          United States Court of Appeals
                     For the First Circuit


No. 17-1031

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                       DANIEL COLBY, JR.,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                             Before

                   Kayatta, Stahl, and Barron,
                         Circuit Judges.


     John L. Calcagni, III, with whom Larry J. Ritchie was on
brief, for appellant.
     Benjamin M. Block, Assistant U.S. Attorney, with whom Halsey
B. Frank, U.S. Attorney, and Julia M. Lipez, Assistant U.S.
Attorney, were on brief, for appellee.


                        February 14, 2018
           STAHL, Circuit Judge.       Following a two-day jury trial,

Defendant Daniel Colby, Jr. was convicted of a single count of

possession of a firearm by a prohibited person in violation of 18

U.S.C. § 922(g)(1).   In calculating Colby's sentence, the district

court applied a two-level enhancement for possession of a stolen

gun, a four-level enhancement for using a gun in connection with

another   felony,   and    a   two-level   enhancement   for   obstructing

justice by committing perjury at trial, which resulted in a

guideline range of 84 to 105 months.       The district court sentenced

Colby to 95 months in prison.         On appeal, Colby challenges the

district court's application of these three enhancements.            After

careful consideration, we affirm.

                                     I.

           In March 2015, Colby was living in a camper in Wiscasset,

Maine on property owned by his father.          Forrest J. Smith was a

friend of Colby's father who lived nearby on Mountain Road in

Woolwich, Maine.    Smith had occasionally worked for Colby's father

prior to Colby taking up residence on his father's land.            A few

days before March 17, 2015, Smith was walking home from Colby's

father's house when he encountered Colby on the road.          Colby threw

an M-80 firecracker at Smith and said "if you turn around right

now I'll shoot ya."       Smith continued walking back to his trailer.

           On March 17, 2015, at approximately 3:00 PM, Smith heard

someone knocking on the door to his trailer claiming to be from


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the power company.     According to Smith's later testimony, Colby

burst into the trailer, breaking the lock on the door.            In

response, Smith told Colby that he had called the cops about the

firecracker incident.    Colby stuck a gun in Smith's face and said

"I ought to shoot you right now for calling the f-ing cops on me."

Smith told Colby that he should leave, and Colby left the trailer

still carrying the gun.       Shortly thereafter, Smith called the

police and reported that Colby had threatened him with a gun.

Smith later described the gun as having "a short barrel" with "a

brown, wooden handle."

             Joey Rogers, who also lived on Mountain Road, testified

at trial to the following.    On March 17, 2015, he saw Colby walking

up the road towards Smith's trailer at around 3:00 PM and, thirty

to forty minutes later, he heard someone in his driveway trying to

open the door to his truck.        Looking over, Rogers saw Colby

standing by his truck.     According to Rogers, when he asked Colby

what he was doing, Colby mumbled and started "pulling something

from his sweatshirt pocket."      Rogers could not see exactly what

the object in Colby's pocket was, but he did see that it had a

handle.   As Colby walked towards Rogers, Rogers' dog ran at Colby.

Colby took off running across the road, through a ditch, and into

the woods.

              Three days earlier, on March 14, 2015, Colby had

visited Gregory Doray at his mother Stacey Doray's house.    Jyllian


                                   - 3 -
York, Gregory's sister who was nine months pregnant and on bedrest

at the time, also lived with Stacey.       At some point that day,

Jyllian took Stacey's gun from Stacey's bedroom closet and hid it

in her own bedroom closet. According to Jyllian's later testimony,

she took the gun to give it to Gregory because she thought Gregory

was in trouble with "bad people" and might need it.          Colby,

Gregory, and Gregory's girlfriend all ended up sleeping in the

living room at Stacey's house that night.

            The next morning, on March 15, 2015, Jyllian's boyfriend

Cody Wyman discovered that the gun was missing from Jyllian's

closet.     Jyllian was scared that her mother would find out that

she had taken the gun and did not, at that point, tell her mother

that the gun was missing.    After searching her room for about two

hours, Jyllian asked everyone who had spent the night, including

Colby, if they had the gun or knew where it was.       No one would

admit they had it.

            On the evening of March 17, 2015, Jyllian texted and

called Colby to ask him again if he had the gun or knew where it

was.     According to Jyllian, Colby told her that he had taken the

gun and left it in a snowbank in the woods near Mountain Road.

Jyllian and Wyman went out that night to look for the gun in the

woods.    In a series of text messages and phone calls, Colby tried

to explain where he had put the gun, telling them that it was

"stashed in snow . . . [a]t the end of the tracks."    When Jyllian


                                  - 4 -
and Wyman still could not find the gun, Colby texted that he would

"run in the woods with Cody and get it" in the morning.

          The next day, Jyllian and her younger sister returned to

the woods to look for the gun.    While they were searching, Officer

James Read of the Wiscasset Police Department, who was out on

patrol, saw their car parked on the side of the road and stopped.

When Officer Read asked them what they were doing, Jyllian told

him they were looking for a gun.     At that point, the police took

over the search for the gun.     Some time later, after the snow had

melted, the police recovered the gun at that location in the woods.

          At trial, Colby testified in his own defense.           He

admitted that he had thrown the firecracker at Smith, but that he

"thought it was kind of a joke" and he "wasn't intending to hurt

him or nothing."   He denied being at Smith's trailer on March 17,

2015, and claimed that he did not recall encountering Rogers that

day.1

           Colby also denied ever touching Stacey's gun.       Colby

claimed that Gregory had taken the gun and brought it to his

girlfriend's home in Gardiner.    According to Colby, he and Gregory

then arranged to have a mutual friend place the gun in the woods

so that they could return it to Stacey.     Colby explained that he




1 Colby admitted that he might have been walking back and forth
near Rogers' house to get cell phone reception.


                                   - 5 -
texted Jyllian directions to where he thought the mutual friend

had left the gun.

             On June 2, 2016, the jury found Colby guilty.                On

December 27, 2016, the district court sentenced him to 95 months

in prison.    The court imposed a two-level enhancement pursuant to

U.S.S.G. § 2K2.1(b)(4)(A) for possessing a stolen firearm, a four-

level   enhancement   pursuant   to     U.S.S.G.   § 2K2.1(b)(6)(B)      for

possessing a firearm in connection with another felony offense,

and a two-level enhancement pursuant to U.S.S.G. § 3C1.1 for

willfully    obstructing,   impeding,    or   attempting   to   impede   the

administration of justice.     In applying the final enhancement, the

court found that Colby "perjured himself during trial by denying

possession of the gun and denying his activities vis-a-vis Forrest

Smith."     The court found "all of those lies to be material" and

found "that those lies, perjury, constitute obstruction."

                                  II.

             We review the district court's legal interpretations of

the sentencing guidelines de novo, and review its subsidiary

factual findings for clear error.        United States v. Corbett, 870

F.3d 21, 31 (1st Cir. 2017).       When a defendant "challenges the

factual predicate supporting the district court's application of

a sentencing enhancement, 'we ask only whether the court clearly

erred in finding that the government proved the disputed fact by

a preponderance of the evidence.'"        United States v. Cannon, 589


                                      - 6 -
F.3d 514, 517 (1st Cir. 2009) (quoting United States v. Luciano,

414 F.3d 174, 180 (1st Cir. 2005)).                We address each of Colby's

challenges to the sentencing enhancements in turn.

A.     Possession of a Stolen Firearm

            Colby claims the district court's finding that Stacey's

gun was stolen was clearly erroneous.              Before we can evaluate the

district court's factual findings, we must determine the meaning

of "stolen" as used in this provision of the guidelines.                 U.S.S.G.

§ 2K2.1(b)(4)(A)       calls    for   a   two-level    enhancement      "[i]f   any

firearm . . . was stolen."            The comment to this provision states

that   "[s]ubsection       (b)(4)     applies   regardless      of   whether    the

defendant knew or had reason to believe that the firearm was

stolen."

            Because the events of this case occurred in Maine, Colby

argues that we should define "stolen" in accordance with Maine's

theft statute.         See Me. Rev. Stat. Ann. tit. 17-A § 353(1)(A).

This we will not do.          Guideline terms are "federal in character"

and must have "a single, invariant meaning, rather than a meaning

that changes from state to state."              United States v. DeLuca, 17

F.3d   6,   8   (1st   Cir.    1994).      Guideline    terms    that   are     "not

specifically     defined      therein     generally   should    be   given    their

common usage."     Id. at 9.        To ascertain a term's common usage, we

may look to the laws of the various states, see, e.g., United

States v. Cruz-Santiago, 12 F.3d 1, 2-3 (1st Cir. 1993), as well


                                           - 7 -
as relevant federal law and other sources, DeLuca, 17 F.3d at 9.

However, we are not bound to any particular state's definition of

a    legal   term    when   construing   terms    used   in   the   sentencing

guidelines.

             We turn then to our task of divining the common usage of

"stolen."     In United States v. Turley, the Supreme Court addressed

the term "stolen" as it was used in the National Motor Vehicle

Theft Act.     352 U.S. 407, 408 (1957).         Finding that the term "has

no    accepted      common-law   meaning,"   the     Court    looked    to   the

legislative purpose behind the act.          Id. at 411, 413.          The Court

concluded that because Congress sought to prevent "innumerable

forms of theft," the term should be read broadly to include "all

felonious takings of motor vehicles with intent to deprive the

owner of the rights and benefits of ownership, regardless of

whether or not the theft constitutes common-law larceny."                 Id. at

416-17.

             We agree with the Eighth Circuit that "the context of

§ 2K2.1(b)(4) . . . likewise requires a broad interpretation of

'stolen.'"     United States v. Bates, 584 F.3d 1105, 1109 (8th Cir.

2009); see also United States v. Jackson, 401 F.3d 747, 749-50

(6th Cir. 2005). As mentioned above, § 2K2.1(b)(4) has no scienter

requirement, and "[t]he history of the Guideline itself confirms

that the omission was intentional."              United States v. González,

857 F.3d 46, 56 (1st Cir. 2017).             In González, we upheld the


                                         - 8 -
provision   against   a   due   process    challenge,   recognizing   that

"stolen firearms present special dangers, especially in the hands

of convicted felons . . . who cannot legally own any gun."        Id. at

57.   Because a broader reading "is consistent with the guideline's

purpose to punish and deter the trade in stolen and altered

firearms," we define "stolen" to encompass "all felonious or

wrongful takings with the intent to deprive the owner of the rights

and benefits of ownership, regardless of whether or not the theft

constitutes common-law larceny."      Bates, 584 F.3d at 1109; accord.

Turley, 352 U.S. at 417.

            Turning to the facts of this case, the district court

explicitly found that the gun was stolen and that the defendant

knew it was stolen, even though such knowledge is irrelevant to

whether the enhancement applies.          The sentencing record supports

these findings.    Jyllian took the gun from her mother's bedroom

without permission with the intent to give the gun to her brother

Gregory.     Therefore, the gun could already be classified as

"stolen" when she hid it in her closet.          Of course, someone then

took the gun from Jyllian's closet.            It was the government's

position that Gregory took the gun from Jyllian's closet.        Gregory

slept at the house the night the gun disappeared from Jyllian's

closet and Jyllian testified that Gregory was involved with "bad

people" and may have needed the gun.            Moreover, Colby himself

testified that Gregory had stolen the gun.


                                     - 9 -
          Finally, the district court explicitly found that "the

gun was hidden in the snow by the defendant and he did that to

hide the gun."      This finding, which the record amply supports,

provides another basis for concluding that the gun was stolen.

Colby himself at some point took the gun and hid it in the woods,

thereby evincing an intent to deprive Stacey of the benefits of

ownership.2

          As   to   whether   Colby    possessed   Stacey's   gun,   Smith

testified that Colby threatened him with a gun that was similar in

appearance, Rogers saw Colby holding something with a handle in

his sweatshirt pocket, and Colby admitted that he had put the gun

in the snow bank in the text messages and phone calls he had with

Jyllian and Wyman.

          Based on the evidence before it, the district court did

not clearly err in finding that Colby possessed a stolen gun and

therefore did not err in imposing the enhancement.


2 We note that, even if we were to apply the law of Maine to define
"stolen," which we will not do, these acts would likely qualify as
theft under Maine law.       See Me. Rev. Stat. Ann. tit. 17-A
§ 352(3)(C) ("intent to deprive" necessary for theft occurs where
one "use[s] or dispose[s] of the property under circumstances that
make it unlikely that the owner will recover it or that manifest
an indifference as to whether the owner will recover it"); see
also State v. Burns, 26 A.3d 817, 821 (Me. 2011) ("Although a
person charged with theft may have intended to repay or otherwise
restore the stolen property, that person may 'nonetheless
consciously use . . . the money in a way which the jury could find
made it unlikely that the [rightful owner] would recover it, in
violation of section 352(3)(C).'" (quoting State v. Moon, 755 A.2d
527, 531 (Me. 2000))).


                                      - 10 -
B.    Possession of a Firearm in Connection With Another Felony
      Offense

           Colby claims the district court should not have imposed

the   four-level   enhancement   for    possession   of   a   firearm   in

connection with another felony offense because its finding that

Colby had threatened Smith with Stacey's gun was clearly erroneous.

U.S.S.G. § 2K2.1(b)(6)(B) provides for a four-level enhancement if

a defendant "used or possessed any firearm or ammunition in

connection with another felony offense."        The presentence report

identified the other felony offense as criminal threatening with

a dangerous weapon.

           We see no clear error.         First, there was more than

sufficient evidence for the district court to find that Colby had

come to possess Stacey's gun before March 17, 2015.           Second, the

district court found Smith's account of the incident at his trailer

largely credible.     Although the district court acknowledged that

there were some gaps in Smith's memory, it concluded that "someone

who is -- has a gun pointed at his face may well disregard a memory

of which way the door went in or out or even whether the gun had

a wide barrel or a somewhat narrower barrel." Having found Smith's

testimony credible, the district court concluded that Colby used

Stacey's gun to threaten Smith.        We see no reason to disturb the

district court's credibility determination, and therefore find the

district court did not err in imposing the enhancement.



                                   - 11 -
C.   Obstruction of Justice

          Finally, we consider Colby's challenge to the district

court's application of the enhancement for obstruction of justice.

U.S.S.G. § 3C1.1 calls for a two-level enhancement "[i]f (1) the

defendant willfully obstructed or impeded . . . the administration

of justice with respect to the investigation, prosecution, or

sentencing of the instance offense of conviction, and (2) the

obstructive conduct related to . . . the defendant's offense of

conviction and any relevant conduct."     "[C]ommitting perjury is an

example of the type of conduct to which this enhancement applies."

United States v. Matiz, 14 F.3d 79, 84 (1st Cir. 1994).     In order

to impose the enhancement, the district court must make factual

findings that "encompass all the elements of perjury -- falsity,

materiality, and willfulness."   Id.

          Colby focuses on the willfulness element, arguing that

the district court failed to make a particular finding as to

whether Colby made false statements "with the willful intent to

provide false testimony, rather than as a result of confusion,

mistake, or faulty memory."   United States v. Dunnigan, 507 U.S.

87, 94 (1993).   We generally do not require the district court to

"address each element of perjury in a separate and clear finding."

Matiz, 14 F.3d at 84.    Rather, we examine whether "a sentencing

court's findings encompass all of the factual predicates for a

finding of perjury."    Id.   Here, the district court found that


                                 - 12 -
Colby "perjured himself during trial by denying possession of the

gun and denying his activities vis-a-vis Forrest Smith" and further

found "all of those lies to be material" and "that those lies,

perjury, constitute obstruction."

          In these circumstances, "[t]he nature of the material

falsehood[s] . . . is not one in which the willfulness of the

falsehood[s] could reasonably be questioned."      United States v.

Mercer, 834 F.3d 39, 49 (1st Cir. 2016).    Colby flatly denied that

he went to Smith's trailer on March 17, 2015 and threatened him.

He testified that he never touched Stacey's gun and that he only

saw the gun when Gregory had it.      The district court permissibly

concluded that Colby's completely contradictory accounts of these

key facts in his case were not the result of "confusion, mistake,

or faulty memory."   Dunnigan, 507 U.S. at 94.   We find no error in

the district court's imposition of the obstruction of justice

enhancement.

                               III.

          For the foregoing reasons, we affirm.




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