                                                                            FILED
                           NOT FOR PUBLICATION                              OCT 03 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10397

              Plaintiff-Appellee,                D.C. No. 3:14-cr-00387-EMC

 v.
                                                 MEMORANDUM*
DARRELL BUCKINS,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward M. Chen, District Judge, Presiding

                          Submitted September 27, 2016**

Before:      TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

      Darrell Buckins appeals from the district court’s judgment and challenges

the 14-month sentence imposed following his jury-trial conviction for escape, in

violation of 18 U.S.C. § 751(a). We have jurisdiction under 28 U.S.C. § 1291, and

we vacate and remand for resentencing.

      *
             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).
      Buckins contends that the district court erred by imposing a sentencing

enhancement for obstruction of justice under U.S.S.G. § 3C1.1. Because the

enhancement was based on Buckins’s testimony at trial, the district court was

required to review the evidence and make independent findings that Buckins had

willfully testified falsely on a material issue. See United States v. Dunnigan, 507

U.S. 87, 94-95 (1993). The record reflects that the district court imposed the

enhancement based on its conclusion that doing otherwise would contravene the

jury’s verdict. However, inconsistency with the jury’s verdict is not sufficient for

the findings required by Dunnigan. See United States v. Monzon-Valenzuela, 186

F.3d 1181, 1184 (9th Cir. 1999); see also United States v. Alvarado-Guizar, 361

F.3d 597, 601, 603 (9th Cir. 2004) (district court not required to agree with jury’s

disbelief of defendant’s testimony when deciding whether to impose enhancement

under section 3C1.1). Contrary to the government’s contention, our holding in

United States v. Sullivan, 797 F.3d 623 (9th Cir. 2015), does not change the

analysis. Because the error may have affected the district court’s guidelines

calculations, we reject the government’s contention that it did not affect Buckins’s

substantial rights. See Molina-Martinez v. United States, 136 S. Ct. 1338, 1345

(2016). We therefore remand for the district court to make the independent

findings required by Dunnigan.


                                          2                                      15-10397
      We do not reach Buckins’s additional argument that the district court erred

in failing to impose a downward adjustment for acceptance of responsibility, under

U.S.S.G. § 3E1.1, after concluding that Buckins had accepted responsibility for the

offense. The court may address this issue on remand.

      VACATED and REMANDED for resentencing.




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