                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 16 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-30276

               Plaintiff - Appellee,             D.C. No. 4:12-cr-00013-SEH

  v.
                                                 MEMORANDUM *
ASHLEIGH MARIE GREYBULL,

               Defendant - Appellant.



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

                            Submitted October 15, 2013 **

Before:        FISHER, GOULD, and BYBEE, Circuit Judges.

       Ashleigh Marie Greybull appeals from the district court’s judgment and

challenges the 18-month sentence imposed following her guilty-plea conviction for

theft from an Indian tribal organization, in violation of 18 U.S.C. §§ 2, 1163. We

have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Greybull contends that the district court erred by imposing a two-level

increase for obstruction of justice under U.S.S.G. § 3C1.1. We review the district

court’s characterization of a defendant’s conduct as obstruction de novo. See

United States v. Manning, 704 F.3d 584, 585 (9th Cir. 2012) (per curiam). The

district court imposed the enhancement on the ground that Greybull provided “a

materially false statement to a law enforcement officer that significantly obstructed

or impeded the official investigation or prosecution of [her] offense.” U.S.S.G.

§ 3C1.1 cmt. n.4(G). We conclude that the record is insufficient to support the

enhancement on this basis. First, a false denial of guilt not made under oath cannot

provide a basis for the enhancement. See U.S.S.G. § 3C1.1 cmt. n.2; United States

v. Beardslee, 197 F.3d 378, 389-90 (9th Cir. 1999). The record does not reflect

which of Greybull’s statements, if any, went beyond a denial of guilt. Second, the

record is inconclusive as to whether the investigation of Greybull’s offense would

have been any different absent her false statements. Accordingly, we cannot

determine whether her statements “obstructed or impeded” the investigation. See

United States v. McNally, 159 F.3d 1215, 1217 (9th Cir. 1998) (to provide a basis

for an obstruction of justice enhancement, a false statement to an investigating

officer “must constitute an actual impediment”).




                                          2                                     12-30276
      For the foregoing reasons, we vacate the sentence and remand for

resentencing on an open record.

      The mandate shall issue forthwith.

      VACATED and REMANDED for resentencing.




                                           3                             12-30276
