                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 15 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   18-30135

              Plaintiff-Appellee,                D.C. No.
                                                 3:16-cr-00065-TMB-1
 v.

GREGORY TODD NUMANN,                             MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Alaska
                   Timothy M. Burgess, District Judge, Presiding

                            Submitted August 7, 2019**
                               Anchorage, Alaska

Before: TALLMAN, IKUTA, and N.R. SMITH, Circuit Judges.

      Gregory Todd Numann appeals his 240-month term of imprisonment. We

have jurisdiction under 18 U.S.C. § 3742, and we affirm.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1.    Numann argues that the district court erroneously applied a two-level

enhancement for obstruction of justice pursuant to United States Sentencing

Guidelines Manual (“U.S.S.G.”) § 3C1.1 when it sentenced him. Assuming

without deciding that this enhancement was improperly applied,1 the error was

harmless. When it sentenced Numann, the district court expressly

“acknowledge[d] that the correct Guidelines range [was] in dispute and

perform[ed] [its] sentencing analysis twice, beginning with both the correct and

incorrect range,” United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th

Cir. 2011) (per curiam), and specifically stated that it had determined that a 240-

month sentence was appropriate under either Guidelines range.2

2.    Numann argues that the district court drew an adverse inference and

increased his sentence because Numann failed to provide the password to one of



      1
        At least one Ninth Circuit panel has found that obstructive conduct must be
“part of the instant offense of conviction” to qualify as obstruction under U.S.S.G.
§ 3C1.1. United States v. Williams, 693 F.3d 1067, 1076 (9th Cir. 2012).
However, other panels have held that there is no “requirement that the obstructive
conduct relate substantively to the offense of which the defendant is convicted.”
United States v. Hernandez-Ramirez, 254 F.3d 841, 844 (9th Cir. 2001); United
States v. Verdin, 243 F.3d 1174, 1180 (9th Cir. 2001). We decline to resolve this
inconsistency here.
      2
         The sentence that Numann received was below the Guidelines range for his
offense with (324 to 360-months) or without (262-327 months) the obstruction of
justice enhancement applied.
                                          2
the computers (the “Apple laptop”) that law enforcement seized when they

searched Numann’s home. Though the district court stated more than once during

the sentencing hearing that Numann would not be punished for his failure to

provide that password, the district court also stated that Numann’s decision to

withhold the password prevented it from determining the level of risk that Numann

would pose to the public in the future. As the district court’s remarks seem to

suggest that this “missing piece” prevented it from considering all of the factors

referenced by 18 U.S.C. § 3553(a), and thereby prevented it from considering a

lesser punishment or shorter sentence, we find that an adverse inference was

drawn.

      However, even assuming that the adverse inference was improper,3 any error

was harmless. The adverse inference was discussed by the district court in

connection with the court’s assessment of Numann’s risk of re-offending, and the

degree to which the court would need to protect the public against such a

possibility in the future. See 18 U.S.C. § 3553(a). Based on the evidence before it,

the district court found that Numann posed a significant risk to the public, and that


      3
       The government argues (for the first time on appeal) that no impermissible
adverse inference was drawn because Numann’s failure to provide the password to
the Apple laptop was not protected by the Fifth Amendment. We decline to
consider this argument, because it was not raised before the district court. Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
                                          3
a lengthy term of imprisonment was required as a result. Though Numann’s

password-related conduct is mentioned, the district court noted that its conclusion

was supported by other facts in the record before it, namely: (1) the serious nature

of the present offense; (2) Numann’s admitted past sexual abuse of his daughter;

(3) Numann’s manipulation of his daughter after the sexual abuse came to light

during the investigation into the present offense; and (4) Numann’s inability (or

unwillingness) to grasp the severity of his criminal conduct. Numann did not

dispute any of those facts below, nor has he sought to challenge them on appeal.

Based on these undisputed facts, and because Numann has not identified any

evidence in the record that persuades us that a lesser sentence would have been

imposed but for this inference, any error was harmless. United States v. Ali, 620

F.3d 1062, 1074 (9th Cir. 2010).

      AFFIRMED.




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