United States v. Paula Harris , 597 F. App'x 441 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 16 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50478
Plaintiff - Appellee, D.C. No. 2:04-cr-01416-RGK-2
v.
MEMORANDUM*
PAULA CAMEO HARRIS,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-50496
Plaintiff - Appellee, D.C. No. 2:04-cr-01416-RGK-1
v.
PAUL H. RICHARDS, II,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted March 4, 2015
Pasadena California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: FERNANDEZ, PARKER**, and NGUYEN, Circuit Judges.
Paul Richards and Paula Cameo Harris appeal from their second re-
sentencing arising from their convictions for various offenses including fraud,
extortion, money laundering, false statements, and perjury. See 18 U.S.C. §§ 1001,
1346, 1341, 1623, 1951, & 1956(a)(1)(A)(i). At re-sentencing, the district court
reduced both their sentences to below-Guidelines sentences of 168 months for
Richards and 66 months for Harris, but declined to alter the underlying Guidelines
calculations or change the amount of money either defendant owed in restitution.
Both defendants argue that their sentences are procedurally and substantively
unreasonable. Additionally, Harris argues that the district court erred in calculating
the amount of her restitution.
A district court’s sentencing decisions are reviewed for abuse of discretion.
Gall v. United States, 552 U.S. 38, 49 (2007). This Court also reviews restitution
decisions for abuse of discretion. United States v. De La Fuente, 353 F.3d 766, 722
(9th Cir. 2003) .
Richards argues that his sentence is procedurally unreasonable because the
court failed to alter his Guidelines calculation after some of his honest services
**
The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
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fraud convictions were vacated under United States v. Skilling. 561 U.S. 358(2010). He also contends that the district court failed to explain its decision.
However, Richards’ remaining convictions include several counts of honest
services fraud and enough intended loss remains attributable to his fraud that his
Guidelines range was not altered. In any event, the district court chose to vary
downward from the Guidelines in fashioning an appropriate sentence and
sufficiently justified that decision. See United States v. Carty, 520 F.3d 984, 991-
93 (9th Cir. 2008) (en banc).
Harris makes the same arguments as Richards in relation to vacated honest
services fraud convictions and also points out an uncorrected error in her
Presentencing Report. The Government agrees that this error exists and that it
affected the district court’s calculation of intended loss, but disagrees with Harris’
assertion that removing the error would alter her final Guidelines calculation. We
agree with the Government that the Guideline range would not be altered.
Moreover, the district court ultimately did not rely on this calculation in
sentencing, and varied downward from her Guidelines range because of concerns
on the part of the court that it did not appropriately reflect Harris’ lesser degree of
culpability. The court adequately explained this choice. See id.3
However, the district court erred in its restitution calculation because it
attributed losses to Harris that she had no part in creating. Specifically, both she
and the Government agree that Harris played no part in the waste hauling scheme
in which Richards and another defendant were charged. But the district court
erroneously attributed this fraud to Harris in determining how much restitution she
owed. See United States v. DeGeorge, 380 F.3d 1203, 1221 (9th Cir. 2004)
(restitution must be “directly, not tangentially, related to [the defendant’s
offenses]”) (emphasis in original). Therefore, we vacate the district court’s
restitution order and remand for the limited purpose of correcting this error.
AFFIRMED in part and VACATED and REMANDED in part.
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