                            NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                          JAN 22 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.    16-50355

                Plaintiff-Appellee,              D.C. No.
                                                 3:12-cr-02497-AJB
 v.

JAMES FRANCIS MURPHY,                            MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                       Argued and Submitted January 8, 2018
                               Pasadena, California

Before: M. SMITH and FRIEDLAND, Circuit Judges, and RAKOFF,** Senior
District Judge.

      James Murphy appeals the district court’s calculation of his base offense

level and imposition of restitution as a condition of supervised release. Murphy

was convicted of four counts of filing fictitious financial obligations in violation of



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
18 U.S.C. § 514, three counts of making false claims in violation of 18 U.S.C. §

287, and one count of corrupt interference with the administration of the internal

revenue laws in violation of 26 U.S.C. § 7212(a). The district court sentenced

Murphy to 36 months’ imprisonment on the corrupt interference count under §

7212(a), and 48 months on the other seven counts, to run concurrently.

      Murphy initially appealed his conviction, but not his sentence, and we

vacated the fictitious financial instrument convictions and affirmed the rest. See

United States v. Murphy, 824 F.3d 1197, 1200 (9th Cir. 2016). On remand, the

United States elected to dismiss the vacated counts and schedule the matter for

resentencing. The Court found a base offense level of 20 and applied both a

“sophisticated means” enhancement and an “obstruction of justice” enhancement.

This resulted in an adjusted offense level of 24 with a guideline range of 51 to 63

months’ incarceration. The district court sentenced Murphy to 42 months

incarceration. The Court also ordered restitution of $447,528 as a condition of

supervised release. Murphy now appeals the resentence. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

      Murphy first argues that the district court erred in finding that Murphy

intended to cause the loss of $1.49 million, and so erred in setting the base offense

level at 20. The district court included a total of $1.2 million that Murphy listed as

return amounts on his 2005-07 tax returns, to which Murphy was not actually


                                           2
entitled. Murphy contends that text that he printed on the face of each page of these

tax returns, as well as in his letter accompanying the returns, shows that he in fact

requested that this amount be set off against his preexisting debt, not returned to

him as a refund. This Court reviews a sentencing court’s application of the

Guidelines to the facts for abuse of discretion. United States v. Gasca-Ruiz, 852

F.3d 1167, 1170–74 (9th Cir. 2017) (en banc). Murphy clearly listed $1.2 million

on the lines of his returns where he was to indicate the refunds sought, and he

supplied his checking account and routing numbers for the refunds. Neither the

largely unintelligible text he printed on each page nor the equally opaque letter

accompanying his returns clearly indicate that he sought to have that money set off

against his debt rather than refunded to the accounts whose information he

provided; indeed, these passages are largely gibberish. The Court’s finding of a

base offense level of 20 was therefore not an abuse of discretion.

      Murphy next takes issue with the district court’s application of a two-level

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

Sentencing Guidelines Manual § 3C1.1 (U.S. Sentencing Comm’n 2015).

Probation recommended that the district court impose the obstruction enhancement

because “the defendant sent false written accusations of criminal conduct to an IRS

employee, for the purposes of intimidation, in order to prevent him from

performing official duties.”


                                          3
      Murphy contends that the district court erred because it did not explain its

decision to apply this enhancement. We disagree. See United States v. Carty, 520

F.3d 984, 992 (9th Cir. 2008) (en banc) (“It is most helpful for [an explanation] to

come from the bench, but adequate explanation in some cases may also be inferred

from the PSR or the record as a whole.”). Despite Murphy’s contention to the

contrary, such an explanation exists here. “Obstruction during an IRS audit

justifies enhancing a defendant’s sentence for obstruction ‘during the course of the

investigation’” under Section 3C1.1 because “[a]n IRS audit is an official

investigation that may be the first step leading to a criminal conviction for tax

violations.” United States v. Yip, 592 F.3d 1035, 1042 (9th Cir. 2010) (quoting

U.S.S.G. § 3C1.1). Moreover, an attempt to obstruct justice is sufficient to justify

an enhancement under Section 3C1.1. See United States v. Sayetsitty, 107 F.3d

1405, 1410 (9th Cir. 1997). Here, Murphy’s correspondence with the IRS explains

the district court’s application of this enhancement.

      Murphy also argues that the district court impermissibly relied on the same

conduct and elements that led to the sophisticated means enhancement when

imposing the obstruction enhancement. See United States v. Nagra, 147 F.3d 875,

883 (9th Cir. 1998) (describing impermissible “double counting”). In actuality,

while overlapping conduct may have been involved, both the court and counsel

implicitly recognized that very different elements were involved, for at the original


                                          4
sentencing, the district court expressly invited argument from the parties on both

enhancements, but defense counsel just as expressly chose to argue only against

the imposition of the sophisticated means enhancement. The court denied

defendant’s objections regarding that enhancement, explained its ruling on the only

enhancement that defendant had chosen to argue, and then ruled that “both

sophisticated means/obstruction [were] warranted and should apply.”1 Thus, the

court did not, as defendant argues, impose the obstruction enhancement for

conduct already accounted for by the sophisticated means enhancement, but rather

accepted defense counsel’s choice to argue only against the sophisticated means

enhancement.

      Murphy next challenges the district court’s restitution order. First, he argues

that the district court erred by imposing restitution for his violation of Section

7212(a) despite the fact that the jury returned a general verdict and some of the

conduct charged under that count did not cause any loss.

      Murphy, however, did not make this objection at either of the sentencing

hearings before the district court, so we review this claim for plain error. See

United States v. Yijun Zhou, 838 F.3d 1007, 1010 (9th Cir. 2016). “Plain error is


      1
        While later, at resentencing, defense counsel said on the record that
defendant wanted to “preserve the previous objections we made to the plus two for
sophisticated means, as well as obstruction,” the addition of these last few words
was hardly enough to resurrect any arguments defendant had abandoned at the
original sentencing.

                                           5
(1) error, (2) that is plain, and (3) that affects substantial rights. If all three

conditions are met, we may then exercise our discretion to notice a forfeited error,

but only if (4) the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Myers, 804 F.3d 1246, 1257 (9th Cir.

2015) (quoting United States v. Kyle, 734 F.3d 956, 963 (9th Cir. 2013) (alterations

and internal quotation marks omitted)). Murphy has cited no case showing that

reliance on the general verdict was clearly an error. See United States v. De La

Fuente, 353 F.3d 766, 769 (9th Cir. 2003) (“An error cannot be plain where there

is no controlling authority on point and where the most closely analogous

precedent leads to conflicting results.”). And he has also failed to show that the

loss associated with the respective count could not have equaled the amount of

restitution ordered. Therefore, he has not shown plain error.

       Murphy also argues that, in calculating the restitution amount, the district

court erred in relying solely on the declaration of an IRS agent who claimed to

have calculated the taxes owed from 2003 to 2007, including interest, where that

declaration did not outline precisely how those amounts were calculated. Relying

on this uncontested affidavit was not error, much less plain error. More detailed

evidence and explicit findings are only required “when a dispute arises as to the

proper amount of restitution,” United States v. Waknine, 543 F.3d 546, 556 (9th

Cir. 2008), but Murphy did not contest the agent’s calculations until this appeal.


                                              6
      Finally, Murphy argues that the district court erred by including prejudgment

interest at the statutory rate under Section 6621 of the Internal Revenue Code, 26

U.S.C. § 6621, which sets the interest rate the IRS should impose for delinquent

taxes. “A restitution order is reviewed for an abuse of discretion, provided that it is

within the bounds of the statutory framework.” United States v. Marks, 530 F.3d

799, 811 (9th Cir. 2008) (quoting United States v. Gordon, 393 F.3d 1044, 1051

(9th Cir. 2004) (internal quotation marks omitted)). Murphy does not dispute that

the inclusion of interest was legal, but only that the steep interest rate applied

“essentially amounted to an unauthorized windfall to the IRS.” This argument is

unavailing. The interest rate under Section 6621 is that which Congress has

determined is appropriate to reimburse the government for the losses it suffers by

not having the benefit of unpaid taxes over time. Applying that law in the context

of restitution intended to compensate the IRS for that same loss was not an error at

all, much less an abuse of discretion.

      AFFIRMED.




                                           7
