US
v. Herrera-Rivera, No. 15-50141 (8-12-16)(Silverman
w/Tashima; Graber partial dissent). The
9th affirmed the possession with intent to distribute conviction, but found
plain error in adjusting for obstruction of justice. At sentencing, in assessing an obstruction
enhancement, the district court found that the defendant's testimony was
"tenuous" at best. The court
though had to, in addition, explicitly find that the testimony was willful and
material. It failed to do so. This affected the defendant's substantive
right, even if the court had varied downward.
Graber, dissenting, believes there was no plain error on the record.
The decision is here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/12/15-50141.pdf
1 Comments:
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