United States v. Steven Miller ( 2010 )

FILED
NOT FOR PUBLICATION JUN 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30176
Plaintiff - Appellee, D.C. No. 3:07-cr-00430-MO-1
District of Oregon,
v. Portland
STEVEN EDWARD MILLER, ORDER
Defendant - Appellant.
Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.
The memorandum disposition filed on February 25, 2010, is hereby
amended. The amended memorandum is attached hereto. With this amendment,
the panel has unanimously voted to deny the petition for rehearing. Judges Berzon
and Nelson have voted to deny the suggestion for rehearing en banc, and Judge
Farris so recommends.
The full court has been advised of the suggestion for rehearing en banc, and
no active judge has requested a vote on whether to rehear the matter en banc. Fed.
R. App. P. 35.
The petition for rehearing is DENIED and the suggestion for rehearing en
banc is REJECTED. No further petitions for rehearing or rehearing en banc may
be filed.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 11 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09s30176
Plaintiffs s Appellee, D.C. No. Cr 07s430sMWM
v. AMENDED
MEMORANDUM *
STEVEN EDWARD MILLER,
Defendant s Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted December 8, 2009
Portland, Oregon
Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.
Between August 2004 and November 2006, the defendant Steven Miller
engaged in a complex scheme to defraud Cisco Systems, Inc. Miller pled guilty to
one count of mail fraud and one count of money laundering without a plea
agreement, and did not plead guilty to ten other counts.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36s3.
We review a district court’s methodology for calculating loss under the
Sentencing Guidelines de novo. United States v. Hardy, 289 F.3d 608, 613 (9th
Cir. 2002). We look to the fair market value of the property and in particular the
value “at which th[e] victim offered the goods for sale.” Id. (internal quotation
omitted). This valuation method requires us to look at the market that the victim
participated in. Cisco does not participate and compete in the gray market. It does
not sell replacement parts and it does not do direct sales through the internet.
Cisco’s market is solely authorized distributors and large direct buyers, and
Cisco’s product is inclusive of the warranty and service. Cisco provides
replacement parts as part of its warranty instead of selling them. The district
court’s loss calculation was therefore proper.
We review for clear error a district court’s refusal (after the government
declines to move for the extra reduction) to grant an additional oneslevel
downward adjustment for acceptance of responsibility. United States v. Johnson,
581 F.3d 994, 1001 (9th Cir. 2009). The government has discretion on whether to
move for the extra reduction so long as its refusal is not arbitrary or motivated by
an unconstitutional factor. Id. We have conclusively determined that a defendant
who fails to waive her right to appeal justifies the failure to request the reduction.
Id. at 1002; see also United States v. MedinasBeltran, 542 F.3d 729, 731 (9th Cir.
2
2008). Here, although Miller pleaded guilty to two counts of the indictment and
avoided a trial on the substantive offenses, he preserved his right to object to the
government’s loss figure and failed to waive his right to appeal any sentencings
related issues, even after the plea agreement had fallen apart.1 Thus, the district
court did not err.
United States v. Watt, 910 F.2d 587 (9th Cir. 1990), is inapplicable. It
applied to the twoslevel acceptance of responsibility reduction that is mandatory if
the defendant enters a timely guilty plea. The decision here is discretionary and
the government can properly ask for various conditions that ease its resource
burdens in exchange for the additional onespoint reduction. See Johnson, 581
F.3d at 1006s07.
We review a district court’s sentencing decisions under the abuse of
discretion standard. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009).
The district court offered a sufficient explanation for giving a sentence that was
higher than similar defendants who had committed fraud against Cisco. See United
States v. Gordon, 393 F.3d 1044 (9th Cir. 2004). The other defendants had no
criminal history whereas Miller had a criminal history level of three. This was
1
Even after the government dropped the loss figure to $3,713,107, Miller
continued to contest it, rather than offering at that juncture to agree to the loss
figure in return for a motion under y 3E1.1(b).
3
sufficient to justify the sentence.
AFFIRMED.
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