                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 22 2014

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30092

              Plaintiff - Appellee,              D.C. No. 4:12-cr-00081-SEH-1

  v.
                                                 MEMORANDUM*
JUNE LEE WOLVERINE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                    Sam E. Haddon, District Judge, Presiding

                       Argued and Submitted May 13, 2014
                              Seattle, Washington

Before: O’SCANNLAIN, BERZON, and TALLMAN, Circuit Judges.

       Defendant-Appellant June Lee Wolverine challenges her jury convictions

under 18 U.S.C. § 1153(a) (offense committed within Indian country) for assault

resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6) and assault

with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3). She also



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
challenges her concurrent sentences of 78 months imprisonment followed by 3

years of supervised release.

      First, Wolverine contends that her conviction was obtained using

impermissible character evidence because the district court improperly admitted

testimony regarding an incident nine months earlier where she stabbed the same

victim, her boyfriend, Nate Tatsey, in the chest. Wolverine alleges that evidence of

this incident was too dissimilar from the charged conduct to be admissible under

Federal Rule of Evidence 404(b) and was more prejudicial than probative. We

review the district court’s admission of character evidence for abuse of discretion.

United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir. 1994).

      “When the Government offers evidence of prior or subsequent crimes or bad

acts as part of its case-in-chief, it has the burden of first establishing relevance of

the evidence to prove a fact within one of the exceptions to the general

exclusionary rule of Rule 404(b).” United States v. Hernandez-Miranda, 601 F.2d

1104, 1108 (9th Cir. 1979); see also United States v. Romero, 282 F.3d 683, 688

(9th Cir. 2002). If offered for a proper purpose, the district court may admit the

evidence if it (1) is material; (2) is similar to the charged conduct; (3) has a

sufficient basis to support a finding that the defendant committed the other act; and

(4) is not too remote in time. United States v. Arambula-Ruiz, 987 F.2d 599, 602


                                            2
(9th Cir. 1993). The probative value must also outweigh any prejudice. Romero,

282 F.3d at 688; see also Fed. R. Evid. 403.

      Here, the prior stabbing satisfies all of these prerequisites. At trial

Wolverine represented that she had brandished the knife to protect herself, but did

not intend to stab Tatsey and had done so accidentally. So the prior stabbing, and

Wolverine’s contemporaneous statements about that stabbing, were relevant to

show intent. See United States v. Bowman, 720 F.2d 1103, 1105 (9th Cir. 1983)

(admitting a defendant’s prior conviction for assault where defendant claimed self-

defense in a different factual context). The prior stabbing was also nearly identical

to the charged conduct save for the extent of the injury to Tatsey; it involved the

same actors and the same act of violence. United States v. Sinn, 622 F.2d 415, 416

(9th Cir. 1980) (upholding admission of prior bad act evidence where the prior

offense involved nearly identical facts). Moreover, any prejudice was mitigated by

the limiting jury instruction provided by the district court. United States v.

Montgomery, 150 F.3d 983, 1001 (9th Cir. 1998) (noting that an appropriate

limiting instruction is a factor weighing in favor of admission).

      Second, Wolverine contends that the district court violated her constitutional

right to present a complete defense by restricting her daughter’s attempt to testify

that Tatsey had previously enlisted his sisters to assault Wolverine in retaliation for


                                           3
reporting past abuse to tribal law enforcement. But even if error occurred,1 it was

harmless beyond a reasonable doubt. See United States v. Stever, 603 F.3d 747,

755–57 (9th Cir. 2010). Wolverine presented ample undisputed evidence that

Tatsey was both a nasty drunk and a violent and abusive partner. And she

explained that she did not press charges against Tatsey because she believed

nothing would happen to him if she did. Thus the exclusion of testimony that

third-parties, not present during the stabbing, had previously harassed Wolverine at

Tatsey’s behest was cumulative and harmless beyond a reasonable doubt.

      Third, Wolverine contends that the district court erroneously denied her

motions for acquittal due to insufficient evidence. The Government presented

sufficient evidence to allow a rational jury to find that Wolverine did not stab

Tatsey in self-defense. See United States v. Nevils, 598 F.3d 1158, 1163–64 (9th

Cir. 2010) (en banc) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Following the stabbing, Tatsey told law enforcement and several neighbors that

Wolverine stabbed him in the chest while he was lying down and then stabbed him



      1
        We are doubtful that the district court erred. Wolverine’s case essentially
turned on which version of events the jury believed—the version Wolverine and
Tatsey presented at trial or the version they had previously described to law
enforcement officers. Because the jury did not believe Wolverine’s trial testimony
about self-defense, the additional tangential evidence proffered would not have
mattered.
                                          4
in the buttocks while he was trying to escape. Although Tatsey later testified

differently, a reasonable jury could have found his courtroom testimony not

credible. Wolverine similarly testified that she acted in self-defense—a story that

was contradicted by an audio recording in which Wolverine admitted to the FBI

that she stabbed Tatsey in the buttocks as he was running away because she

thought he was going next door where his “little woman” lived. A reasonable jury,

assisted by evidence that the version of events presented by Wolverine on the stand

was physically impossible, could—and did—reject her self-defense argument.

      Fourth, the district court properly imposed a two-level obstruction of justice

enhancement. We review the district court’s interpretation of the Sentencing

Guidelines de novo and its factual findings for clear error. United States v. Smith,

719 F.3d 1120, 1123 (9th Cir. 2013).

      The obstruction of justice enhancement applies if “the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of

justice with respect to the” prosecution of the offense of conviction. U.S.

Sentencing Guidelines Manual § 3C1.1. We have held that the plain language of

the guidelines only requires a defendant’s conduct to have “the potential for

obstructing the investigation, prosecution, or sentencing of the instant offense.”

United States v. Draper, 996 F.2d 982, 984–86 (9th Cir. 1993). But regardless of


                                          5
how clear the guidelines may be on their face, we always consider the

accompanying commentary. Id. at 984. And such commentary is generally

authoritative unless it is inconsistent with the guidelines. United States v. Lambert,

498 F.3d 963, 966, 971 (9th Cir. 2007) (disregarding the commentary to the degree

it is inconsistent with the plain language of the guidelines); cf. Stinson v. United

States, 508 U.S. 36, 38 (1993) (noting that commentary to the sentencing

guidelines is usually authoritative).

      The commentary to U.S. Sentencing Guidelines § 3C1.1 states that

“[o]bstructive conduct can vary widely in nature, degree of planning, and

seriousness. . . . [and that it] is not subject to precise definition.” U.S. Sentencing

Guidelines Manual § 3C1.1 cmt. n.3. As a result, the commentary provides “a

non-exhaustive list of examples” to “assist the court in determining whether

application of this enhancement is warranted in a particular case.” Id. § 3C1.1 cmt.

nn.3 & 4; see also Draper, 996 F.2d at 984. This list clarifies that the enhancement

applies where a defendant “commit[s], suborn[s], or attempt[s] to suborn perjury”

and where a defendant “provide[s] a materially false statement to a law

enforcement officer that significantly obstructed or impeded the official

investigation or prosecution of the instant offense.” Id. § 3C1.1 cmt. n.4(B), (G).

But the list also identifies a relevant situation where the enhancement “ordinarily”


                                            6
may not warrant application of the adjustment: where the defendant “mak[es] false

statements, not under oath, to law enforcement officers, unless Application Note

4(G) above applies.” Id. § 3C1.1 cmt. n.5(B) (emphasis added).

      Wolverine argues that because the district judge did not explicitly decide

whether she lied on the stand at trial or whether she lied to the FBI agent in her

recorded statement, he committed procedural error by applying the enhancement.

Her argument hangs on the assertion that if she lied only to the FBI agent,

application of the enhancement was error because the district judge did not find

that her lie obstructed or impeded the investigation and would have clearly erred

had he so found. Wolverine is mistaken.

      The district judge was not required to make a specific finding as to which

example in the non-exhaustive commentary applied. To hold otherwise would

make the non-exhaustive list exhaustive and would ignore the commentary’s

acknowledgment, found in its admission that obstructive conduct has no precise

definition, that the judge has some discretion in deciding what is and what is not

obstructive conduct.

      Even assuming otherwise, to the degree that Application Note 4(G) can be

read to preclude application of the obstruction enhancement where a defendant lies

to an FBI agent but does not actually obstruct or impede the investigation, that


                                          7
portion of the commentary is inconsistent with the guideline itself and need not be

followed.2 See Lambert, 498 F.3d at 971; see also Draper, 996 F.2d at 986 (“[F]or

purposes of the obstruction adjustment, it is irrelevant whether justice is actually

obstructed or impeded.”). It would be bizarre to require actual obstruction where

the plain text of the guideline requires enhancement for mere attempt. The

precedent cited by the dissent is unhelpful on this point because it does not address

whether Application Note 4(G) is inconsistent with the Guideline. See, e.g.,

United States v. Solano-Godines, 120 F.3d 957, 963–65 (9th Cir. 1997).



      2
        The dissent seems to argue that Wolverine’s conduct is more akin to that
described in application note 5(B), which generally excludes from enhancement
“false statements, not under oath, to law enforcement officers.” U.S. Sentencing
Guidelines Manual § 3C1.1 cmt. n.5(B). But that provision contains an “unless”
clause indicating that the general exclusion does not apply where the false
statements were material and impeded the investigation. See id. § 3C1.1 cmt.
nn.4(G) & 5(B). “Impeded” is defined as “to interfere with or get in the way of the
progress of; to hold up; block; detract from.” Webster’s Third New International
Dictionary 1132 (1993). Based on this definition, a lie can certainly impede an
investigation without derailing it or “halting” it as the dissent insists. Moreover,
application note 5 states that “if the defendant is convicted of a separate count for
[] conduct [generally excluded as not covered by the enhancement],” the exclusion
is void and the enhancement applies. U.S. Sentencing Guidelines Manual § 3C1.1
cmt. n.5. Here, Judge Sam Haddon noted that either act, lying under oath or lying
to an FBI agent, could be a crime and he instructed the government to investigate
and to provide a “full and written report.” This appears to have been an attempt to
cover his bases and ensure that Wolverine would face consequences for what Judge
Haddon, an experienced jurist and longtime trial lawyer, declared was the most
“blatant . . . contrast in testimony and earlier story” he had ever seen.


                                           8
Furthermore, to adopt the dissent’s argument would be to convert the Application

Note into a guideline.

       In order to support an obstruction of justice enhancement, a district court

must only find that (1) the defendant engaged in or attempted to engage in

obstructive conduct; (2) the obstructive conduct was material; and (3) “[the]

defendant had ‘willful intent’ to [engage in obstructive conduct].” See United

States v. Jimenez-Ortega, 472 F.3d 1102, 1103 (9th Cir. 2007) (per curiam).

       Viewing the trial judge’s comments on the record at trial and at sentencing,

we are satisfied the district court properly made these findings. The district judge

stated at trial:

       I either have two persons [Wolverine and Tatsey] who have lied under
       oath in this court, or, by telling a different and conflicting version to
       an FBI agent, have lied to an FBI agent in the course of his official
       capacities and duties. Either of which could be a crime. And when
       this [c]ourt is faced with the unfortunate and, indeed, distasteful
       reality of recognizing that deliberately false statements have been
       made that affect a case that is before this [c]ourt, it is impossible to
       fail to recognize that that sort of activity fundamentally compromises
       the integrity of our judicial system. And it in turn, at least indirectly,
       compromises the responsibility of the trier of fact, to be presented
       with testimony, that is with evidence, that is not tainted by intentional
       misstatements that get into the trial record under the representations
       that they are the truth.

       As I trust will be obvious to all who are here, this is a matter of grave
       concern to this [c]ourt. And I say that because, if the integrity of this
       process cannot be assured, and if the [c]ourt cannot be assured that the


                                           9
      integrity of the process will be maintained, we all collectively, who
      endeavor to administer the fundamentally fair system of judgment,
      have our responsibilities compromised. As I said, I cannot sort out or
      resolve this issue, but there are other means by which appropriate
      steps can be taken.

      Later, during sentencing, the judge referenced his earlier colloquy and, after

using the word “perjury,” he found “ample evidence and justification” to apply the

obstruction of justice enhancement to Wolverine. We conclude that taken together,

these statements on the record constitute a sufficient finding that Wolverine

intentionally engaged in obstructive conduct by making material misstatements of

fact. Although the district court could have more artfully stated the bases for its

conclusions, see Jimenez-Ortega, 472 F.3d at 1103, its findings and observations

were sufficient to support the enhancement.

      Fifth, Wolverine alleges that the district court committed “both procedural

and substantive error” during sentencing by failing to adequately explain its

reasons for giving Wolverine a within-range but high-end sentence. As to the

procedural error argument, because Wolverine did not object during sentencing, we

review for plain error. United States v. Waknine, 543 F.3d 546, 551 (9th Cir.

2008). As to the substantive error argument, “whether objected to or not at

sentencing . . . [we] review[] for abuse of discretion.” United States v. Autery, 555

F.3d 864, 871 (9th Cir. 2009). During sentencing, the district court must consider


                                          10
the 18 U.S.C. § 3553(a) factors, but it is not required to “tick off” each factor.

United States v. Carty, 520 F.3d 984, 991–92 (9th Cir. 2008). The district court is,

however, required to sufficiently explain its reasons for the sentence, but a within-

guidelines sentence “ordinarily needs little explanation.” Id. at 992. Contrary to

Wolverine’s contentions, the district judge reviewed the pertinent information,

heard statements from Wolverine and her counsel, and ultimately imposed the

upper-range sentence based on Wolverine’s history and characteristics.

Specifically, the court noted the seriousness of the crime and the need to protect

the public, stating that Wolverine is “dangerous” and capable of inflicting

“potentially fatal harm.” The district court sufficiently considered the required

factors, and imposed a sentence that was not substantively unreasonable.

      AFFIRMED.




                                          11
                                                                               FILED
Judge Berzon’s Dissent                                                         AUG 22 2014

                                                                            MOLLY C. DWYER, CLERK
United States v. Wolverine, No. 13-30092                                     U.S. COURT OF APPEALS



      I concur in the majority disposition except with regard to the two-level

obstruction of justice enhancement.

      To recap: That enhancement applies if “the defendant willfully obstructed

or impeded, or attempted to obstruct or impede, the administration of justice” with

respect to the prosecution of the offense of conviction. U.S.S.G. § 3C1.1. The

enhancement applies where a defendant commits perjury while under oath, but

does not cover “false statements, not under oath, to law enforcement officers,”

except where a defendant “provide[s] a materially false statement to a law

enforcement officer that significantly obstructed or impeded the official

investigation or prosecution of the instant offense.” Id. at § 3C1.1 cmt. nn. 4(b),

(g), 5(b). We have applied this commentary as written. See, e.g., United States v.

Solano-Godines, 120 F.3d 957, 965 (9th Cir. 1997). Every other circuit has done

the same. See, e.g., United States v. Selvie, 684 F.3d 679, 684 (7th Cir. 2012);

United States v. Williams, 79 F.3d 334, 338 (2nd Cir. 1996).

      The district court never specified which of the two versions of obstruction

occurred here, and did not make the findings required before imposition of this

enhancement. See United States v. Jimenez-Ortega, 472 F.3d 1102, 1103 (9th Cir.

                                          1
2007) (citing United States v. Dunnigan, 507 U.S. 87, 94 (1993)). Instead, on the

final day of trial, the court stated, “I either have two persons [Wolverine and

Tatsey] who have lied under oath in this court, or, by telling a different and

conflicting version to an FBI agent, have lied to an FBI agent in the course of his

official capacities and duties. Either of which could be a crime.” The court

reiterated, “the facts simply cannot be reconciled without drawing the conclusion

that one version or the other . . . is not factually true,” but specifically declined to

resolve “the truth or falsity of the two versions given by” Wolverine.

       Later, at sentencing, the district court simply stated, “I have concluded from

the entirety of the record that there is certainly ample evidence and justification for

the Court, for the purposes of sentencing, to add the 2 points for obstruction of

justice.” At neither time did the district court make a finding as to which of

Wolverine’s statements was a lie.

       Even if either possible lie “could be a crime,”1 a lie – even a material lie – is

not sufficient under the Guidelines when the lie is to a law enforcement officer.2


       1
       I do not further consider that possibility, as the point is irrelevant.
Wolverine had not been convicted of such a crime. See J. in a Criminal Case,
Docket No. 79, 1.
       2
        The situation here is in contrast to that in United States v. Swick, 334 F.3d
784 (8th Cir. 2003), upon which the government relies to argue that the sentencing
enhancement is appropriate if Wolverine must have lied on one of the two

                                            2
Lying “to an FBI agent in the course of his official capacities and duties” is only

the basis for an obstruction of justice enhancement if the false statement was both

“material” and “significantly obstructed or impeded the official investigation or

prosecution of the instant offense.” The advisory notes make clear that, absent

such findings, “making false statements, not under oath, to law enforcement

officers” does not ordinarily qualify for the enhancement. U.S.S.G. § 3C1.1 cmt.

nn. 4(G), 5(B).

      The district court never recognized the “significant obstruction or

impediment” requirement and made no finding pertinent to it. Although I would

remand for further findings, on the current record, such a finding would be

problematical.

      Wolverine’s statement to the FBI inculpated her as to the second stabbing.

The prosecution went forward rather than halting. The government acknowledged

at oral argument that the investigators believed the version of events described by

Tatsey in his FBI interview the day before, not what Wolverine told them, and it

was that theory the government put forward at trial. Cf. United States v. Shriver,


occasions. In Swick, the defendant gave contradictory material testimony on two
occasions, both while under oath, and thus at least one of them had to be perjury.
Here, Wolverine’s earlier statement was made to the FBI agent while not under
oath, and thus had to meet additional requirements, discussed below, to support
imposition of the enhancement.

                                          3
967 F.2d 572, 575 (11th Cir. 1992) (collecting cases). So there is scant evidence

on the record that the statement, if a lie, actually “obstructed or impeded the

official investigation,” much less did so “significantly.” Nor is there any finding

that Wolverine’s inculpatory statement to the FBI was an attempt to obstruct or

impede justice by significantly obstructing or impeding the investigation; the

district court assumed that the material lie was sufficient, as it is for perjury.

      We held in Jimenez-Ortega that “the materiality of a false statement is one

of the factual predicates of an obstruction enhancement,” and not “a purely legal

question . . . that the court of appeals c[an] decide in the first instance.” 472 F.3d

at 1103. Jimenez-Ortega directed that when a district court fails to make the

necessary factual findings to support imposition of this enhancement, and the

government has not argued that the error was harmless, “we must remand” to the

district court rather than substitute our judgment in its place. Id. at 1103-04 & n.2.

The same reasoning applies to the failure to determine whether the “significantly

obstructed or impeded” requirement is met.3 We thus must remand for a proper

determination, applying the correct Guidelines standards, as to the obstruction of

      3
         The majority suggests that Application note 4(G) is “inconsistent with the
guideline itself.” Maj. at 8. No party has so argued, and every court, including this
court, that has applied the commentary has applied it as written. See also Stinson
v. United States, 508 U.S. 36, 44 (1993); Ehlert v. United States, 402 U.S. 99, 105
(1971).

                                            4
justice enhancement.

      I respectfully dissent.




                                5
