United States v. Aaron New

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 26, 2023
• Docket: 21-10198
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10198

Plaintiff-Appellee, D.C. Nos. 2:11-cr-00210-JAM-3 v. 2:11-cr-00210-JAM

AARON NEW, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted January 24, 2023** San Francisco, California

Before: GOULD, RAWLINSON, and BRESS, Circuit Judges.

Following our remand for resentencing, Aaron New appeals the district

court’s re-imposition of a two-level sentencing enhancement for obstruction of

justice based on New committing perjury during his criminal trial involving a

mortgage fraud scheme. We have jurisdiction under 28 U.S.C. § 1291. We “review

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). a district court’s factual findings for purposes of an obstruction of justice sentence

enhancement for clear error.” United States v. Herrera-Rivera, 832 F.3d 1166, 1172

(9th Cir. 2016). We affirm.

A two-level enhancement may be imposed when a “defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of

justice with respect to the investigation, prosecution, or sentencing of the instant

offense of conviction.” U.S.S.G. § 3C1.1. For perjury to be deemed obstruction,

the district court must find 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) (quoting United States v. Garro, 517 F.3d 1163, 1171 (9th

Cir. 2008)). “Although it is ‘preferable’ for the court to make a separate and clear

finding for each element of the alleged perjury, doing so is unnecessary where the

court makes a determination of an obstruction of justice ‘that encompasses all of the

factual predicates for a finding of perjury.’” United States v. Armstrong, 620 F.3d

1172, 1176 (9th Cir. 2010) (quoting United States v. Dunnigan, 507 U.S. 87, 95

(1993)). In this case, between the court’s express finding that New willfully gave

false testimony on material matters and its adoption of the examples in the

government’s sentencing memorandum, the district court sufficiently articulated its

findings.

In addition, the record supports the district court’s determination that New

2 willfully gave false testimony on material matters. That New lied about his lack of

knowledge regarding fraudulent loan applications is supported by the fact that

numerous fraudulent applications were submitted under his name. New was

responsible for verifying the accuracy of the loan applications for which he was the

loan officer. And a witness testified that New often personally dropped off the loan

files to the escrow company. But when the FBI showed New some of the fraudulent

loan applications he had signed, he did not claim—as he later would—that his

signatures had been forged, nor did he express any surprise as to their contents.

The record also supports the district court’s determination that New made

false statements regarding his knowledge of shell companies integral to the

fraudulent scheme. At trial, New testified that he did not know that Ardis

Construction, Markevich Home Improvement, and Brazil, Inc., were shell

companies created to launder funds. But the government demonstrated that New

had extensive knowledge that these were shell entities used to perpetuate a fraud.

The record further supports that New falsely testified regarding his knowledge of

fraudulent liens placed on properties for which he was the mortgage broker, his

intent to occupy a property for which he had obtained a mortgage, and the length of

his employment, which was relevant to whether his loan application was fraudulent.

In sum, the district court did not clearly err as it based the two-level

obstruction of justice enhancement on sufficient evidence.

3 AFFIRMED.