          United States Court of Appeals
                     For the First Circuit


No. 17-1058

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         MICHAEL NAGELL,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                             Before

                  Torruella, Lynch, and Barron,
                         Circuit Judges.



     Luke S. Rioux and Rioux, Donahue, Chmelecki & Peltier, LLC on
brief for appellant.
     Benjamin M. Block, Assistant United States Attorney, and
Halsey B. Frank, United States Attorney, on brief for appellee.



                        December 19, 2018
              TORRUELLA, Circuit Judge.        A jury convicted Defendant-

Appellant Michael Nagell ("Nagell"), a registered sex offender, of

knowingly failing to update his registration, in violation of

18 U.S.C. § 2250(a).      At sentencing, the district court imposed a

two-level obstruction of justice enhancement pursuant to U.S.S.G.

§ 3C1.1, after finding that Nagell had committed perjury when he

testified at trial in his own defense.             The district court then

sentenced him to thirty months' imprisonment, at the middle of his

Guidelines sentencing range ("GSR").             Nagell now challenges the

district   court's    finding     of   obstruction      of     justice    and    the

resulting sentencing enhancement.            We affirm.

                             I.    Background

              In 2007, Nagell was convicted on two counts of coercion

and enticement of a minor, in violation of 18 U.S.C. § 2422(b),

and one count of traveling to engage in illicit sexual activity,

in violation of 18 U.S.C. § 2423(b).             He was sentenced to sixty

months   of    incarceration,     to   be    followed     by    eight    years   of

supervised release.       As a mandatory condition of his release,

under    the    Sex   Offender    Registration      and        Notification      Act

("SORNA"), Nagell became a registrant in the Maine Sex Offender

Registry (the "Registry") upon his release from prison.

              Nagell was required to annually complete and return a

"verification form" to the Registry.              With that form, he also

needed to include a current passport photo and pay a twenty-five

                                       -2-
dollar fee.   Additionally, if he changed his domicile, residence,

employment, or school between verification cycles, Nagell had to

notify local law enforcement within twenty-four hours of that

change, and also file a "notice of change of information report"

with the Registry within five days.1    Nagell acknowledged all of

these requirements in writing during his initial registration as

a sex offender, and received numerous reminders from his probation

officers and case workers in the years that followed.

          Between 2012 and May 2015, Nagell's supervised release

was twice revoked, and he received prison sentences for failing to

comply with the conditions of his release, followed by additional

periods of supervised release.   During this period of time, Nagell

also filed several annual verification and change of information

reports with the Registry.    Nagell's third period of supervised

release began in July 2015.   As a condition of this third period

of supervised release, he was placed in the Pharos House, a federal

halfway house in Portland, Maine, which aims to facilitate the

reintegration of convicts into society.




1  There is a discrepancy in the record as to whether Nagell had
to file his notice of change of information report with the
Registry within three or five days after changing his domicile,
residence, employment, or school, but the testimony at trial was
that it was within five days and that issue is nevertheless
immaterial in this case.


                                 -3-
            Following his placement at Pharos House, Nagell held

several jobs.        Immediately after his arrival at Pharos House,

Nagell's case manager, Kimberly Hartley ("Kim Hartley"), helped

him apply to Single Source Staffing ("SSS"), a temporary employment

agency.     SSS hired him.      In September 2015, SSS placed Nagell at

Earle W. Noyes & Sons Moving Specialists, Inc. ("Noyes") and, in

October 2015, at Emery-Waterhouse Company ("Emery-Waterhouse").2

Between    October    2015   and    December    10,   2015,   Nagell   received

concurrent SSS assignments at both Emery-Waterhouse and Noyes.               On

December 21, 2015, Nagell informed his probation officer that he

had been hired as a full-time employee by Noyes and that his prior

employment with SSS (and consequently with Emery-Waterhouse) had

ceased.3    From July 2015 to April 2016, the only Registry updates

regarding employment changes were filed on December 28, 2015 and

January     13,   2016,   and      listed    Emery-Waterhouse    as    Nagell's

employer.

            Nagell's residency information also changed during this

period.    In September 2015, he moved out of Pharos House and back

into his pre-conviction residence in Bath, Maine.                 Although he

notified his probation officer of his change of address, he did


2  Between July 2015 and December 2015, Nagell was also employed
by Allstate Cleaners and by a moving company named Bunzl, though
not through SSS.
3   Nagell worked full-time at Noyes until late April 2016.


                                       -4-
not file the corresponding notice of change of information report

with the Registry.      Consequently, in November 2015, the Registry

mailed Nagell's annual verification form to Pharos House.               The

form was twice returned to the Registry as undeliverable, and

finally reached Nagell at his new address after the Bath Police

Department informed the Registry of Nagell's new residence.

           On December 28 or 29, 2015, Nagell completed his annual

verification form, along with a notice of change of information

report updating his residence and employer information, at the

Bath Police Department.4       In the report, however, he identified

his employer as "Emery & Waterhouse," even though he had become a

full-time employee at Noyes on December 21, 2015, and had ended

his professional affiliation with Emery-Waterhouse and SSS earlier

in   December   2015.    The   Registry   received   Nagell's   forms    on

January 4, 2016.     Because Nagell did not provide a full physical

address for his listed employer, the Registry sent a letter back

to Nagell on January 4, 2016, requesting that he provide his

employer's address.      In response, Nagell submitted a new notice

of change of information report, dated January 13, 2016, in which

he once again listed Emery-Waterhouse as his employer and included




4  It seems that Nagell signed the form on December 28th, but
completed other sections of the form on December 29th.


                                   -5-
its address.     The Registry received that new form on January 20th.

Nagell did not update his employment information after that.

            Nagell continued to work full-time at Noyes until late

April 2016.     On April 27, 2016, Nagell's probation officer filed

a petition to revoke Nagell's supervised release for, inter alia,

failing    to   provide   the   Registry   with   his   updated   employment

information.     The court issued an arrest warrant and, on May 3,

2016, Nagell was arrested.       A one-count Information charged Nagell

with knowingly failing to update his sex offender registration

between December 2015 and April 2016, in violation of 18 U.S.C.

§ 2250(a).5     A two-day jury trial in the United States District

Court for the District of Maine followed.

            The parties entered a stipulation as to the first two

elements of the crime, namely, that Nagell was a sex offender under

SORNA by reason of a conviction under federal law, and that as a

result of that conviction, he was required to register under SORNA.

The only contested issue that remained was whether Nagell knowingly

failed to update his employment information at the Registry between

December 2015 and April 2016, as required by SORNA.


5   18 U.S.C. § 2250(a) reads, in part:

          Whoever . . . is required to register under the Sex
          Offender Registration and Notification Act; . . .
          knowingly fails to register or update a registration
          as required by the Sex Offender Registration and
          Notification Act shall be fined under this title or
          imprisoned not more than 10 years, or both.

                                     -6-
           At trial, the following five witnesses testified for the

government's case-in-chief: Nagell's Probation Officer, Kristin

Cook; SSS's Director of Recruiting, Jeremy Jackson; Noyes's Vice

President, William Noyes; Office Associate II at the Registry,

Sally Taylor; Bath Police Department Detective, Andrew Booth.        The

defense's only witness was Nagell, who took the stand in his own

defense.      Nagell's testimony led the prosecution to call Kim

Hartley as a rebuttal witness.          The jury found Nagell guilty as

charged.

           At sentencing, the government -- arguing that Nagell had

willfully obstructed the administration of justice by committing

perjury at trial -- asked for a two-level enhancement pursuant to

U.S.S.G. § 3C1.1.      The government relied on two instances at trial

where witness testimony directly contradicted Nagell's statements

under oath.

           The    first      instance     involved   Nagell's   testimony

concerning his state of mind as to his failure to register.           On

direct examination, Nagell claimed that Kim Hartley, his case

manager at Pharos House, had told him that she had updated his

information at the Registry.        When asked why he did not report

Noyes as his current employer, Nagell responded, "Because when I

was at the halfway house Kim said everything was taken care of.

So she said she put my current jobs and current address on the

information,     but   the   form   never    appeared."    During   cross

                                    -7-
examination, when the prosecutor asked Nagell whether he had sent

any notice of change of information report to the Registry updating

his employment information while at Pharos House, Nagell responded

that he didn't because "Kim said she took care of that. . . . I

asked her twice."

          Kim Hartley's testimony as a rebuttal witness directly

contradicted Nagell's statements on the stand.       The following

exchange is illustrative:

          Q: As a general matter, when a resident of
          Pharos House, somebody . . . who is part of
          your caseload, obtains employment outside the
          house, have you ever notified the sex offender
          registry on their behalf?

          A: Never.

          Q: Have you ever told –- told one of the
          residents that you would do that on their
          behalf?

          A: Never.

          Q: With respect to Mr. Nagell specifically,
          did you ever notify the sex offender registry
          of changes in his employment on his behalf?

          A: No.

          Q: Did you ever tell him that you would do
          that?

          A: No.

          On cross-examination, Kim Hartley testified that she had

met with Nagell thirty to forty times during his time at Pharos




                               -8-
House, and could not recall that Nagell ever "spoke to [her] about

the issue of registration."

            The second instance of contradictory testimony concerned

Nagell's alleged visit to the Bath Police Department on January 13,

2016.     According to Detective Booth's testimony, the Bath Police

Department's practice was to create an internal record of any

contact with a member of the public, referred to as an "incident"

report.     Detective Booth further testified that the Bath Police

Department had record of only two incident reports involving Nagell

between December 2015 and January 2016.                   The first one, dated

December 29, 2015, indicated that Nagell visited the police station

to complete his annual verification form and a notice of change of

information      report     with    Detective     Marc    Brunelle    ("Detective

Brunelle"),      a    sex   offender     specialist. 6     The   second   incident

report, dated January 7, 2016, pertained to the notice that the

Bath    Police       Department    had   issued   to     Nagell's    neighborhood,

informing that a sex offender lived in the area.

            According to Detective Booth, on December 28, 2015,

Nagell signed the verification form and notice of change of

information report mailed to him by the Registry, in which he

identified Emery-Waterhouse as his employer, despite the fact that



6  The form is dated December 28th but Detective Booth testified
that Nagell visited the station on December 29th.


                                          -9-
he no longer worked there.          He failed to include the physical

address of his new employer.          Detective Booth further testified

that, on December 29, 2015, Nagell met with Detective Brunelle at

the   Bath    Police   Department   regarding   his    registration     forms.

Detective      Brunelle    verified     Nagell's      identity,     took   his

fingerprints, and filled out the lower half of the verification

form.    He also scanned a copy of the forms for the Department's

records before mailing them to the Registry.               All of this was

standard practice.

             The Registry received Nagell's forms on January 4, 2016.

Because Nagell did not provide a complete physical address for his

listed employer, the Registry requested that Nagell provide his

employer's address information and enclosed a blank notice of

change of information report.

             On January 13, 2016, Nagell filled out and signed the

notice   of     change    of   information   report,      providing    Emery-

Waterhouse's complete address, even though he no longer worked

there.   The form did not list Noyes as an employer.              The Registry

received the updated form on January 20, 2016.              Nagell did not

update his employment information after January 20, 2016.

             During direct examination, Nagell claimed that he had

filled out the January 13 form at the Bath Police Department with

a police officer other than Detective Brunelle.              Nagell claimed

that there was a second page to this report, and that on it "the

                                      -10-
detective wrote [']self-employed,['] put 27 Cobb Road on, and also

put Noyes, and I didn't have the address for Noyes."                   Nagell also

testified that he went home to get the address for Noyes and that

he called the Bath Police Department the next day to relay it to

the officer.        But, Nagell explained, the officer who had helped

him the day before was out, so he communicated the address to the

woman    who    answered   the   call.       This    testimony,       however,   was

strongly contradicted by that of Detective Booth, who testified

that the Bath Police Department did not have any incident report

for Nagell's alleged visit to the Department on January 13th or a

scanned copy of the form.           Pursuant to the Department's standard

practice, it would have had both of these things had Nagell gone

to the Department on January 13th.

               According to the government, Nagell's testimony about

Kim     Hartley's    statements     and   his       alleged,    yet    unrecorded,

January 13, 2016 visit to the Bath Police Department were clear

instances      of   perjury   and   constituted       grounds    to    impose    the

obstruction of justice enhancement.           The government further argued

that the jury's rejection of Nagell's statements also supported a

finding of perjury.           Nagell's defense counsel objected to the

sentencing enhancement, claiming that the differing testimonies

did not amount to perjury.          Rather, defense counsel insisted they

merely    reflected    different     recollections       of    events.     Defense

counsel further argued against a finding of perjury by suggesting

                                      -11-
that   Kim    Hartley   could   not    remember   the   content   of   every

conversation she had with Nagell and that, because one page of the

January 13, 2016 notice of change of information report made it to

the Registry, there was "some basis for [Nagell] to believe that

he had in fact submitted the full documentation to the [Registry]."

             The sentencing judge, who also presided over the trial,

found that,

        [T]he defendant committed perjury during the course
        of that hearing on a material matter . . . in asserting
        that his caseworker at Pharos House, Kim Hartley, had
        told him that she would handle the registration for
        him and that he assumed that his registration had been
        updated.   I believe Ms. Hartley testified that she
        never promised that she would do that. I also find
        that Mr. Nagell never hand delivered a registration
        update form to the Bath Police Department and that he
        relied on the Bath Police Department to deliver that
        form to the State.       I find that, based on the
        testimony of Detective Booth, that testimony is
        unbelievable and I find it to be perjurious.

             Accordingly, the judge applied a two-level enhancement

pursuant to U.S.S.G. § 3C1.1,7 which increased Nagell's offense



7   Section 3C1.1 of the Sentencing Guidelines states as follows:

        If (1) the 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 offence of
        conviction, and (2) the obstructive conduct related
        to (A) the defendant's offense of conviction and any
        relevant conduct; or (B) a closely related offense,
        increase the offense level by 2 levels.

U.S.S.G. § 3C1.1.


                                      -12-
level    from    fourteen,     see     U.S.S.G.    § 2A3.5(a)(2),       to   sixteen.

This, in conjunction with Nagell's criminal history category of

III,    yielded    a    GSR    of    twenty-seven      to   thirty-three        months'

imprisonment.      The district court thereafter sentenced Nagell to

thirty months in prison, to be followed by ten years of supervised

release.

            Nagell now appeals, challenging the district court's

finding of perjury and the resulting sentencing enhancement.                        He

argues the district court clearly erred in holding that his

testimony    contradicted       the       testimony   of    other    witnesses,    and

constituted a willful attempt at obstruction of justice.

                                    II.   Discussion

A.   Standard of Review

            We review preserved objections to the district court's

legal interpretation of the Sentencing Guidelines de novo, and

review     for     clear       error       the    court's     factual        findings.

United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

Clear error is a deferential standard, under which affirmance is

proper    unless       "upon   whole-record-review,          an     inquiring    court

'form[s] a strong, unyielding belief that a mistake has been

made.'"     United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st

Cir. 2010) (alteration in original) (quoting Cumpiano v. Banco

Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990)).



                                           -13-
B.   Applicable Law

             The government bears the burden of proving the facts

underlying     its     sentencing     enhancement     recommendation    by    a

preponderance of the evidence.             United States v. Cannon, 589 F.3d

514, 517 (1st Cir. 2009) ("Where, as here, a defendant challenges

the factual predicate supporting the district court's application

of a sentencing enhancement, 'we ask only whether the court clearly

erred in finding that the government proved the disputed fact by

a preponderance of the evidence.'" (quoting United States v.

Luciano, 414 F.3d 174, 180 (1st Cir. 2005))).

             Section 3C1.1 of the Guidelines calls for a two-level

enhancement "[i]f . . . the 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."     U.S.S.G.

§ 3C1.1.     Application Note 4 lists perjury among the sorts of

conduct this enhancement is intended to cover.               U.S.S.G. § 3C1.1,

cmt. n.4(B).       The Supreme Court has adopted the federal definition

of criminal perjury to serve as the meaning of perjury in this

context, defining it as "[giving] false testimony [under oath]

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)).

                                       -14-
             The sentencing enhancement for perjury, however, "is not

intended   to      punish   a   defendant   for   the    exercise   of   [his]

constitutional right" to testify.            U.S.S.G. § 3C1.1, cmt. n.2;

see also Dunnigan, 507 U.S. at 95 ("[N]ot every accused who

testifies at trial and is convicted will incur an enhanced sentence

under § 3C1.1 for committing perjury.").               "The enhancement does

apply, however, if a defendant exercises his right to testify at

trial but commits perjury in the process."                 United States v.

Mercer, 834 F.3d 39, 48 (1st Cir. 2016) (citing U.S.S.G. § 3C1.1,

cmt. n.4).

             The   enhancement    should    not   be    applied   mechanically

"merely because an evidentiary conflict exists or because the jury

rejects the defendant's explanation of the facts and finds him

guilty."     United States v. Gobbi, 471 F.3d 302, 314 (1st Cir.

2006) (citing United States v. Akitoye, 923 F.2d 221, 228-29

(1st Cir. 1991)).       Instead, in order to apply an obstruction of

justice enhancement for perjury, the sentencing judge has to make

"findings that 'encompass all the elements of perjury -- falsity,

materiality, and willfulness.'"         Mercer, 834 F.3d at 49 (quoting

United States v. Matiz, 14 F.3d 79, 84 (1st Cir. 1994)).                   "A

sentencing court, however, is not required to address each element

of perjury in a separate and clear finding."             Id. (quoting Matiz,

14 F.3d at 84).        A single finding of perjury is sufficient to

uphold the lower court's sentencing enhancement for obstruction of

                                     -15-
justice.       United States v. D'Andrea, 107 F.3d 949, 959 (1st Cir.

1997).

               A   finding   of    falsity      "[does]     not    require    directly

contradictory testimony but may spring from a solid foundation of

circumstantial evidence".            Akitoye, 923 F.2d at 229.            "Where, as

here, the sentencing judge has presided over the trial, we must

allow    him       reasonable     latitude      for    credibility     assessments."

United States v. Shinderman, 515 F.3d 5, 19 (1st Cir. 2008).

               Materiality is defined in the Guidelines as "evidence,

fact, statement, or information that, if believed, would tend to

influence or affect the issue under determination."                           U.S.S.G.

§ 3C1.1 cmt. n.6; see also Shinderman, 515 F.3d at 19.                              The

materiality of a false statement is inferable from the entirety of

the record and the issues at stake at trial.                      See Matiz, 14 F.3d

at 84 (finding a statement material because "if believed, the jury

would have acquitted [the defendant]").

               Finally,    the    level    of    culpability       required    by   the

obstruction        of   justice    enhancement        is   willfulness.       U.S.S.G.

§ 3C1.1, cmt. n.2; see also United States v. Reynoso, 336 F.3d 46,

50 (1st Cir. 2003) ("[F]alse testimony caused by mistake, confusion

or poor memory is not perjurious.").                  Sufficient materiality could

suggest the willfulness of the false statement.                         See Mercer,

834 F.3d at 49.



                                          -16-
C.   Analysis

            Nagell submits that the district court erred in applying

the two-level sentencing enhancement for obstruction of justice.

Specifically,   he   argues     that    his     testimony   did   not   directly

contradict that of the other witnesses and that it was ambiguous

at best.    We disagree.   The district judge's factual findings are

well-supported by the record, and his application of the sentencing

enhancement encompasses all three elements of perjury -- falsity,

materiality, and willfulness.           See Dunnigan, 507 U.S. at 95-96;

Mercer, 834 F.3d at 49.

            Nagell   contends    that     the    district   court   failed    to

resolve testimonial ambiguities in his favor, under the principle

of lenity embodied in the Guidelines.            See United States v. Clark,

84 F.3d 506, 509-10 (1st Cir. 1996).                His reliance on Clark,

however, is misguided.        Prior to their amendment in 1997, the

Guidelines provided that "[i]n applying [Section 3C1.1] in respect

to alleged false testimony or statements by the defendant, such

testimony or statements should be evaluated in a light most

favorable to the defendant."           U.S.S.G. § 3C1.1, cmt. n.1 (Nov.

1995).     This language was removed from the Guidelines in 1997.

United States v. McKeeve, 131 F.3d 1, 15 (1st Cir. 1997) (citing

U.S.S.G. App. C, amend. 566 (Nov. 1997)); see also United States

v. Greer, 285 F.3d 158, 182-83 (2d Cir. 2002) (remanding the case

for resentencing due to the district court's application of the

                                       -17-
old standard).    As things currently stand, the district court has

the   responsibility     to   make   credibility   determinations      about

witnesses   and   make   independent    findings   of   fact   based   on   a

preponderance of the evidence, as the district judge did here.

See Dunnigan, 507 U.S. at 95; Reynoso, 336 F.3d at 50 ("[T]he

district court is the primary arbiter of witness credibility under

U.S.S.G. § 3C1.1.").8

            Nonetheless, even under the no-longer operative standard

set forth in the now repealed Guidelines committee note, the record

still provides clear support for the finding that Nagell committed

perjury.    Both on direct and cross examination, Nagell plainly and

repeatedly stated that he did not think he needed to update his

employment information because "Kim said she took care of that."

This assertion prompted the government to introduce Kim Hartley,

who flatly denied ever having given such assurance to Nagell or

any other resident in the Pharos House.       Nagell suggests that Kim

Hartley's testimony as a whole was ambiguous as to whether she may



8  Nagell also cites Gobbi, 471 F.3d at 314, in support of his
contention that "the sentencing court . . . must give the defendant
the benefit of any plausible doubt." However, this sentence in
Gobbi cites to and relies on a portion of Akitoye, 923 F.2d at
228-29, that expressly discusses the now defunct "light most
favorable" language in U.S.S.G. § 3C1.1 cmt. n.1 (1995). Because
this language was removed from the Guidelines in 1997, Gobbi's
instruction that the district court give the defendant the benefit
of any plausible doubt should not be followed here or in the
future.


                                     -18-
have given this impression to Nagell, but she consistently denied

the defense counsel's questions on the issue.                          The sentencing

court    could    have   easily       given   more   credit       to   Kim    Hartley's

testimony and concluded that Nagell's statements were not the

result of confusion, mistake or faulty memory, but of his intent

to mislead the jury.           See D'Andrea, 107 F.3d at 959.

             Moreover, although a single finding of perjury would be

sufficient       to    affirm    the    sentencing        enhancement,        D'Andrea,

107 F.3d at 959, the district court's second finding of perjury is

also reasonably supported by the record.                    Nagell claimed in his

testimony that he visited the Bath Police Department twice, on

December 29, 2015 and January 13, 2016.                   During the second visit,

he allegedly filled out a change of information form with an

unidentified police officer who did not testify at trial, and the

second   page     of   the     form    containing    the     required     information

allegedly went missing.          The Department's records corroborated the

first visit, but the second, crucial visit on January 13th cannot

be   squared      with    Detective       Booth's    testimony         regarding     the

Department's standard practice.               The sentencing judge could have

reasonably     found     the    alleged    visit     to    be    "unbelievable"      and

Nagell's statements on it perjurious.                We therefore find no error

in this finding, let alone clear error.

             Finally,     Nagell       challenges     the       materiality     of   the

statements that the judge found to be perjurious.                            As defense

                                          -19-
counsel argued during trial, however, Nagell's statements were

material to his defense strategy.          Through his testimony, Nagell

attempted to negate having a mens rea of "knowingly," which was an

element of the crime.     If the jury believed him, his statements

could have changed the outcome of the case, and so the statements

were material.    U.S.S.G. § 3C1.1 cmt. n.6; Shinderman, 515 F.3d

at 19; Matiz, 14 F.3d at 84.

                           III.     Conclusion

          Because the district court neither committed clear error

in   finding    that   Nagell     perjured     himself   at   trial,   nor,

consequently,    in    imposing     the      two-level   enhancement   for

obstruction of justice, we affirm.

          Affirmed.




                                    -20-
