United States of America v. JOHN KEVIN MOORE, AKA Kevin Moore

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN KEVIN MOORE, AKA Kevin
Moore,
Defendant-Appellant.
No. 20-30273
D.C. Nos.
4:17-cr-00042-BMM-1
4:17-cr-00042-BMM
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted August 19, 2021**
San Francisco, California
Before: McKEOWN and PAEZ, Circuit Judges, and HUCK,*** District Judge.
On a prior appeal, among other things, we affirmed the district court’s
application of a sentencing enhancement for obstruction, reversed the district
* 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).
*** The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
FILED
AUG 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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court’s application of a sentencing enhancement for abuse of trust, and remanded
for resentencing. The district court imposed a new sentence after remand, and
John Kevin Moore again appeals the district court’s application of a sentencing
enhancement for obstruction. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
The district court previously found that Moore falsely testified, that his false
statement was willful, and that it was material. See United States v. Castro-Ponce,
770 F.3d 819, 822 (9th Cir. 2014) (“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.” (internal quotation marks omitted)). We
affirmed.
On remand, the district court properly declined to reconsider the U.S.S.G.
§ 3C1.1 obstruction enhancement based on the law of the case doctrine. See
Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc) (“Under the
law of the case doctrine, a court will generally refuse to reconsider an issue that
has already been decided by the same court or a higher court in the same case.”).
Moore contends that at trial he did not make the false statement, such that our
opinion was clearly erroneous and supports an exception to the law of the case
doctrine. See id. (“We have recognized exceptions to the law of the case
doctrine . . . where (1) the decision is clearly erroneous and its enforcement would

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work a manifest injustice, (2) intervening controlling authority makes
reconsideration appropriate, or (3) substantially different evidence was adduced at
a subsequent trial.” (internal quotation marks omitted)). We disagree. We
previously concluded that the record supported the enhancement, and no exception
to the law of the case doctrine is applicable.
AFFIRMED.

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