United States of America v. Gregory Todd Numann

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY TODD NUMANN,
Defendant-Appellant.
No. 18-30135
D.C. No.
3:16-cr-00065-TMB-1
MEMORANDUM*
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.
FILED
AUG 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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
1 At least one Ninth Circuit panel has found that obstructive conduct must be
“part of the instant offense of conviction” to qualify as obstruction under U.S.S.G.
§ 3C1.1. United States v. Williams, 693 F.3d 1067, 1076 (9th Cir. 2012).
However, other panels have held that there is no “requirement that the obstructive
conduct relate substantively to the offense of which the defendant is convicted.”
United States v. Hernandez-Ramirez, 254 F.3d 841, 844 (9th Cir. 2001); United
States v. Verdin, 243 F.3d 1174, 1180 (9th Cir. 2001). We decline to resolve this
inconsistency here.
2 The sentence that Numann received was below the Guidelines range for his
offense with (324 to 360-months) or without (262-327 months) the obstruction of
justice enhancement applied.
2

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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
3 The government argues (for the first time on appeal) that no impermissible
adverse inference was drawn because Numann’s failure to provide the password to
the Apple laptop was not protected by the Fifth Amendment. We decline to
consider this argument, because it was not raised before the district court. Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
3

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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.
4

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