
outcome of the revocation hearing and thus obstruct “the
administration of justice with respect to the . . . prosecution
. . . of the instant offense[s] of conviction.” U.S.S.G.
§ 3C1.1. The application notes to section 3C1.1 confirm that
Taylor’s conduct qualifies as obstruction, because he
“provid[ed] materially false information to a . . . magistrate
judge.” U.S.S.G. § 3C1.1 cmt. n.4(F).

    Second, contrary to Taylor’s argument, his false
statements were also “related to . . . [his] offense[s] of
conviction.” U.S.S.G. § 3C1.1. There is no requirement
under section 3C1.1 “that the obstructive conduct relate
substantively to the offense of which the defendant is
convicted,” so long as the conduct relates to the investigation,
prosecution or sentencing of the underlying federal offense.
United States v. Hernandez-Ramirez, 254 F.3d 841, 844 (9th
Cir. 2001) (emphasis added); see also United States v. Verdin,
243 F.3d 1174, 1180 (9th Cir. 2001) (rejecting the argument
that “false statements about [the defendant’s] identity” cannot
support an obstruction enhancement when the statements lack
a substantive relationship to the offense of conviction);
United States v. O’Dell, 204 F.3d 829, 837 (8th Cir. 2000)
(noting that the Eighth Circuit has “repeatedly upheld an
enhancement under section 3C1.1 where the perjurious
testimony did not go to the underlying charge”); United
States v. Crousore, 1 F.3d 382, 385 (6th Cir. 1993) (“[T]he
test is not whether the false statement was about the actual
crime charged, but whether it was made during the
investigation, prosecution, or sentencing of the ‘instant
offense.’”). Following this principle, we have upheld an
obstruction enhancement when a defendant made false
statements on a financial affidavit to obtain court-appointed
                   UNITED STATES V. TAYLOR                             9

counsel, see Hernandez-Ramirez, 254 F.3d at 843–44, and
when a defendant provided false information, unrelated to the
offense of conviction, to a probation or pretrial services
officer, see Verdin, 243 F.3d at 1179–80; Magana-Guerrero,
80 F.3d at 400–01; Benitez, 34 F.3d at 1497. Under the
proper standard, Taylor’s false testimony during his bond
revocation hearing was related to the prosecution of his
offenses of conviction, supporting an obstruction
enhancement.2

    Accordingly, we hold that a defendant who willfully
provides materially false testimony to a judge during a bond
revocation hearing may be subject to a sentence enhancement
under section 3C1.1. See O’Dell, 204 F.3d at 836–37
(upholding a section 3C1.1 enhancement for a defendant who
lied to the magistrate judge during a bond revocation
hearing); see also United States v. Butters, 513 F. App’x 103,
105 (2d Cir. 2013) (“[F]alsely obtaining bail has the potential
to impede the investigation or prosecution of a case . . . .”)
(internal quotation marks and citation omitted); United States
v. Davidson, 417 F. App’x 347, 349–50 (4th Cir. 2011) (per
curiam) (upholding enhancement for obstruction based on the
defendant’s intentional, false testimony during a bond
revocation hearing).



  2
    The Second Circuit’s decision in United States v. Khimchiachvili, 372
F.3d 75 (2d Cir. 2004), vacated on other grounds sub nom. Berwick v.
United States, 544 U.S. 917 (2005), has no application here.
Khimchiachvili parted ways with this court’s decision in Hernandez-
Ramirez, the Second Circuit holding that making false statements in a
financial affidavit to obtain court-appointed counsel did not trigger an
obstruction enhancement. Id. at 82–83. Even if Khimchiachvili has any
bearing on the issue for decision here, which we doubt, we are bound by
the contrary decision of our court.
10               UNITED STATES V. TAYLOR

    Even accepting our interpretation of the sentencing
guidelines, Taylor maintains that an enhancement for
obstruction is not appropriate because he did not provide
“materially” false testimony to the magistrate judge, as
required by application note 4(F). Taylor’s testimony was
material as that term is defined in the commentary to section
3C1.1, however, because Taylor provided “information that,
if believed, would tend to influence or affect the issue under
determination.” U.S.S.G. § 3C1.1 cmt. n.6. The “issue under
determination” was not whether Taylor committed the
charged fraud and conspiracy offenses, but whether his bond
should have been revoked. See Hernandez-Ramirez, 254 F.3d
at 844 (holding that false information in the defendant’s
financial affidavit was material because this information
would tend to affect “whether the magistrate judge found him
qualified for appointed counsel”); Magana-Guerrero, 80 F.3d
at 400 (holding that a lie to a pretrial officer was material
because if “believed, it could have influenced matters such as
his entitlement to bail or his sentence”). Indeed, the Eighth
Circuit upheld the enhancement on facts essentially identical
to those here, rejecting the defendant’s argument that his
perjurious testimony in his bond revocation hearing was not
material. See O’Dell, 204 F.3d at 837 (holding that “the
‘issue under determination’ was whether [the defendant]’s
pretrial release should be revoked”). Because Taylor’s
testimony, if believed, could have affected his custodial status
pending trial, his statements were material under section
3C1.1.

    Finally, Taylor argues that absent an explicit finding of
perjury by the magistrate judge, there was no way for the
district court to determine whether Taylor had the required
mens rea for the obstruction enhancement – that he
“willfully” provided false testimony on a material matter.
                 UNITED STATES V. TAYLOR                       11

U.S.S.G. § 3C1.1. We disagree. As long as the district court
made sufficient findings that the defendant acted willfully, a
specific finding of “perjury” was not required to support the
obstruction enhancement for providing false testimony to the
magistrate judge. See id. § 3C1.1 & cmt. n.4(F). Whether
Taylor’s testimony is viewed as committing perjury, see id.
§ 3C1.1 cmt. n.4(B), or providing false information to a
judge, see id. § 3C1.1 cmt. n.4(F), the elements of an
obstruction enhancement here are the same. A defendant
commits perjury for purposes of section 3C1.1 if, while under
oath, he “gives false testimony concerning a material matter
with the willful intent to provide false testimony, rather than
as a result of confusion, mistake, or faulty memory.” United
States v. Dunnigan, 507 U.S. 87, 94 (1993) (citing 18 U.S.C.
§ 1621(1)). Similarly, an obstruction enhancement for
“providing materially false information to a judicial officer
. . . includes a requirement of willful intent to deceive the fact
finder.” O’Dell, 204 F.3d at 836 (quoting United States v.
Molina, 172 F.3d 1048, 1058 (8th Cir. 1999)) (internal
quotation marks omitted).

    Under either formulation, “the term ‘willfully’ requires
that the defendant ‘consciously act with the purpose of
obstructing justice.’” United States v. Lofton, 905 F.2d 1315,
1316–17 (9th Cir. 1990) (quoting United States v. Stroud, 893
F.2d 504, 507 (2d Cir. 1990)). Because “inaccurate
testimony or statements sometimes may result from
confusion, mistake, or faulty memory[,] . . . not all inaccurate
testimony or statements necessarily reflect a willful attempt
to obstruct justice.” U.S.S.G. § 3C1.1 cmt. n.2. Therefore,
when a defendant objects to a sentence enhancement for
obstruction of justice on this basis, “a district court must
review the evidence and make independent findings
necessary to establish a willful impediment to or obstruction
12               UNITED STATES V. TAYLOR

of justice, or an attempt to do the same.” Dunnigan, 507 U.S.
at 95.

    The district court made sufficient findings here. Although
the magistrate judge did not explicitly find that Taylor lied
under oath, it is clear from the record that she did not believe
Taylor’s testimony, as she concluded that his version of the
incident was contrary to the testimony of the independent
witness and the police officers, whom she credited. The
district court noted that it had listened to a recording of the
hearing and found that Taylor had, “clearly and
unambiguously and under oath,” told “a story” that was
“simply not true, based on the totality of the evidence” in “an
effort to persuade the magistrate that [he] should not be taken
back into custody.” The district court also found that
Taylor’s false statements did not “demonstrate confusion.”
These are sufficient findings to support an obstruction
enhancement, and, “[g]iven the numerous witnesses who
contradicted [Taylor] regarding so many facts on which [he]
could not have been mistaken,” not clearly erroneous.
Dunnigan, 507 U.S. at 95–96; see also Hernandez-Ramirez,
254 F.3d at 843; Magana-Guerrero, 80 F.3d at 400
(upholding a finding of willfulness based on an inference
from the conflicting testimony of the probation officer and
the defendant).

                              III

    For the foregoing reasons, we hold that a defendant who
willfully provides materially false testimony at a bond
revocation hearing may be subject to an enhancement for
               UNITED STATES V. TAYLOR               13

obstruction of justice under section 3C1.1. We therefore
affirm Taylor’s sentence.

   AFFIRMED.
