                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 15-50141
             Plaintiff-Appellee,
                                                  D.C. No.
                   v.                        3:14-cr-00653-BEN

 CARLOS HERRERA-RIVERA,
          Defendant-Appellant.                     OPINION


        Appeal from the United States District Court
           for the Southern District of California
         Roger T. Benitez, District Judge, Presiding

                    Submitted April 6, 2016*
                      Pasadena, California

                        Filed August 12, 2016

   Before: A. Wallace Tashima, Barry G. Silverman and
             Susan P. Graber, Circuit Judges.

               Opinion by Judge Silverman;
  Partial Concurrence and Partial Dissent by Judge Graber




  *
    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2            UNITED STATES V. HERRERA-RIVERA

                           SUMMARY**


                           Criminal Law

    The panel affirmed a conviction for possession of
methamphetamine with intent to distribute, vacated the
sentence, and remanded for further proceedings.

    The panel held that the district court did not abuse its
discretion in denying an evidentiary hearing on the
defendant’s motion to suppress, where the motion was not
supported by a declaration from someone with knowledge
who was available for cross-examination at a hearing on the
motion, as required by the Southern District of California’s
Local Criminal Rule 47.1.

    The panel held that the defendant’s contention that the
district court erred in applying Batson’s framework on his
challenge to the government’s striking the only African-
American juror is not supported by the record.

   The panel held that the district court did not clearly err in
denying a minor-role reduction at sentencing.

    The panel held that the district court’s failure, in applying
an obstruction of justice enhancement, to explicitly find that
the defendant’s testimony was willful and material is plain
error affecting the defendant’s substantial rights.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
           UNITED STATES V. HERRERA-RIVERA                   3

     Regarding the defendant’s contention that the government
failed to disclose its suspicion that the defendant was a long-
time pedestrian narcotics smuggler, resulting in prejudice at
trial and at sentencing, the panel held that there was no basis
for reversal where counsel chose not to raise a valid objection
on this purely factual question.

    Judge Graber concurred in all respects except that she
would affirm the enhancement for obstruction of justice
because the defendant has not satisfied the requirements of
plain error review.


                         COUNSEL

Thomas P. Matthews, Law Office of Thomas P. Matthews,
San Diego, California, for Defendant-Appellant.

D. Benjamin Holley, Assistant United States Attorney; Peter
Ko, Assistant United States Attorney, Chief, Appellate
Section, Criminal Division; Laura E. Duffy, United States
Attorney; Office of the United States Attorney, San Diego,
California; for Plaintiff-Appellee.
4          UNITED STATES V. HERRERA-RIVERA

                         OPINION

SILVERMAN, Circuit Judge:

    Carlos Herrera-Rivera appeals his jury trial conviction for
possession of methamphetamine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1), and the 120-month
sentence imposed by the district court. Herrera-Rivera
contends that the district court erred by denying his request
for an evidentiary hearing on his motion to suppress, denying
his Batson challenge without conducting an appropriate
Batson analysis, and denying a minor-role reduction. He
further contends that the government withheld evidence,
resulting in prejudice both at trial and at sentencing. We
reject each of these contentions. However, we agree with
Herrera-Rivera that the district court plainly erred by
applying an obstruction of justice enhancement to his
sentence without making the express findings required by
United States v. Castro-Ponce, 770 F.3d 819 (9th Cir. 2014).
Accordingly, we affirm the conviction, vacate the sentence,
and remand for further proceedings consistent with this
opinion.

I. Background

    A. Facts

    On February 13, 2014, an Intercalifornias bus was
referred to secondary inspection at the Highway 86 Indio
Border Patrol Station in Westmoreland, California. United
States Border Patrol agents boarded the bus, performed an
immigration inspection, and checked the bags in the overhead
compartment to make sure that each belonged to someone on
the bus. A few rows from the back of the bus, agents found
            UNITED STATES V. HERRERA-RIVERA                   5

an unclaimed backpack. Inside, they found six bundles
wrapped in black electrical tape. A subsequent laboratory
analysis showed that the bundles contained more than a
kilogram of methamphetamine.

    Herrera-Rivera was sitting a few rows behind the bag and
had crossed the United States-Mexico border earlier that
morning. Agents searched Herrera-Rivera’s person, with his
consent, and discovered black marks on his stomach that they
believed were residue from electrical tape. Agents also
performed a search, with consent, of two cell phones they
found in Herrera-Rivera’s possession, that contained text
messages appearing to arrange a rendezvous and payment for
Herrera-Rivera’s return trip to Mexico.

     The Border Patrol agents arrested Herrera-Rivera and
placed him in a holding cell. A few hours later, Drug
Enforcement Administration agents arrived at the Border
Patrol Station, read Herrera-Rivera his Miranda rights, and
interviewed him. Herrera-Rivera told the agents that when he
crossed the border that morning, he ran into a friend who
gave him a cell phone and sixty dollars and told him to get on
a bus to Calexico. When Herrera-Rivera arrived in Calexico,
his friend told him to get on the Intercalifornias bus. Herrera-
Rivera also told the agents that he believed there were
narcotics on the bus because he knew his friend was involved
in trafficking.

    The government filed a one count information charging
Herrera-Rivera with possession of methamphetamine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
6           UNITED STATES V. HERRERA-RIVERA

    B. Motion to Suppress

     Herrera-Rivera filed a motion to suppress his statements,
arguing that the Border Patrol and DEA agents conducted a
deliberate two-step interrogation, in violation of Missouri v.
Seibert, 542 U.S. 600 (2004), and United States v. Williams,
435 F.3d 1148 (9th Cir. 2006). The government’s response
was supported by two declarations, the first signed by a
Border Patrol agent and the second by a DEA agent, attesting
to its version of the facts surrounding Herrera-Rivera’s arrest.
Herrera-Rivera, on the other hand, filed a declaration signed
by his lawyer, stating that counsel believed the facts alleged
in the motion were true, based on his conversations with
Herrera-Rivera.

    The district court denied Herrera-Rivera’s motion to
suppress without holding an evidentiary hearing. The court
ruled that it was not required to hold a hearing because
Herrera-Rivera had failed to support his motion with a
declaration by someone with knowledge who was available
for cross-examination, as required by the Southern District of
California’s Local Criminal Rules. The court then found,
based on the agents’ declarations, that Herrera-Rivera was not
in custody when he was questioned by Border Patrol. Thus,
no Miranda warning was required, nor had there been any
impermissible two-step interrogation.

    C. Voir Dire

    Herrera-Rivera proceeded to trial. At the close of voir
dire, the government used a peremptory strike to remove
             UNITED STATES V. HERRERA-RIVERA                          7

Juror 101 from the venire. Herrera-Rivera raised a Batson
challenge, arguing that Juror 10 was the only African-
American male in the jury pool. The government explained
that it struck Juror 10 because it believed he might be
sympathetic to the defense. In support, it stated that Juror 10
had been convicted of assault and that his mother, father, and
brother were drug users. The district court denied the Batson
challenge, saying that “it appears there is a nondiscriminatory
basis for the challenge. It doesn’t appear to be pretextual.”
The court later expanded on its ruling, saying:

         [J]ust to make sure we have a clear record,
         [defense counsel] had made a Batson
         challenge to the government’s exclusion of
         Juror No. 10, I believe. It seemed to me that
         it was pretty clear that there was a prima
         faci[e] showing of race. He was the only
         black male juror in the pool, and [defense
         counsel] so pointed out. . . However, [the
         government] stated a race neutral – what I
         thought was a race neutral, nondiscriminatory
         basis for [the] challenge. And given the
         witness’s answers, it appeared to me that the
         exclusion was not based on racial grounds, but
         rather based on his experiences in the past.




    1
      In his brief, Herrera-Rivera claims that the government used
peremptory strikes to remove two African-American jurors. This is
incorrect. The record shows that there were two African-Americans in the
jury pool, one male and one female. The government struck Juror 10, the
male. It did not strike Juror 29, the female. Moreover, Herrera-Rivera
raised only one Batson challenge in the district court.
8          UNITED STATES V. HERRERA-RIVERA

    D. Trial

    The government’s case-in-chief consisted, in large part,
of the facts detailed above. Herrera-Rivera testified in his
own defense, and told the jury the following: He left his
home in Mexico on February 12, 2014 because he was having
a fight with his wife. His plan was to go to Las Vegas to stay
with his sister. He crossed the border on February 13, 2014,
and was sent to secondary inspection and strip-searched.
After crossing the border, he ran into his cousin, who gave
him sixty dollars to help him get to his sister’s home.
Herrera-Rivera then boarded a bus to Los Angeles, where he
could catch a connecting bus to Las Vegas.

    Herrera-Rivera also told the jury that he did not know
anything about the bag and that he did not make the
incriminating statements to the DEA agents. His personal
cell phone would not work in the United States and,
consequently, he had borrowed the second phone from a
friend. But he had not sent the incriminating text messages.
Moreover, the black marks on his stomach were paint that he
had gotten on his skin while painting a fence the day he left
home.

    The government was able to impeach parts of Herrera-
Rivera’s testimony, using his prior statements to the Border
Patrol and DEA agents, statements he made during a second
interview a few months after his arrest, and the testimony of
a Border Patrol agent who claimed that Herrera-Rivera had
not been strip-searched when he crossed the border.

    On December 11, 2014, the jury found Herrera-Rivera
guilty.
            UNITED STATES V. HERRERA-RIVERA                    9

    E. Sentencing

    The district court imposed sentence on March 23, 2015.
At the outset of the sentencing hearing, the district court
asked the parties whether Herrera-Rivera was entitled to a
minor-role reduction. Herrera-Rivera had not specifically
requested a minor-role reduction in his sentencing paper.
However, when prompted, Herrera-Rivera’s lawyer said that
he would “defer to the court,” that there was no direct
evidence of possession, and that Herrera-Rivera was likely an
intermediate figure tasked with transporting the
methamphetamine from one point to another.                   The
government opposed the reduction, arguing that the burden
was on Herrera-Rivera to prove that he was a minor
participant and that his word was not credible. Moreover, the
government told the court that Herrera-Rivera “came to [the
government’s] attention and was on [its] radar because there
was a look-out on him being a long-time pedestrian narcotics
smuggler.” When the district court observed that it was
hearing this information for the first time, defense counsel
interjected and said, “And, for the record, I didn’t know of it,
either. I know he crossed for work purposes daily, but I
wasn’t aware of any information that he was crossing drugs
before.” However, counsel did not raise any formal
objection, move to strike, complain about a lack of discovery,
seek a continuance, or anything of the sort. The district court
denied the minor-role reduction, saying “I don’t think that
there is sufficient evidence before this court for the court to
find that after looking at the totality of the circumstances, the
defendant was substantially less culpable than the average
participant.”

   The government then argued that an obstruction of justice
enhancement was warranted because Herrera-Rivera had
10          UNITED STATES V. HERRERA-RIVERA

committed perjury at trial. Defense counsel responded that
the enhancement was not justified, as it would unfairly punish
Herrera-Rivera for exercising his right to testify. The district
court applied the enhancement, saying:

       [T]he defendant has the right to testify . . . and
       the defendant has a right to present a defense.
       But the defendant does not have a right to
       either attempt to mislead the court or to
       commit perjury or to obstruct the proceedings.
       And I recall his testimony. And I remember
       when he was testifying, thinking to myself
       that it was – to put it kindly, tenuous at best.

   The district court calculated a guidelines range of
235–293 months and sentenced Herrera-Rivera to 120
months.

II. Jurisdiction and Standards of Review

    We have jurisdiction under 28 U.S.C. § 1291. We review
the district court’s denial of Herrera-Rivera’s request for an
evidentiary hearing on his motion to suppress for an abuse of
discretion. See United States v. Wardlow, 951 F.2d 1115,
1116 (9th Cir. 1991) (per curiam). We review de novo
whether the district court properly applied Batson. See
United States v. Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir.
2015). A district court’s minor-role determination is
reviewed for clear error. See United States v. Rodriguez-
Castro, 641 F.3d 1189, 1192 (9th Cir. 2011). We ordinarily
review a district court’s factual findings for purposes of an
obstruction of justice sentence enhancement for clear error.
See United States v. Castro-Ponce, 770 F.3d 819, 821 (9th
Cir. 2014). Because Herrera-Rivera did not object to the
             UNITED STATES V. HERRERA-RIVERA                  11

district court’s findings on the obstruction of justice
enhancement, we review those findings for plain error. See
Fed. R. Crim. P. 52(b) (“A plain error that affects substantial
rights may be considered even though it was not brought to
the court’s attention.”); United States v. Olano, 507 U.S. 725,
732–37 (1993). Under the plain error standard of review,
“reversal is warranted only where there has been (1) error;
(2) that is plain; (3) that affects substantial rights; and
(4) where the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011). We agree with
Herrera-Rivera that, under this standard, the district court’s
failure to make express factual findings to support the
enhancement was plain error.

III.      Discussion

       A. The Motion to Suppress

    Herrera-Rivera argues that the district court abused its
discretion by denying his request for an evidentiary hearing
on his motion to suppress. The Southern District of
California’s Local Criminal Rule 47.1 states that “[c]riminal
motions requiring a predicate factual finding must be
supported by declaration(s).” S.D. Cal. Crim. R. 47.1(g)(1).
“Each declarant in support of and in opposition to criminal
motions must be made available for cross-examination at the
hearing of the motion.” S.D. Cal. Crim. R. 47.1(g)(4).
Furthermore, “[t]he court need not grant an evidentiary
hearing where either party fails to properly support its motion
or opposition.” S.D. Cal. Crim. R. 47.1(g)(1).

   Herrera-Rivera’s motion was not supported by a
declaration from someone with knowledge who was available
12            UNITED STATES V. HERRERA-RIVERA

for cross-examination at a hearing on the motion. Rather,
defense counsel filed his own declaration stating that he
believed the facts alleged in the motion were true, based on
his conversations with Herrera-Rivera. We have previously
held that a declaration signed by counsel is insufficient to
meet the requirements of the Central District of California’s
equivalent local rule,2 see Wardlow, 951 F.2d at 1116, and we
follow that holding today. Because Herrera-Rivera failed to
meet the requirements of Rule 47.1, there were no contested
issues of fact, properly joined, that necessitated holding an
evidentiary hearing to resolve the motion. Thus, the district
court did not abuse its discretion by denying the request for
a hearing.

     B. The Batson Challenge

     Herrera-Rivera argues that the district court erred by
failing to conduct step three of the required three-step Batson
analysis. “Purposeful racial discrimination in selection of the
venire violates a defendant’s right to equal protection because
it denies him the protection that a trial by jury is intended to
secure.” Batson v. Kentucky, 476 U.S. 79, 86 (1986). In
ruling on a Batson challenge, a district court must apply a
three-part framework:



   2
     The Central District of California’s equivalent local rule states: “A
motion to suppress shall be supported by a declaration on behalf of the
defendant, setting forth all facts then known and upon which it is
contended the motion should be granted. The declaration shall contain
only such facts as would be admissible in evidence and shall show
affirmatively that the declarant is competent to testify to the matters stated
therein.” Wardlow, 951 F.2d at 1116 n.1 (alteration omitted) (quoting
Local Rules of Practice for the United States District Court, Central
District of California R. 9.2 (1985)).
            UNITED STATES V. HERRERA-RIVERA                  13

       First, a defendant must make a prima facie
       showing that a peremptory challenge has been
       exercised on the basis of race; second, if that
       showing has been made, the prosecution must
       offer a race-neutral basis for striking the juror
       in question; and third, in light of the parties’
       submissions, the trial court must determine
       whether the defendant has shown purposeful
       discrimination.

Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016). “The court
cannot simply accept the prosecutor’s reasons as facially
neutral and stop there; it must make an explicit determination
at the third step.” Alvarez-Ulloa, 784 F.3d at 565.

    Herrera-Rivera’s contention that the district court erred in
applying Batson’s framework is not supported by the record.
On the contrary, the district court explicitly found that the
government’s proffered reasons for striking the only African-
American male from the panel were not pretextual and that
the strike was based on the juror’s having a criminal history
and having family members who used drugs, rather than on
his race. There is no evidence in the record that the
government was concerned about Juror 10’s race, and
Herrera-Rivera cannot point to panelists not struck who were
similarly situated to Juror 10. See id. at 567 (noting that
“failure to strike similarly situated venire members can
ground a conclusion that purposeful discrimination
occurred”). Although several potential jurors reported that
they had family members who used drugs, none revealed that
they had been convicted of a crime. Thus, the government’s
concern that Juror 10 might be sympathetic to the defense due
to his prior conviction and relationship to drug users did not
14         UNITED STATES V. HERRERA-RIVERA

apply with equal force to any juror who was permitted to
serve.

     C. The Minor-Role Reduction

    Herrera-Rivera argues that the district court erred by
denying a minor-role reduction. A defendant qualifies for a
minor-role reduction if he is “substantially less culpable than
the average participant.” Rodriguez-Castro, 641 F.3d at
1193. “In addition, it is well established that the defendant
bears the burden of proving that he is entitled to a downward
adjustment based on his role in the offense.” Id. (internal
quotation marks and alteration omitted).

    The district court did not clearly err by finding that
Herrera-Rivera failed to carry his burden of showing that he
was entitled to a minor-role reduction. As is noted above,
Herrera-Rivera did not request a minor-role reduction at
sentencing. Rather, the district court raised the issue on its
own. And, when prompted by the court, defense counsel
stated only that he would “defer to the court,” that there was
no direct evidence of possession, and that Herrera-Rivera was
likely an intermediate figure tasked with transporting the
methamphetamine from one point to another. In light of
counsel’s sparse presentation, we agree with the district court
that there was insufficient evidence to support a finding that
Herrera-Rivera was “substantially less culpable than the
average participant.” Id.

     D. The Obstruction of Justice Enhancement

   Herrera-Rivera argues that the district court erred by
enhancing his sentence without making express findings on
each element of obstruction of justice, as required by United
           UNITED STATES V. HERRERA-RIVERA                  15

States v. Castro-Ponce, 770 F.3d 819 (9th Cir. 2014). A
defendant’s base offense level may be increased by two-
levels if the defendant “willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice. . . “ U.S.S.G. § 3C1.1. However, for perjury to be
deemed obstruction, the district court must make express
findings that: “(1) the defendant gave false testimony, (2) on
a material matter, (3) with willful intent.” Castro-Ponce,
770 F.3d at 822.

    In Castro-Ponce, we held that a district court’s failure to
make the required findings on each element of perjury is
reversible error.

       Absent a requirement of express findings on
       all three prongs necessary for perjury to
       amount to obstruction of justice, we would
       have to speculate about the district court’s
       legal conclusions on obstruction. Rather than
       engage in such speculation, we require the
       fact-finder to make those determinations
       explicitly for our review.

Id. Where the district court fails to make express factual
findings of perjury, the defendant’s substantial rights to take
the stand and testify in his own defense may be chilled,
calling the fairness and integrity of the proceedings into
question. As we explained in Castro-Ponce:

       Obstruction of justice is a serious charge, and
       requires serious proof.        To enhance a
       guidelines sentencing range based on
       obstruction of justice, which often results in
       more time served in prison, a district court
16            UNITED STATES V. HERRERA-RIVERA

        must make explicit findings that not only did
        the defendant give false testimony, but also
        that the falsehoods were willful and material
        to the criminal charges. We decline to adopt
        a more forgiving standard, which could have
        the unintended consequence of chilling a
        criminal defendant’s willingness to take the
        stand and give testimony in his or her defense.
        To require explicit findings on elements
        needed for the obstruction of justice
        enhancement helps ensure reliability and
        reviewability of a sentencing decision.

Id. at 823.

    A good argument can be made that Castro-Ponce applies
too rigid of a rule. However, whatever one might think of the
correctness of Castro-Ponce, no one can doubt its clarity. In
fact, it could not be clearer: the district court must make
express findings on each element of perjury, in the first
instance, before applying an obstruction of justice
enhancement based on a defendant’s testimony at trial. And
as a three-judge panel, we are bound by that holding. See
Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en
banc). Moreover, we note that our approach today is
consistent with our precedents prior to Castro-Ponce, see
United States v. Jimenez-Ortega, 472 F.3d 1102, 1103–04
(9th Cir. 2007) (holding that “we must remand where the
district court failed to make a finding on” materiality), as well
as the approach taken by some of our sister circuits. See
United States v. Kamper, 748 F.3d 728, 748 (6th Cir. 2014)
(reasoning that presuming that the elements of perjury are
satisfied in the absence of specific findings in the district
court raises the risk of “undermining a criminal defendant’s
            UNITED STATES V. HERRERA-RIVERA                   17

constitutional right to testify on his own behalf”); United
States v. Massey, 48 F.3d 1560, 1573–74 (10th Cir. 1995)
(requiring the district court to make findings on willfulness
and materiality).

     Herrera-Rivera argued that the obstruction of justice
enhancement should not be applied to his sentence because it
would unfairly punish him for exercising his right to testify.
The district court rejected this argument and applied the
enhancement, stating that it remembered Herrera-Rivera’s
trial testimony and that it was “to put it kindly, tenuous at
best.” Even if we were to deem this an express finding that
Herrera-Rivera gave false testimony, the fact would remain
that the district court failed to explicitly find that the
testimony was also willful and material. We require the
district court to make express findings as to each element of
perjury in order to preserve the fairness and integrity of the
sentencing process. Failure to do so here is plain error
because, as we have explained above, it affects Herrera-
Rivera’s substantial rights. For these reasons, we conclude
that the sentence must be vacated.

    The government concedes the error. It argues, however,
that the error did not affect Herrera-Rivera’s substantial rights
because the district court ultimately imposed a sentence
below the advisory Guidelines range. We reject this
contention. As the Supreme Court recently held, “[w]hen a
defendant is sentenced under an incorrect Guidelines
range—whether or not the defendant’s ultimate sentence falls
within the correct range—the error itself can, and most often
will, be sufficient to show a reasonable probability of a
different outcome absent the error.” Molina-Martinez v.
United States, 136 S. Ct. 1338, 1345 (2016). Because we see
no reason to depart from Molina-Martinez, we vacate the
18          UNITED STATES V. HERRERA-RIVERA

obstruction of justice enhancement and remand for further
proceedings consistent with this opinion.

     E. Undisclosed Evidence

    Herrera-Rivera contends that the government failed to
disclose its suspicion that he was a long-time pedestrian
narcotics smuggler, resulting in prejudice at trial and at
sentencing. The government responds that the challenged
evidence was, in fact, disclosed. This dispute stands in stark
contrast to the other issues raised by this appeal in that it
presents a purely factual, as opposed to legal, question.
Unlike, for example, the obstruction of justice enhancement
we vacated above, we cannot simply read the record and
determine whether things proceeded as they should have
under our precedents. If this were the task, we could
determine whether there has been a violation of Brady v.
Maryland, 373 U.S. 83 (1963), the rules of discovery, see
Fed. R. Crim. Pro. 16, or due process, see United States v.
Vanderwerfhorst, 576 F.3d 929, 935 (9th Cir. 2009). But this
is not what we are asked to do. Instead, we are asked to
determine, in the first instance, whether or not the
government disclosed its suspicions about Herrera-Rivera’s
past border crossings.

    Defense counsel supposedly believed—maybe correctly,
maybe not—that the government had potentially withheld
evidence to which he was entitled. However, defense counsel
did not object to the district court considering the information
during sentencing or ask for a continuance so that he could
investigate and determine whether anything had been
withheld. Nor did defense counsel file a motion for new trial,
arguing that the government had withheld material evidence
in violation of Brady or the rules of discovery. Instead, he
            UNITED STATES V. HERRERA-RIVERA                 19

simply observed that he had not previously heard of the
government’s suspicions, was content to allow the district
court to go forward with sentencing, and then raised this
undeveloped issue for the first time on appeal.

     “[T]he contemporaneous-objection rule prevents a litigant
from ‘sandbagging’ the court—remaining silent about his
objection and belatedly raising the error only if the case does
not conclude in his favor.” Puckett v. United States, 556 U.S.
129, 134 (2009) (internal quotation marks omitted). This is
exactly what has occurred here. Counsel opted to proceed
with sentencing armed with the information he had. Even
assuming he could have raised a valid objection (a totally
speculative assumption at that) counsel chose not to do so. If
counsel’s choice can be shown to have been both deficient
performance and prejudicial, an ineffective assistance of
counsel claim can be asserted on collateral review. However,
it is no basis to reverse in this direct appeal.

      F. Reassignment on Remand

    Herrera-Rivera requests that we assign his case to a
different district court judge on remand. “Although we
generally remand for resentencing to the original district
judge, we remand to a different judge if there are unusual
circumstances.” United States v. Quach, 302 F.3d 1096, 1103
(9th Cir. 2002) (internal quotation marks omitted). No such
circumstances are present here.

IV.     Conclusion

   AFFIRMED in part; VACATED in part; and
REMANDED for further proceedings consistent with this
opinion.
20          UNITED STATES V. HERRERA-RIVERA

GRABER, Circuit Judge, concurring in part and dissenting in
part:

   With respect to the claim that the district court erred by
enhancing Defendant’s sentence for obstruction of justice, I
would affirm because Defendant has not satisfied the
requirements of plain error review. In all other respects, I
concur.

    Defendant did not raise to the district court, and therefore
did not preserve, his claim regarding the sentencing
enhancement for obstruction of justice. “We review
unpreserved claims of procedural error at sentencing for plain
error.” United States v. Quintero-Junco, 754 F.3d 746, 749
(9th Cir. 2014). Plain error review requires the defendant to
show: (1) that there was an error; (2) that the error was plain;
(3) that the error affected the defendant’s substantial rights;
and (4) that the error “seriously affected the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Macias, 789 F.3d 1011, 1022 (9th Cir. 2015),
cert. denied, 136 S. Ct. 1168 (2016) (internal quotation marks
omitted). Moreover, the defendant, not the government,
“bears the burden of persuasion with respect to prejudice.”
United States v. Olano, 507 U.S. 725, 734 (1993). Defendant
has failed to meet his burden to demonstrate prejudice.

    To support the obstruction-of-justice enhancement, the
district court was required to make express findings that
“(1) the defendant gave false testimony, (2) on a material
matter, (3) with willful intent.” United States v. Castro-
Ponce, 770 F.3d 819, 822 (9th Cir. 2014) (internal quotation
marks omitted). The district court erred by not making all
three findings expressly, and the error was plain. But the
           UNITED STATES V. HERRERA-RIVERA                  21

analysis cannot stop there; those are only the first two of the
four elements of reversible plain error.

      In my view, the district court did find—albeit in
colloquial terms—that Defendant had testified falsely and
that he did so with willful intent. When applying the
sentencing enhancement for obstruction of justice, the court
stated that, although “the defendant has the right to testify,
. . . the defendant does not have a right to either attempt to
mislead the court or to commit perjury or to obstruct the
proceedings.” The court’s clear meaning was that Defendant
did attempt to mislead the court, commit perjury, and obstruct
the proceedings. And the court further commented that
Defendant’s testimony “was—to put it kindly, tenuous at
best”; that’s a polite way to say that he lied.

    As to the third requirement, materiality, the court did not
make a finding. But on this record there can be no doubt that
Defendant’s willfully false testimony related to a material
issue. Defendant repeatedly denied that the drug-filled
backpack was in his possession and denied that he had
brought the backpack onto the bus. Despite Defendant’s
testimony, the jury found that the backpack was his. The
false testimony went to the heart of the case.

     The majority makes two mistakes, in my view. The first
is to rely on precedent pertaining to an incorrect Guidelines
calculation, Molina-Martinez v. United States, 136 S. Ct.
1338 (2016). Maj. op. at 17–18. This case is not about an
incorrect calculation; it is about the applicability of an
enhancement that (like the underlying range) was correctly
calculated.
22           UNITED STATES V. HERRERA-RIVERA

    The majority’s second mistake is its failure to analyze
fully the third and fourth elements of plain error review. I
agree with the majority that the length of the sentence
imposed is not the proper measure and that the government’s
argument in that regard is unpersuasive. Maj. op. at 17–18.
But we have an independent obligation to review the entire
record to determine whether Defendant has met his burden to
show prejudice. The majority’s failure to do so puts us at
odds with at least one sister circuit. See United States v.
Chibuko, 744 F.3d 259, 267 (2d Cir. 2014) (per curiam)
(reviewing for plain error a district court’s erroneous failure
to make the requisite findings to support an obstruction-of-
justice sentencing enhancement and affirming on the ground
that “the record as a whole” demonstrated that the lack of
more detailed findings caused no prejudice).1 There is no
good reason to create a circuit split; our sister circuit’s
holistic approach is consistent with our own precedent that
we review for plain error an unpreserved claim of a
procedural flaw at sentencing and that actual prejudice is
required for a defendant to obtain a remand.

    Although the majority purports to apply the plain-error
framework, the practical effect of its holding is to require a
remand in every case in which a district court applies the
obstruction of justice enhancement but makes incomplete
findings. The majority reasons generically that a defendant’s
“substantial rights” to take the stand and testify “may be

  1
    See also United States v. Martinez, 547 F. App’x 559, 563 (5th Cir.
2013) (per curiam) (unpublished) (applying the same analysis and
affirming on the ground that “the record demonstrate[d] that [the
defendant’s] testimony was false, material, and willful”). But, pursuant
to Fifth Circuit Rule 47.5, unpublished opinions issued after January 1,
1996, are not precedential except in limited circumstances that do not
apply here.
              UNITED STATES V. HERRERA-RIVERA                          23

chilled” when the district court fails to make express factual
findings of perjury and that this chilling effect calls into
question the fairness and integrity of the proceedings. Maj.
op. at 15. That reasoning would apply automatically in every
similar case and it abdicates our responsibility to examine
actual prejudice, that is, to determine whether a particular
failure to make a particular finding made any difference to
the application of the enhancement to a particular defendant.
The majority nowhere undertakes that required review.

    Nor does Castro-Ponce, 770 F.3d at 821–22, support the
majority’s reasoning or result. We did not review for plain
error in that case, so it does not control. Instead—presumably
because Castro-Ponce had objected below to the imposition
of the obstruction enhancement—we reviewed for clear error
the findings that the district court made and reviewed de novo
that court’s characterization of the defendant’s conduct as
constituting obstruction of justice. Id.2 Unlike Defendant
here, Castro-Ponce did not have to demonstrate prejudice.
The majority’s wholesale importation of the Castro-Ponce
discussion, without considering the plain error context in
which the question arises here and without coming to grips
with the requirement that Defendant show actual prejudice,
eviscerates the plain error standard. In essentially every
plain-error case, we depart from the standard of review
otherwise employed when the defendant preserved the issue.
By ignoring that distinction, the majority’s reasoning
conflicts not only with the analysis applied by our sister
circuit in identical circumstances, but also with our own
plain-error precedents.



 2
   In fact, none of the cases cited by the majority at pages 16–17 reviewed
for plain error; all reviewed for preserved error.
24          UNITED STATES V. HERRERA-RIVERA

    Because the district court found that Defendant’s
testimony was willfully false, and because the record
demonstrates that Defendant’s testimony was false, related to
a material matter, and willful, he cannot satisfy his burden to
show that the district court’s error—making incomplete
findings—was prejudicial. Accordingly, the third and fourth
elements of reversible plain error are lacking. The error did
not affect Defendant’s substantial rights, and the error did not
seriously affect the fairness, integrity, or public reputation of
the proceedings. I therefore dissent from the majority’s
contrary holding.
