                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 20 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50402

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00262-GHK-1

  v.
                                                 MEMORANDUM*
RICHARD ALBERT WUERFEL,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                  George H. King, Chief District Judge, Presiding

                      Argued and Submitted February 5, 2014
                               Pasadena, California

Before: PREGERSON and WARDLAW, Circuit Judges, and BURRELL, Senior
District Judge.**

       Appellant Richard Wuerfel appeals the district court’s denial of his motion

to suppress evidence seized during a warranted search of his home and his sentence

of 72 months imprisonment followed by a lifetime term of supervised release. We

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Garland E. Burrell, Jr., Senior District Judge for the
U.S. District Court for the Eastern District of California, sitting by designation.
have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We affirm in

part, reverse in part, vacate Wuerfel’s sentence, and remand.

                             Suppression of Evidence

      We reject Wuerfel’s argument that the July 30, 2009 search warrant was not

supported by probable cause since the affidavit submitted in support of the search

warrant “created a ‘fair probability’ that [child pornography] would be found in

[Wuerfel’s home].” United States v. Krupa, 658 F.3d 1174, 1178 (9th Cir. 2011)

(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (stating the probable cause

standard for issuance of a search warrant). The affidavit evinced that in May of

2008, an individual using Wuerfel’s name paid a monthly subscription to access

child pornography on multiple occasions from an internet connection associated

with Wuerfel’s then residence. Further, after Wuerfel moved, he sought access to

additional child pornography, as shown by his email to a second child pornography

website in October 2008 and his 51 attempts to download child pornography

videos from the Federal Bureau of Investigation Web Lure website in the spring of

2009. Therefore, the district court did not err in denying Wuerfel’s suppression

motion.

      Wuerfel also argues the seized evidence should be suppressed because the

government violated certain terms of the July 30, 2009 search warrant. However,


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Wuerfel did not raise this ground in his suppression motion, and he has given no

reason for his failure to do so. Accordingly, the issue is waived. United States v.

Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002).

                        Obstruction of Justice Enhancement

       Wuerfel contends the district court erred in applying a two-level sentencing

enhancement for obstruction of justice under U.S.S.G. § 3C1.1 because he lacked

the specific intent to obstruct justice.

       “Sentencing Guidelines § 3C1.1 contains a clear mens rea requirement that

limits its scope to those who ‘willfully’ obstruct or attempt to obstruct the

administration of justice.” United States v. Lofton, 905 F.2d 1315, 1316 (9th Cir.

1990). “As applied by section 3C1.1, the term ‘willfully’ requires that the

defendant ‘consciously act with the purpose of obstructing justice.’” Id. at 1316-

17 (quoting United States v. Stroud, 893 F.2d 504, 507 (2d Cir. 1990)).

       Here, we cannot “presume the district court enhanced [Wuerfel’s] sentence

for obstruction of justice based on willful conduct” given the sentencing record.

United States v. Garner, 988 F.2d 82, 84 (9th Cir. 1993). In discussing Wuerfel’s

failure to self-surrender following the death of his wife, the district court stated that

it did not disagree that “it is tough to imagine what . . . mental state” a person in

Wuerfel’s position might have had.


                                            3
      Since we cannot determine from the record whether the district court

properly “consider[ed] the mens rea requirement for an upward adjustment for

willful obstruction of justice,” the district court’s application of this enhancement

is reversed, Wuerfel’s sentence is vacated, and the case is remanded to the district

court to determine whether to apply the obstruction of justice enhancement

consistent with this disposition. Gardner, 988 F.2d at 85.

                                 Wuerfel’s Sentence

      Wuerfel challenges both the length of his sentence and his lifetime term of

supervised release.

      The district court did not abuse its discretion in imposing a lifetime term of

supervised release. United States v. Collins, 684 F.3d 873, 887 (9th Cir. 2012)

(stating standard of review in deciding challenges to the length of a supervised

release term). “[T]here is every indication that the district court considered the

specific facts presented by [Wuerfel’s] case and that its [imposition of a lifetime

term of supervised release] was consistent with its assessment of these facts.”

United States v. Apodaca, 641 F.3d 1077, 1082 (9th Cir. 2011).

      We need not decide whether Wuerfel’s 72-month sentence is substantively

unreasonable in light of our reversal on the obstruction of justice enhancement.




                                           4
                                       Conclusion

      For the stated reasons, we REVERSE the district court’s application of the

obstruction of justice enhancement, VACATE Wuerfel’s sentence, and REMAND

to the district court for resentencing consistent with this disposition. We AFFIRM

the district court’s denial of Wuerfel’s suppression motion and imposition of a

lifetime term of supervised release.

      AFFIRMED IN PART, REVERSED IN PART, VACATED, AND

REMANDED.

      Each party shall bear its own costs on appeal.




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