United States v. Kirisimasi Masuisui

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2022
• Docket: 19-10349
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10349

Plaintiff-Appellee, D.C. No. 1:14-cr-00173-DKW-1 v.

KIRISIMASI MASUISUI, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding

Argued and Submitted February 15, 2022 Honolulu, Hawaii

Before: HAWKINS, R. NELSON, and FORREST, Circuit Judges.

Defendant Kirisimasi Masuisui (“Masuisui”) appeals his conviction and 292-

month sentence for conspiring to possess/distribute methamphetamine and cocaine

and possession with intent to distribute methamphetamine. We affirm.

There was no abuse of discretion in denying Masuisui’s motion to withdraw

his guilty plea. Masuisui did not demonstrate a “fair and just reason” for requesting

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. withdrawal of his plea nearly two years after its entry. See Fed. R. Crim. P.

11(d)(2)(B); United States v. Ensminger, 567 F.3d 587, 590‒91 (9th Cir. 2009). The

district court conducted an adequate investigation into any medications Masuisui

was taking at the time of the plea colloquy, and there is no indication from the record

that the plea was not voluntary, knowing, and intelligent or that the medications

otherwise impaired Masuisui’s ability to participate in the proceedings. See United

States v. Carter, 795 F.3d 947, 952‒55 (9th Cir. 2015).

Nor did the district court clearly err in finding Masuisui had obstructed justice

and applying a two-level enhancement for such conduct at sentencing. The district

court properly relied on evidence that had been submitted in connection with the

government’s motion for detention in which two witnesses indicated Masuisui and

his wife had sent a verbal and written communication to co-defendant Auelua. The

court found that this communication, even if not a direct threat, was at least an

attempt to unlawfully influence a co-defendant/witness not to cooperate with

authorities. See U.S.S.G. § 3C1.1. Although the witnesses did not personally appear

at the detention hearing, their statements given to the government were substantially

similar, and the court found them reliable. See United States v. Berry, 258 F.3d 971,

976 (9th Cir. 2001) (court may rely on hearsay at sentencing).

Likewise, there was no clear error in finding Masuisui was an organizer or

leader of a conspiracy involving five or more participants. See U.S.S.G. § 3B1.1(a).

2 The court found that at least five individuals (including Masuisui himself) were

involved in the conspiracy, most of whom Masuisui named in either his plea

colloquy or post-arrest statement. The district court also adequately set forth reasons

for finding Masuisui was an organizer or leader within the conspiracy, including his

control over shipments between San Francisco and Hawaii, setting prices, and

directing others where and when to transport drugs and/or currency. See United

States v. Rivera, 527 F.3d 891, 908‒09 (9th Cir. 2008).

There was no abuse of discretion in denying Masuisui’s motion for a seventh

continuance of his sentencing, which ultimately took place nearly three years after

entering his guilty plea. See United States v. Walter-Eze, 869 F.3d 891, 907‒08 (9th

Cir. 2017). Nor did the court violate Rule 32, which requires the court at sentencing

to “verify that the defendant and the defendant’s attorney have read and discussed

the presentence report [“PSR”] and any addendum to the report.” Fed. R. Crim P.

32 (i)(1)(A). Although Masuisui’s sentencing counsel stated she had not gone over

the PSR “page by page” with him, she further indicated she had reviewed the PSR

with him “in general” and believed he knew and understood its contents.

Even if this were considered error, any such error was harmless because

Masuisui’s prior attorneys had filed objections to the PSR, which his new attorney

agreed with and argued at sentencing. Masuisui has not affirmatively alleged that

he failed to review the PSR with prior counsel. In any event, Masuisui cannot

3 demonstrate that there were material additional objections that could have been

made to the PSR which resulted in prejudice to him. See United States v. Soltero,

510 F.3d 858, 862‒64 (9th Cir. 2007) (per curiam); United States v. Davila-

Escovedo, 36 F.3d 840, 844 (9th Cir. 1994). 1

AFFIRMED.

1 Appellee’s motion to strike portions of the opening brief (Dkt. Entry No. 28) is denied as moot.