United States v. Flavio De Morais , 488 F. App'x 246 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 05 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-10650
Plaintiff - Appellee, D.C. No. 3:10-cr-00557-JW-1
v.
MEMORANDUM*
FLAVIO DE MORAIS,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted October 17, 2012
San Francisco, California
Before: B. FLETCHER,** HAWKINS, and MURGUIA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Betty Binns Fletcher, Senior Circuit Judge for the
Ninth Circuit Court of Appeals, fully participated in the case and concurred in the
judgment prior to her death.
Flavio De Morias entered into an agreement to plead guilty to one count of
mail fraud on August 5, 2010. The district court awarded $161,149 in restitution
to Bank of America. De Morais appeals this award of restitution. We affirm.
We do not decide whether De Morais waived his right to appeal the
restitution order,1 for even if the plea agreement did not waive his right to appeal,
we affirm the sentence.
Because De Morais challenges for the first time on appeal the sufficiency of
the evidence supporting the amount of restitution owed this challenge is subject to
plain error review. United States v. Bright, 353 F.3d 1114, 1120 (9th Cir. 2004).
The district court properly relied on the uncontested presentence report to
determine the amount of restitution owed by De Morais. Fed. R. Crim. P.
32(i)(3)(A) (“At sentencing, the court: may accept any undisputed portion of the
presentence report as a finding of fact.”); United States v. Ameline, 409 F.3d 1073,
1085 (9th Cir. 2005) (en banc). Moreover, even if the district court did err, De
Morais would not prevail under plain error review because he has not shown that
“the error affected [his] substantial rights, that is, [that] the outcome of [his]
sentencing was affected by the” the reliance on the PSR’s determination of
1
See generally United States v. Tsosie, 639 F.3d 1213, 1217-18 (9th Cir.
2011) (plea agreement provided insufficient notice to effectively waive right to
appeal award of restitution)
2
restitution. Ameline, 409 F.3d at 1078. Because De Morais does not challenge the
calculations in the PSR, his sentence would not have been different if court had
made its own factual findings, rather than relying on the PSR.
De Morais challenged Bank of America’s eligibility to receive restitution at
the district court and we review the district court’s decision for abuse of discretion.
United States v. Lazarenko, 624 F.3d 1247, 1249 (9th Cir. 2010). While De
Morais asserted that “there would probably be a truck load of evidence” that Bank
of America was complicit in his fraud, he presented no such evidence. The district
court was correct, and did not abuse its discretion, when it determined that De
Morais lacked a “factual basis” for his claim.
Finally, De Morais has not presented any relevant evidence suggesting that
he is entitled to discovery or an evidentiary hearing on Bank of America’s alleged
complicity. See United States v. Abonce-Barrera, 257 F.3d 959, 970 (9th Cir.
2001) (Brady discovery requires more than a “hunch” that exculpatory evidence
exists). In fact, his plea agreement explicitly waives the right to further discovery.
See United States v. Ruiz, 536 U.S. 622, 633 (2002) (plea agreement can waive
discovery of evidence relating to affirmative defenses).
AFFIRMED.
3