United States v. Gregory Numann

FILED NOT FOR PUBLICATION AUG 15 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30135 Plaintiff-Appellee, D.C. No. 3:16-cr-00065-TMB-1 v. GREGORY TODD NUMANN, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding Submitted August 7, 2019** Anchorage, Alaska Before: TALLMAN, IKUTA, and N.R. SMITH, Circuit Judges.

Gregory Todd Numann appeals his 240-month term of imprisonment. We have jurisdiction under 18 U.S.C. § 3742, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1. Numann argues that the district court erroneously applied a two-level enhancement for obstruction of justice pursuant to United States Sentencing Guidelines Manual (“U.S.S.G.”) § 3C1.1 when it sentenced him. Assuming without deciding that this enhancement was improperly applied,1 the error was harmless. When it sentenced Numann, the district court expressly “acknowledge[d] that the correct Guidelines range [was] in dispute and perform[ed] [its] sentencing analysis twice, beginning with both the correct and incorrect range,” United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th Cir. 2011) (per curiam), and specifically stated that it had determined that a 240- month sentence was appropriate under either Guidelines range.2 2. Numann argues that the district court drew an adverse inference and increased his sentence because Numann failed to provide the password to one of the computers (the “Apple laptop”) that law enforcement seized when they searched Numann’s home. Though the district court stated more than once during the sentencing hearing that Numann would not be punished for his failure to provide that password, the district court also stated that Numann’s decision to withhold the password prevented it from determining the level of risk that Numann would pose to the public in the future. As the district court’s remarks seem to suggest that this “missing piece” prevented it from considering all of the factors referenced by 18 U.S.C. § 3553(a), and thereby prevented it from considering a lesser punishment or shorter sentence, we find that an adverse inference was drawn.

However, even assuming that the adverse inference was improper,3 any error was harmless. The adverse inference was discussed by the district court in connection with the court’s assessment of Numann’s risk of re-offending, and the degree to which the court would need to protect the public against such a possibility in the future. See 18 U.S.C. § 3553(a). Based on the evidence before it, the district court found that Numann posed a significant risk to the public, and that a lengthy term of imprisonment was required as a result. Though Numann’s password-related conduct is mentioned, the district court noted that its conclusion was supported by other facts in the record before it, namely: (1) the serious nature of the present offense; (2) Numann’s admitted past sexual abuse of his daughter; (3) Numann’s manipulation of his daughter after the sexual abuse came to light during the investigation into the present offense; and (4) Numann’s inability (or unwillingness) to grasp the severity of his criminal conduct. Numann did not dispute any of those facts below, nor has he sought to challenge them on appeal.

Based on these undisputed facts, and because Numann has not identified any evidence in the record that persuades us that a lesser sentence would have been imposed but for this inference, any error was harmless. United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010).

AFFIRMED.