United States v. Morrison

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 26, 2025
• Docket: 24-1558
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 26 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-1558 D.C. No. Plaintiff - Appellee, 1:22-cr-00060-LEK-2 v. MEMORANDUM* GWYNN DARLE MORRISON, AKA Julie Lyn Montague,

Defendant - Appellant.

Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding

Argued and Submitted June 3, 2025 Honolulu, Hawaii

Before: W. FLETCHER, CHRISTEN, and DESAI, Circuit Judges.

Gwynn Darle Morrison appeals the district court’s sentence of 34-months

imprisonment followed by a three-year term of supervised release for conspiring to

make false representations to a government agency under 18 U.S.C. § 371,

aggravated identity theft under 18 U.S.C. § 1028A, and making and conspiring to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. make false statements in an application for and use of a passport under 18 U.S.C.

§§ 371, 1542. Morrison appeals her sentence on two grounds: First, she argues that

the district court violated Federal Rule of Criminal Procedure 32(i)(3) by failing to

resolve a factual dispute regarding whether she willfully obstructed justice. Second,

she argues that the district court abused its discretion by applying an obstruction of

justice enhancement under U.S.S.G. § 3C1.1. We have jurisdiction under 28 U.S.C.

§ 1291. We vacate Morrison’s sentence because the record does not support the

obstruction of justice enhancement.

We review de novo the district court’s compliance with Rule 32, United States

v. Saeteurn, 504 F.3d 1175, 1178 (9th Cir. 2007), and its interpretation of the

Sentencing Guidelines, United States v. Scott, 83 F.4th 796, 799 (9th Cir. 2023). We

review the district court’s application of the Guidelines to the facts for abuse of

discretion and its factual findings for clear error. United States v. Gasca-Ruiz, 852

F.3d 1167, 1170 (9th Cir. 2017) (en banc).

1. The district court did not violate Rule 32. Under this rule, a sentencing

court “must—for any disputed portion of the presentence report or other

controverted matter—rule on the dispute or determine that a ruling is unnecessary

either because the matter will not affect sentencing, or because the court will not

consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). Here, the district

court satisfied Rule 32 when it acknowledged and overruled Morrison’s objection to

2 24-1558 the portion of the presentence report asserting that she “willfully” obstructed justice.

See United States v. Doe, 488 F.3d 1154, 1158 (9th Cir. 2007). Furthermore, by

adopting the factual statements contained in the presentence report, the district court

“sided with the government” on this dispute of fact. See id. at 1159.

2. On the facts of this case, the district court abused its discretion by

imposing the two-level enhancement for obstruction of justice. U.S.S.G. § 3C1.1

imposes a two-level offense increase if 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.” The

Guideline’s application notes provide examples of covered conduct, such as perjury,

but also provide limitations on the applicability of the adjustment. See U.S.S.G.

§ 3C1.1 cmt. n.4(B), n.2.

The record does not support the district court’s application of the obstruction

of justice enhancement to Morrison’s sentence. First, because the criminal charges

brought against Morrison were directed at her false identification as Julie Lyn

Montague, Morrison’s repeated unsworn statements that she is Julie Lyn Montague

constituted denials of guilt, which cannot form the basis for an obstruction of justice

enhancement. U.S.S.G. § 3C1.1, cmt. n.2 (explaining that a “defendant’s denial of

guilt (other than a denial of guilt under oath that constitutes perjury)” or “refusal to

admit guilt . . . is not a basis for application of this provision”). Second, the district

3 24-1558 court made no express factual findings that Morrison gave “false testimony” and that

“the falsehoods were willful and material to the criminal charges.” See United States

v. Castro-Ponce, 770 F.3d 819, 823 (9th Cir. 2014); see also U.S.S.G. § 3C1.1 cmt.

n.2 (explaining that “inaccurate testimony or statements sometimes may result from

confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or

statements necessarily reflect a willful attempt to obstruct justice”). Therefore, the

record does not support applying the obstruction of justice enhancement based on

perjury.

The government forfeited any argument that the erroneous application of the

enhancement was harmless error. United States v. Yates, 16 F.4th 256, 271 (9th Cir.

2021) (“[W]e have held that a claim of harmless error is subject to forfeiture, and

that we will not consider it when, as in this case, the government does not advance

a developed theory about how the errors were harmless.” (quotation omitted)). That

said, even if we consider harmlessness sua sponte, see id., we conclude that the

district court’s error was not harmless. Without the obstruction of justice

enhancement, Morrison’s Guidelines range would have been 6 to 12 months, rather

than 10 to 16 months. U.S.S.G. Ch. 5, Pt. A. Nothing in the sentencing colloquy

suggests the district court would have “impose[d] the same sentence regardless of

the Guidelines calculation.” United States v. Leal-Vega, 680 F.3d 1160, 1170 (9th

Cir. 2012); United States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir. 2011)

4 24-1558 (per curiam). Accordingly, we vacate the obstruction of justice enhancement and

remand the case for resentencing.

VACATED and REMANDED.

5 24-1558