United States v. Neil A. Thomsen , 830 F.3d 1049 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50235
Plaintiff-Appellee,
D.C. No.
v. 3:10-CR-02810-BEN
NEIL THOMSEN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted June 8, 2016
Pasadena, California
Filed July 28, 2016
Before: Stephen Reinhardt and Kim McLane Wardlaw,
Circuit Judges, and Mark W. Bennett, Senior District
Judge.*
Opinion by Judge Bennett
*
The Honorable Mark W. Bennett, Senior District Judge for the U.S.
District Court for the Northern District of Iowa, sitting by designation.
2 UNITED STATES V. THOMSEN
SUMMARY**
Criminal Law
The panel affirmed in part, reversed in part, and remanded
in a case in which the defendant, a tax preparer, was
convicted of 32 federal offenses arising from a tax fraud
scheme.
The panel held that 18 U.S.C. § 1546(a) (fraud and
misuse of visas, permits, and other documents) does not apply
to documents that are not immigration-related, such as U.S.
passports or U.S. passport cards, and that the district court
therefore erred by denying the defendant’s motion for
judgment of acquittal as to Count 33, which charged a
violation of § 1546(a), and Count 34, which charged
aggravated identity theft during and in relation to the felony
passport card fraud offense.
The panel held that the district court did not err, as a
matter of law, in concluding that awarding restitution for
related conduct beyond the conduct for which the defendant
was specifically convicted was within statutory bounds. But
the panel held that the district court clearly erred, on a
question of fact, in finding that the conduct at issue in a
second case, in which the defendant was not convicted, was
sufficiently “related” to the conduct at issue in the first case
to warrant inclusion of losses in the order for restitution
pursuant to 18 U.S.C. § 3663A(a)(2).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. THOMSEN 3
The panel held that the district court erred by using
the 2011 rather than the 2008 version of U.S.S.G.
§ 2B1.1(b)(2)(C) to calculate the number of victims at
sentencing.
The panel held that the primary flaw with the district
court’s “intended loss” finding under U.S.S.G. § 2B1.1(b)(1)
is that the district court improperly considered the intended
loss from the second case, which did not result in the
defendant’s conviction, even though that case did not involve
“relevant conduct” because it was not “part of the same
course of conduct or common scheme or plan as the offense
of conviction.” The panel wrote that furthermore the United
States nowhere identifies evidence establishing—or identified
by the district court as the basis for the finding—that specific
challenged amounts of intended loss in the first case were, in
fact, actual or intended loss.
Noting the absence of any authority holding that tax
returns are “means of identification,” the panel held that the
district court improperly imposed an enhancement, U.S.S.G.
§ 2B1.1(b)(10) (2008), for using social security numbers of
others to produce personal tax returns.
The panel held that the district court properly applied a
sophisticated means enhancement, U.S.S.G. § 2B1.1(b)(9)(C)
(2008).
The panel wrote that because it vacated the conviction on
Count 33, U.S.S.G. § 2L2.2(c)(1)(A)’s cross-reference to
U.S.S.G. § 2X1.1 is inapplicable.
The panel held that the district court did not plainly err in
applying an “abuse of trust” enhancement under U.S.S.G.
4 UNITED STATES V. THOMSEN
§ 3B1.3, where persons in whose name the defendant filed
fraudulent tax returns by using personal information provided
to him in his employment as a tax preparer were subject to
emotional and other burdens as a result of his conduct.
The panel held that the district court did not err in
applying an enhancement for “obstruction of justice” under
U.S.S.G. § 3C1.1.
COUNSEL
Gail Ivens (argued), Deputy Federal Public Defender; Hilary
L. Potashner, Federal Public Defender; Office of the Federal
Public Defender, Los Angeles, California; for Defendant-
Appellant.
Joseph J.M. Orabona (argued), Assistant United States
Attorney; Peter Ko, Chief, Appellate Section, Criminal
Division; Laura E. Duffy, United States Attorney; United
States Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.
UNITED STATES V. THOMSEN 5
OPINION
BENNETT, Senior District Judge:
On July 14, 2010, Neil Thomsen, then a 67-year-old
retired engineer turned tax preparer, was charged, as the sole
defendant, with 34 federal offenses arising from a tax fraud
scheme. On December 8, 2011, a jury convicted him of 32 of
those offenses, after the prosecution withdrew two. He was
sentenced to fifteen years of imprisonment and ordered to pay
just over $500,000 in restitution. He now appeals his
conviction of two offenses, the restitution order, and the
calculation of his advisory guidelines sentencing range. We
affirm in part, reverse in part, and remand for further
proceedings.
I. INTRODUCTION
A. Charges And Conviction
The charges against Thomsen arose from an alleged tax
fraud scheme, beginning on a date unknown and continuing
through about April 15, 2009, that is, for the 2009 tax season
relating to the 2008 tax year. The Indictment alleged the
essence of the scheme was “that defendant THOMSEN
fraudulently used the personal identification, including names
and [social security numbers], of individuals, for whom he
prepared tax returns or who had their tax returns prepared by
an entity where defendant THOMSEN was employed, in
order to file false income tax returns with the IRS and to
obtain tax refunds and tax preparation fees to which he was
not entitled.” Indictment, ¶ 11. Two of the charges require
specific mention, as they are the only convictions that
Thomsen appeals: In Count 33, Thomsen was charged with
6 UNITED STATES V. THOMSEN
fraud and misuse of visas, permits, and other documents, in
violation of 18 U.S.C. § 1546(a), arising from his use, on or
about April 25, 2009, of a United States passport card bearing
his photograph, but the name and biographical information of
another person, on an application for an Earth Class Mail
account; and, in Count 34, he was charged with aggravated
identity theft, in violation of 18 U.S.C. § 1028A, during and
in relation to the felony passport card fraud offense.1
Thomsen’s trial began on November 29, 2011, and
continued on December 2, 6, 7, and 8. The prosecution
dismissed two mail fraud counts (Counts 5 and 6) before the
case was submitted. The jury convicted Thomsen of the other
32 counts. Thomsen obtained permission to proceed pro se,
thereafter, but with advisory counsel. On March 28, 2012,
Thomsen filed a pro se Motion For Judgment Of Acquittal,
as relevant here, on Counts 33 and 34. The court denied that
motion on April 17, 2013.
1
Thomsen was also charged with the following offenses: in Counts 1
through 6 of the Indictment with mail fraud, in violation of 18 U.S.C.
§ 1341, based on mailings in January and February of 2009 of preprinted
refund checks or debit cards for refunds from two Electronic Return
Originator (ERO) banks to Thomsen or his company; in Counts 7 through
16 with false, fictitious, and fraudulent claims, in violation of 18 U.S.C.
§ 287, based on the filing of fraudulent tax returns for 2008 in January and
February 2009; in Counts 17 through 24 with fraudulent use of the social
security numbers of other persons, in violation of 42 U.S.C. § 408(a)(8),
based on the filing of several of the same tax returns for 2008 at issue in
Counts 7 through 16, in January and February 2009; and in Counts 25
through 32 with aggravated identity theft, in violation of 18 U.S.C.
§ 1028A, again based on the filing of several of the same returns at issue
in prior counts, in January and February 2009.
UNITED STATES V. THOMSEN 7
B. Charges And Disposition In The Second Case
On May 31, 2011, well before Thomsen’s trial on the first
Indictment, Thomsen and three co-defendants were charged
in a separate Indictment, in a separate case, with conspiring,
from a date unknown through about May 2011, to defraud the
United States by obtaining, and aiding others to obtain, the
payment of false, fictitious, and fraudulent claims against the
United States, specifically, income tax refunds, in violation
of 18 U.S.C. § 286 and 18 U.S.C. § 2. The second Indictment
alleged overt acts in furtherance of this conspiracy between
December 30, 2009, and March 29, 2010.2 Thomsen’s three
co-defendants all eventually pleaded guilty to the fraudulent
claims conspiracy charge in the second case and were
sentenced to time served. They were also ordered to pay
restitution in the amount of $197,922.04, jointly and
severally. Thomsen neither pleaded guilty to nor was
convicted on any of the charges against him in the second
case. The second indictment was eventually dismissed as to
Thomsen after he was sentenced in the first case.
C. Sentencing
A Presentence Report (PSR) concerning Thomsen, filed
July 20, 2012, indicates that the probation officer used the
2
A Superseding Indictment in the second case, against Thomsen and
one other defendant, added an overt act in furtherance of the original
conspiracy on June 17, 2010; a new count of conspiracy to commit wire
fraud, in violation of 18 U.S.C. § 1349, from a date unknown through
about June 2012; fourteen new counts of aggravated identity theft, in
violation of 18 U.S.C. § 1028A, based on the filing of tax returns for 2009
in January and February 2010; another six new counts of aggravated
identity theft, in violation of 18 U.S.C. § 1028A, also based on the filing
of tax returns in January 2010; and forfeiture allegations.
8 UNITED STATES V. THOMSEN
November 1, 2011, Guidelines Manual. The PSR calculated
an advisory guidelines range of 135 to 168 months of
imprisonment, recommended a sentence approximately in the
middle of that range, and recommended restitution in the
amount of $317,337. At the first of three sentencing
hearings, on March 4, 2013,3 Thomsen recommended a
sentence of not more than 5 years (60 months), and the
prosecution recommended a sentence of 416 months. The
prosecution stated its intent to increase the amount of
restitution it was seeking, based on its desire to “roll that
second case as relevant conduct into the first case,” for a total
of over $500,000 in restitution. Not surprisingly, Thomsen
objected.
On April 17, 2013, the probation officer filed an
Addendum To Presentence Report (Addendum), addressing
the parties’ objections to the original PSR. Neither the
defendant nor the AUSA objected to the use of the 2011
Guideline Manual in the original PSR as the use of the wrong
year of the Manual, nor did the probation officer recognize
this crucial mistake. The Addendum did, however,
recalculate Thomsen’s advisory guidelines sentence. Those
calculations are significant to Thomsen’s appeal.
Specifically, for offenses in Group One (Counts 1–4,
7–16, and 17–24), the Addendum started with a base offense
level of 7, pursuant to U.S.S.G. § 2B1.1(a)(1); added 14
3
At the second sentencing hearing, on April 17, 2013, the district court
allowed Thomsen two hours to cross-examine the government’s witnesses
on their declarations and documents supporting the intended losses
claimed, although Thomsen contended he had only received some of the
documentation the evening before. At the third sentencing hearing, on
May 22, 2013, the court heard final arguments and imposed sentence.
UNITED STATES V. THOMSEN 9
levels for an intended loss between $400,000 and $1,000,000,
pursuant to U.S.S.G. § 2B1.1(b)(1)(H); added 6 levels for
more than 250 victims, pursuant to U.S.S.G.
§ 2B1.1(b)(2)(C); added 2 levels for “sophisticated means,”
pursuant to U.S.S.G. § 2B1.1(b)(10)(C); added 2 levels for
using victims’ social security numbers to produce other
means of identification, identified as personal tax returns,
pursuant to U.S.S.G. § 2B1.1(b)(11)(C)(i); added 2 levels for
abuse of a position of trust, because Thomsen was a tax
preparer to whom the personal information of others had been
entrusted, and he used that information for his own financial
gain, pursuant to U.S.S.G. § 3B1.3; and added 2 levels for
obstruction of justice, based on false testimony at trial,
pursuant to U.S.S.G. § 3C1.1. These calculations resulted in
an adjusted offense level of 35 for Group One.
For the offense in Group Two (Count 33), the Addendum
started with a base offense level of 7, pursuant to U.S.S.G.
§ 2L2.2(c)(1), using the cross-reference to U.S.S.G. § 2X1.1,
because Thomsen used a passport or visa in the commission
of a felony, with underlying substantive offenses of mail
fraud, false claims, and fraudulent use of a social security
card, making the corresponding offense level the one set out
in U.S.S.G. § 2B1.1. The Addendum then made the identical
adjustments to the offense level that it had made for the
Group One offenses. These calculations, again, resulted in an
adjusted offense level of 35.
The Addendum determined that the multiple count
adjustment, pursuant to U.S.S.G. § 3D1.4, required an
increase of two levels to 37. The Addendum then rejected
any adjustment for acceptance of responsibility, pursuant to
U.S.S.G. § 3E1.1(a). With a criminal history category of I,
these calculations resulted in an advisory guidelines range of
10 UNITED STATES V. THOMSEN
210 to 262 months of imprisonment. The Addendum
recommended a 72-month sentence (concurrent as to each
count), however, based on the 18 U.S.C. § 3553(a) factors.
The Addendum then applied a mandatory sentence of 2
years, consecutively, for each of Counts 25 through 32 and
34, which would have increased the sentence to 24 years (288
months). The Addendum recommended that the mandatory
2-year sentences on these counts run concurrently, however,
which raised the recommended sentence to only 96 months (8
years).
At Thomsen’s final sentencing hearing, the district judge
heard arguments from the parties, then imposed sentence.
More specifically, the district judge stated,
First, I’m going to deal with the objection
[sic]. There were various objections, lots of
objections that were filed by Mr. Thomsen. I
have a trial with a jury coming in in a short
while, so I don’t have really the time to go
through all of them. I’m simply going to
indicate that I have reviewed probation’s
response to those objections, and I adopt
probation’s views on every one of those
objections. I think there was one exception.
Let me double-check.
Well, I note that there was an objection. I
believe it was objection no. 16, which the
court will grant.
The district judge concluded that some objections (nos.
17–19) would have no effect on the sentence that he would
impose, then reiterated that he was “adopt[ing] probation’s
UNITED STATES V. THOMSEN 11
findings and recommendations in connection” with the
remaining objections.
Next, the district judge summarized and accepted the
sentencing calculations in the Addendum; described the
seriousness of the offense, and his reasons for rejecting both
the prosecution’s request for a sentence of 416 months and
the probation officer’s recommendation of 96 months; and
explained his application of the § 3553(a) factors.
Ultimately, the district judge imposed a sentence of 15 years
(180 months). The district judge also ordered restitution in
the amount of $515,257.75, with a credit of $61,545, and a
remaining balance of $453,712.75 to be paid to the IRS,
which included the loss in the second case against Thomsen
and three co-defendants. The district judge expressly ordered
“that the restitution in [the second case], in the amount of
$197,922.04, be made payable jointly and severally with the
other co-defendants in that case.”
D. Issues On Appeal
Thomsen filed timely notices of appeal. Thomsen’s
request to represent himself pro se on this appeal was denied,
and his current counsel was appointed. Thomsen has limited
his appeal to three issues: (1) the denial of his motion for
judgment of acquittal as to Counts 33 and 34; (2) the
restitution order; and (3) errors in sentencing, although this
last issue has numerous subissues. In his brief, Thomsen
states, “Aside from counts 33 and 34, he neither challenges
his conviction nor seeks to have it set aside.”
12 UNITED STATES V. THOMSEN
II. LEGAL ANALYSIS
A. Denial Of The Motion For Judgment Of Acquittal
Thomsen argues, first, that the district court should have
granted his motion for judgment of acquittal as to Counts 33
and 34, which charged a violation of 18 U.S.C. § 1546 and a
related aggravated identity theft offense, respectively.
Thomsen contends that § 1546 does not apply to a passport
card.
1. Applicable standards
We review de novo questions of statutory interpretation.
See, e.g., Fang Lin Ai v. United States, 809 F.3d 503, 506 (9th
Cir. 2015); United States v. Kowalczyk, 805 F.3d 847, 856
(9th Cir. 2015). We recently stated,
When interpreting a statute, we are guided
by the fundamental canons of statutory
construction and begin with the statutory text.
See BedRoc Ltd., LLC v. United States,
541 U.S. 176, 183, 124 S. Ct. 1587, 158
L. Ed. 2d 338 (2004). We interpret statutory
terms in accordance with their ordinary
meaning, unless the statute clearly expresses
an intention to the contrary. United States v.
Ron Pair Enters., Inc., 489 U.S. 235, 242, 109
S. Ct. 1026, 103 L. Ed. 2d 290 (1989). We must
“interpret [the] statut[e] as a whole, giving
effect to each word and making every effort
not to interpret a provision in a manner that
renders other provisions of the same statute
inconsistent, meaningless or superfluous.”
UNITED STATES V. THOMSEN 13
Boise Cascade Corp. v. U.S. E.P.A., 942 F.2d
1427, 1432 (9th Cir.1991). Additionally,
“[p]articular phrases must be construed in
light of the overall purpose and structure of
the whole statutory scheme.” United States v.
Lewis, 67 F.3d 225, 228–29 (9th Cir.1995).
United States v. Neal, 776 F.3d 645, 652 (9th Cir. 2015);
accord United States v. Leal-Felix, 665 F.3d 1037, 1042 (9th
Cir. 2011) (“Interpretation of a word or phrase [in a statute]
depends upon reading the whole statutory text, considering
the purpose and context of the statute, and consulting any
precedents or authorities that inform the analysis.” (citation
and internal quotation marks omitted)). Notwithstanding the
importance of the text itself, we “must avoid a literal
interpretation of the statute that produces an ‘absurd’ result.”
United States v. Shill, 740 F.3d 1347, 1353 (9th Cir. 2014)
(citing United States v. American Trucking Ass’ns, 310 U.S.
534, 543 (1940)); United States v. Thompson, 728 F.3d 1011,
1018 (9th Cir. 2013) (explaining that courts must not
“violate[] the precept that ‘[w]henever possible, “we interpret
statutes so as to preclude absurd results”’” (quoting United
States v. Cabaccang, 332 F.3d 622, 631 (9th Cir. 2003), with
citations omitted)).
Generally, we may turn to legislative history for guidance
only “[w]hen a statute is susceptible to two or more
meanings, . . . [b]ut ‘the plainer the language, the more
convincing contrary legislative history must be.’” Schroeder
v. United States, 793 F.3d 1080, 1085 (9th Cir. 2015)
(quoting Church of Scientology of Cal. v. U.S. Dep’t of
Justice, 612 F.2d 417, 422 (9th Cir. 1979)); United States v.
Crooked Arm, 788 F.3d 1065, 1073 (9th Cir. 2015) (“We may
consider legislative history if the statute is ambiguous or if
14 UNITED STATES V. THOMSEN
‘the legislative history clearly indicates that Congress meant
something other than what it said.’” (quoting Carson Harbor
Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir. 2001)
(en banc), in turn quoting Perlman v. Catapult Entm’t, Inc.,
165 F.3d 747, 753 (9th Cir. 1999)). This limitation
notwithstanding, we have also used legislative history to
confirm an interpretation guided by other canons. See, e.g.,
United States v. Hui Hsiung, 778 F.3d 738, 754 (9th Cir.
2014) (noting, “The legislative history supports this statutory
interpretation,” based on other canons).
2. Analysis
a. Krstic and Franklin
The parties have framed the statutory interpretation issue
in this case primarily in terms of whether we should follow
United States v. Krstic, 558 F.3d 1010 (9th Cir. 2009), or
United States v. Franklin, No. CR 07-967 PSG, 2011 WL
3424448 (C.D. Cal. Aug. 5, 2011), aff’d, 501 F. App’x 629
(9th Cir. 2012) (unpubl. mem.). We conclude that Krstic,
while relevant to some extent, is not controlling on the issues
presented here; that our decision on appeal in Franklin is not
controlling; and that we are not convinced by the district
UNITED STATES V. THOMSEN 15
court’s interpretation of the statute in Franklin.4 Thus, we
must embark on our own statutory interpretation.
Here, as in Krstic, we are presented with “a classic
question of statutory interpretation,” albeit a different one
than we addressed in Krstic, and this question requires us to
“begin . . . with the text of the statute.” 558 F.3d at 1013.
b. Section 1546(a)
The text of § 1546(a) provides, in pertinent part, as
follows:
4
Nowhere in Krstic did we hold that the only documents covered by
§ 1546(a) are “immigrant or nonimmigrant” documents, as Thomsen
contends. Indeed, that question was not even before us, because the
defendant in Krstic was an alien and the document in question was an
alien registration card. 558 F.3d at 1012–13. Furthermore, as we
repeatedly made clear, the question in Krstic was not whether the statute
applies only to “immigrant or nonimmigrant” documents, but whether
“such” in the second clause of the statute referred to “immigrant or
nonimmigrant” or “knowingly forges, counterfeits, alters, or falsely makes
any immigrant or nonimmigrant visa.” Id. at 1013–17.
In Franklin, we affirmed a United States citizen’s conviction pursuant
to § 1546(a) for possession of a United States passport bearing his
photograph, but the name and other identifying information of his cousin,
knowing that the passport had been procured by means of a false claim
and statement and by fraud and to have been unlawfully obtained, “for the
reasons enumerated by the district court.” 501 F. App’x at 630. Our
unpublished memorandum opinion in Franklin is not precedent. See 9th
Cir. R. 36-3. The district court in Franklin applied several canons of
statutory interpretation to reach its conclusion that a defendant could be
convicted under § 1546(a) for possession of a U.S. passport, but we do not
agree, for the reasons set out in the body of this opinion.
16 UNITED STATES V. THOMSEN
(a) Whoever knowingly forges, counterfeits,
alters, or falsely makes any immigrant or
nonimmigrant visa, permit, border crossing
card, alien registration receipt card, or other
document prescribed by statute or regulation
for entry into or as evidence of authorized
stay or employment in the United States, or
utters, uses, attempts to use, possesses,
obtains, accepts, or receives any such visa,
permit, border crossing card, alien registration
receipt card, or other document prescribed by
statute or regulation for entry into or as
evidence of authorized stay or employment in
the United States, knowing it to be forged,
counterfeited, altered, or falsely made, or to
have been procured by means of any false
claim or statement, or to have been otherwise
procured by fraud or unlawfully obtained
[shall be punished as specified.]
18 U.S.C. § 1546(a) (emphasis added). Thomsen’s argument
that the meaning of this statute is “plain” is belied by our
observation in Krstic that, “with this section, Congress has
achieved in a single 124-word sentence a level of confusion
it usually takes pages to create.” 558 F.3d at 1013. The
confusion, here, involves the scope of the general or catchall
“other document” clauses: Are the “other documents” limited
to immigration-related documents, or can they include a U.S.
passport or U.S. passport card?5
5
Thomsen initially argued that a critical dispute in this appeal was
whether a U.S. passport card is a passport, but the government conceded
that it is. We agree. A “passport card,” like a passport, is issued by the
Department of State to United States citizens for travel abroad and reentry
UNITED STATES V. THOMSEN 17
c. Plain meaning
i. “Whoever . . .”
Although the statute is confusing, we are not without
guidance. First, we observe that § 1546(a) plainly and
expressly applies to “whoever” engages in the proscribed
conduct, not just to “any alien.” Neal, 776 F.3d at 652. The
government argues this means that the statute can apply to
documents, such as U.S. passports, used by U.S. citizens, not
just to documents used by aliens. It is true that, some time
ago, in United States v. Knight, 514 F.2d 1286 (5th Cir.
1975), the court rejected the argument that what is now the
third paragraph of § 1546(a)6 could not be violated by an
American citizen. 514 F.2d at 1287. In Knight, the court
explained,
into the United States, albeit not for international air travel, but only when
entering the United States from Canada, Mexico, the Caribbean, and
Bermuda at land border crossings or sea ports-of-entry. See 71 Fed. Reg.
60928-32, 2006 WL 2948176 (Oct. 17, 2006).
6
Then, as now, the third paragraph of § 1546(a) provided, as follows:
Whoever, when applying for an immigrant or
nonimmigrant visa, permit, or other document required
for entry into the United States, or for admission to the
United States personates another, or falsely appears in
the name of a deceased individual, or evades or
attempts to evade the immigration laws by appearing
under an assumed or fictitious name without disclosing
his true identity, or sells or otherwise disposes of, or
offers to sell or otherwise dispose of, or utters, such
visa, permit, or other document, to any person not
authorized by law to receive such document [shall be
punished as provided].
18 UNITED STATES V. THOMSEN
We agree with the district court, that the word
“whoever” means exactly that. Though Knight
is correct in his history, the section in question
is no longer within Title 8, but is now in Title
18. Cf. 8 U.S.C.A., § 1325 on false or
misleading representation by aliens which
begins with the words “any alien”.
Id.
The government’s argument that “whoever” demonstrates
that § 1546 applies to U.S. passports, because it applies to
American citizens, goes too far. Rather, we conclude that the
use of “whoever” in § 1546(a) identifies only the status of the
perpetrator, not the nature of the documents involved in the
proscribed conduct. For example, looking only to the plain
text of § 1546(a), it is clear that a United States citizen could
violate this provision by using an alien registration receipt
card, which is an immigration-related document, knowing
that it was forged to bear his or her name, perhaps to disguise
his or her identity as a fugitive. See 18 U.S.C. § 1546(a)
(providing for the punishment of “whoever . . . uses . . . [an]
alien registration receipt card . . . knowing it to be forged”).
Thus, the fact that the statute applies prohibitions on the
conduct of United States citizens does not mean that the
documents to which it applies necessarily include documents
that are not immigration-related, such as U.S. passports
issued to U.S. citizens.
ii. “Immigrant and nonimmigrant . . .”
Continuing our examination of the plain text of the
statute, we note that the words “immigrant and
nonimmigrant” precede the list of documents to which
UNITED STATES V. THOMSEN 19
§ 1546(a) applies. If “immigrant and nonimmigrant” modify
all of the listed documents, then the scope of the statute
would seem to be restricted to immigration-related
documents. We agree with the district court in Franklin that
the plain text of § 1546(a) does not preclude a reading of the
adjectives “immigrant and nonimmigrant” as modifying all
of the listed documents. 2011 WL 3424448 at *5. Under that
reading, the provision would only apply to documents that are
immigration-related. Id.
That is not the end of the inquiry, however. Rather,
reading the whole statutory text, considering its purpose and
context, see Leal-Felix, 665 F.3d at 1042, and, most
importantly, “avoid[ing] a literal interpretation of the statute
that produces an ‘absurd’ result,” Shill, 740 F.3d at 1353;
Thompson, 728 F.3d at 1018, we conclude that “immigrant
and nonimmigrant” cannot be read to apply to all of the listed
documents. As the United States points out, a “nonimmigrant
alien registration receipt card” does not exist, and 8 U.S.C.
§ 1101(a)(6) defines “border crossing identification card,” not
an “immigrant border crossing identification card” or a
“nonimmigrant border crossing identification card.”
Furthermore, “immigrant visa” and “nonimmigrant visa” are
defined in the 1952 legislation that also amended § 1546(a)
to include “immigrant and nonimmigrant” immediately
before “visa,” 66 Stat. 163, 169, 275 (1952), codified at
8 U.S.C. § 1101(a)(16).7 Thus, a plain reading of the text, in
light of the overall purpose and structure of the whole
statutory scheme, Neal, 776 F.3d at 652; Leal-Felix, 665 F.3d
7
The words “immigrant” and “nonimmigrant” describe different classes
of aliens, not United States citizens. 8 U.S.C. § 1101(a)(15).
20 UNITED STATES V. THOMSEN
at 1042, is that “immigrant and nonimmigrant,” as used in
§ 1546(a), modify only “visa.”8
As we explain, below, the government goes too far,
however, when it argues that, because “immigrant and
nonimmigrant” modify only “visa,” the “other document[s]”
to which § 1546(a) applies are not just immigration-related
documents, but include U.S. passports.
iii. Omission of “passport” from the list
Looking further at the plain text of the statute, see Neal,
776 F.3d at 652, we find that the words “passport” and
“passport card” are conspicuous by their absence from
§ 1546(a). Congress could easily have included “passport” in
the list in § 1546, if it had intended § 1546 to apply to
“passports.” Indeed, § 1546(a) is the only statute in the group
of statutes (18 U.S.C. §§ 1541–1547) relating to “passports
and visas” that does not contain the word “passport.” This
omission from the statute’s plain text—which we must
consider intentional—suggests that “passports” do not fall
within the scope of the statute. In contrast, § 1543 explicitly
8
In other words, reference to the legislative history—here, the 1952 act
amending § 1546(a)—would have eliminated any ambiguity about
whether “immigrant and nonimmigrant” were intended to modify more
than “visa”—they were not. See Schroeder, 793 F.3d at 1085. At the very
least, this legislative history would have confirmed a plain reading of
“immigrant and nonimmigrant” as modifying only “visa.” Hui Hsiung,
778 F.3d at 754.
UNITED STATES V. THOMSEN 21
prohibits some of the same kinds of conduct involving
“passports” that § 1546 prohibits as to the listed documents.9
It is true, as the government argues, that the prosecution
has the discretion to decide what charge to file when more
than one statute prohibits the conduct in question. United
States v. Batchelder, 442 U.S. 114, 123–24 (1979) (“This
Court has long recognized that when an act violates more
than one criminal statute, the Government may prosecute
under either so long as it does not discriminate against any
class of defendants.”); accord United States v. Maes,
546 F.3d 1066, 1068 (9th Cir. 2008). That argument strikes
9
Section 1543 provides as follows:
Whoever falsely makes, forges, counterfeits, mutilates,
or alters any passport or instrument purporting to be a
passport, with intent that the same may be used; or
Whoever willfully and knowingly uses, or attempts to
use, or furnishes to another for use any such false,
forged, counterfeited, mutilated, or altered passport or
instrument purporting to be a passport, or any passport
validly issued which has become void by the
occurrence of any condition therein prescribed
invalidating the same [shall be punished as provided].
18 U.S.C. § 1543 (emphasis added). Section 1546(a) applies to one who
“utters, . . . possesses, obtains, accepts, or receives” an identified
document, which § 1543 does not. Section 1543 applies to “furnish[ing]”
a document identified, but § 1546(a) does not. We need not decide
whether “furnishing” and “uttering” proscribe similar or equivalent
conduct; we simply note the differences in the terms used. Here, Thomsen
was charged in Count 33 with “knowingly us[ing], possess[ing] and
utter[ing]” a document to which § 1546(a) applies. Thus, in Thomsen’s
case, the two statutes would overlap as to the “us[ing]” of a passport, if
both apply to passports.
22 UNITED STATES V. THOMSEN
us as beside the point, however, in the context of a group of
related statutes, where it would be particularly odd to
construe two provisions to state duplicate prohibitions on
some of the same conduct involving some of the same
documents.
Rather, in this context, the difference in language between
the provisions strongly suggests that the purpose of the two
statutes was to address different kinds of documents,
“passports” in § 1543 and immigration-related documents in
§ 1546. See White v. Lambert, 370 F.3d 1002, 1011 (9th Cir.
2004) (“It is axiomatic that when Congress uses different text
in ‘adjacent’ statutes it intends that the different terms carry
a different meaning.”), overruled on other grounds by
Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc);
Crawford v. Burke, 195 U.S. 176, 190 (1904) (explaining that
“a change in phraseology creates a presumption of a change
in intent” and that “Congress would not have used such
different language [in two statutes] without thereby intending
a change of meaning”). In other words, the omission of
“passports” from § 1546(a) and the use of different terms in
that provision than are found in related, adjacent provisions
lead us back to the conclusion that § 1546(a) does not apply
to U.S. passports. Other canons of interpretation confirm this
conclusion.
d. Other canons of interpretation
i. Ejusdem generis
As the Supreme Court has explained,
[The] canon . . . ejusdem generis counsels:
“Where general words follow specific words
UNITED STATES V. THOMSEN 23
in a statutory enumeration, the general words
are [usually] construed to embrace only
objects similar in nature to those objects
enumerated by the preceding specific words.”
Washington State Dept. of Social and Health
Servs. v. Guardianship Estate of Keffeler,
537 U.S. 371, 384, 123 S. Ct. 1017, 154
L. Ed. 2d 972 (2003) (internal quotation marks
omitted).
Yates v. United States, ___ U.S. ___, ___, 135 S. Ct. 1074,
1086 (2015).10 In Franklin, on which the government relies,
the district court applied the canon ejusdem generis to
conclude that “it [is] logical, but not necessary, to conclude
that the general ‘other document’ term [in § 1546(a)] should
not be read broadly to include plane tickets (which might
assist in physically ‘entering’ the country), but should instead
be limited to immigration documents of the type that an alien
might use to validly enter, stay and work in the United
States.” 2011 WL 3424448 at *5 (emphasis in the original).
We agree.
The government’s argument that § 1546(a) applies to
more than immigration-related documents might be more
persuasive if § 1546(a) referred simply to “document[s],”
rather than to “other documents,” that are “prescribed by
statute or regulation for entry into or as evidence of
10
Applying this canon in Yates, the Supreme Court concluded, “Had
Congress intended ‘tangible object’ in § 1519 to be interpreted so
generically as to capture physical objects as dissimilar as documents and
fish, Congress would have had no reason to refer specifically to ‘record’
or ‘document.’ The Government’s unbounded reading of ‘tangible object’
would render those words misleading surplusage.” ___ U.S. at ___,
135 S. Ct. at 1087.
24 UNITED STATES V. THOMSEN
authorized stay or employment in the United States.” Here,
the use of “other” plainly suggests that the “document[s]” are
documents like the ones preceding them in the list, that is,
immigration-related documents. Yates, ___ U.S. at ___.
135 S. Ct. at 1086.
Although the district court in Franklin found reasons not
to settle on the interpretation suggested by application of
ejusdem generis, we do, in light of still other canons of
interpretation.
ii. Interpretation in the context of its corpus juris
The district court in Franklin applied the principle that
courts must not interpret a statute in isolation, but must
consider “the context of the corpus juris of which they are a
part.” Franklin, 2011 WL 3424448 at *5 (quoting Branch v.
Smith, 538 U.S. 254, 281 (2003)); accord Leal-Felix,
665 F.3d at 1042. We agree that resort to this principle is
also appropriate, but we disagree with the interpretation based
on this principle reached by the district court in Franklin.
The district court in Franklin concluded that the principle
of considering the statute’s context required “reference to
other aspects of the Immigration Reform and Control Act of
1986 (the ‘IRCA’).” Franklin, 2011 WL 3424448 at *5.
Again, we agree. The district court in Franklin then
reasoned, as follows:
Under IRCA § 101, 8 U.S.C. § 1324a, a
United States passport is “prescribed by
statute” as “evidence of authorized ...
employment.” 8 U.S.C. § 1324a(b)(1)(B)(i).
Under IRCA’s implementing regulations,
UNITED STATES V. THOMSEN 25
a United States passport is also “prescribed
by ... regulation” as “evidence of
authorized ... employment.” 8 C.F.R.
§ 274a.2(b)(1)(v)(A)(1). Thus, after giving
context to 18 U.S.C. § 1546(a) by examining
the IRCA’s relevant provisions, and after
considering other cases addressing similar
questions, the Court concludes that a United
States passport is within § 1546(a)’s reach as
an “other document prescribed by [both]
statute [and] regulation ... as evidence of
authorized ... employment.” Though the Court
superficially agrees with Franklin that
§ 1546(a) appears to apply only to alien-
related documents, no cannon [sic] of
statutory construction can undo what
Congress clearly did in the IRCA. For if
courts are instructed to look to IRCA § 101 to
determine the scope of § 1546, as so held by
the Eighth and Ninth Circuits, then Congress
has specifically spoken as to the types of
“other documents” covered by § 1546 and the
analysis stops with the text of the law.
Franklin, 2011 WL 3424448 at *7 (footnote omitted). It is
here that we believe the district court in Franklin went astray.
Even though “passports” are documents prescribed by
§ 1324a(b)(1)(B)(i) as evidence of authorized employment in
the United States, it does not necessarily follow that
§ 1546(a) applies to passports. We note that immigration-
related documents are also prescribed by § 1324a(b)(1) as
establishing both employment authorization and identity,
specifically, a “resident alien card, alien registration
26 UNITED STATES V. THOMSEN
card”—which are listed in § 1546(a)—“or other document
designated by the Attorney General” meeting certain
requirements. 8 U.S.C. § 1324(b)(1)(B)(ii) (emphasis added).
Immigration-related documents are also found among “other
documentation evidencing authorization of employment in
the United States which the Attorney General finds, by
regulation, to be acceptable for purposes of this section.”
8 U.S.C. § 1324a(b)(1)(C)(ii) (emphasis added); see, e.g.,
8 C.F.R. § 274a.12.
In short, where the canon ejusdem generis leads to the
conclusion that the general “other documents” clause is
limited to immigration-related documents, the relevant
context of the corpus juris of which § 1546(a) is a part
includes the provisions of § 1324a(1)(b) referring to
immigration-related documents. Furthermore, to the extent
that § 1546 echoes, not merely references, language from
§ 1324a(b)(1), it echoes the provisions specifically describing
immigration-related documents, 8 U.S.C. § 1324a(b)(1)(B)(ii)
and 8 U.S.C. § 1324a(b)(1)(C)(ii), not the provision
identifying “passports,” 8 U.S.C. § 1324a(b)(1)(B)(i).
Reference to the IRCA does not require an interpretation of
§ 1546(a) as applying to U.S. passports.
e. Summary
We hold that § 1546(a) does not apply to U.S. passports
or U.S. passport cards. Thus, the district court erred by
denying Thomsen’s motion for judgment of acquittal as to
Counts 33 and 34.11
11
Therefore, we do not reach Thomsen’s argument that the rule of lenity
applies. “The rule of lenity. . . applies only when, after consulting
traditional canons of statutory construction, we are left with an ambiguous
UNITED STATES V. THOMSEN 27
B. Restitution
Thomsen next contends that the district court improperly
included amounts from the dismissed case and made other
errors in determining the amount of restitution. This issue
has both legal and factual aspects.
1. Standard of review
We have explained,
We review a restitution order for “an abuse of
discretion, provided that it is within the
bounds of the statutory framework.” United
States v. Gordon, 393 F.3d 1044, 1051 (9th
Cir.2004) (internal quotation marks omitted).
“Factual findings supporting an order of
restitution are reviewed for clear error. The
legality of [the] order is reviewed de novo.”
statute.” United States v. Shabani, 513 U.S. 10, 17 (1994); Krstic,
558 F.3d at 1017 n.9. Here, the analysis, above, shows that we are not left
with an ambiguous statute, after correct application of the pertinent canons
of statutory construction. We acknowledge, however, that perhaps
ambiguity, like plain meaning and beauty, “is sometimes in the eye of the
beholder.” Florida Power & Light Co. v. United States Nuclear
Regulatory Comm’n, 470 U.S. 729, 737 (1985) (“Yet plain meaning, like
beauty, is sometimes in the eye of the beholder.”); Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 572 (2005) (Stevens, J., joined by
Breyer, J., dissenting) (“Because ambiguity is apparently in the eye of the
beholder, I remain convinced that it is unwise to treat the ambiguity vel
non of a statute as determinative of whether legislative history is
consulted.”). Any holding that the statute is ambiguous as to its
application to U.S. passports or U.S. passport cards would invoke the rule
of lenity and, likewise, require Thomsen’s acquittal of Counts 33 and 34.
28 UNITED STATES V. THOMSEN
Id. (internal quotation marks and ellipsis
omitted).
United States v. Inouye, ___ F.3d ___, ___, 2016 WL
2641109, at *2 (9th Cir. May 10, 2016). Thus, the proper
scope of the conduct on which restitution can be based is a
legal question; what conduct by Thomsen falls within that
scope is a question of fact.
2. Legality of the restitution order
a. Applicable standards
As to the legal question, it was once the case that a
defendant could be required to pay restitution only to the
victims of the offenses of which he was convicted, as
Thomsen now argues. See Hughey v. United States, 495 U.S.
411, 422 (1990) (“Petitioner pleaded guilty only to the charge
that he fraudulently used the credit card of Hershey Godfrey.
Because the restitution order encompassed losses stemming
from alleged fraudulent uses of cards issued to persons other
than Godfrey, such portions of the order are invalid.”).
Subsequently, however,
The portion of Hughey that limited restitution
to those losses caused by the actual offense of
conviction was abrogated by the 1990
amendments to section 3663. Section 3663
now provides that if the offense of conviction
involves a scheme, conspiracy, or pattern of
conduct, restitution may include all losses
caused during the course of that scheme,
conspiracy or pattern. See 18 U.S.C.
§ 3663(a)(2) (Supp. V 1999). The Hughey
UNITED STATES V. THOMSEN 29
rule still applies, however, where the
defendant has not been convicted of an
offense having a conspiracy, scheme or
pattern of conduct as an element. United
States v. Lawrence, 189 F.3d 838, 846 (9th
Cir.1999). In addition, even under section
3663(a)(2)’s current expanded definition, a
victim must be “directly harmed by the
defendant’s criminal conduct.” 18 U.S.C.
§ 3663(a)(2) (Supp. V 1999).
United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 927
n.10 (9th Cir. 2001); accord United States v. Brock-Davis,
504 F.3d 991, 998–99 (9th Cir. 2007) (also recognizing the
amendments abrogating Hughey also abrogated circuit case
law that restitution must be limited to the loss attributable to
the specific conduct underlying the conviction).12
12
Section 3663(a)(2) provides, in pertinent part, as follows:
(2) For the purposes of this section, the term “victim”
means a person directly and proximately harmed as a
result of the commission of an offense for which
restitution may be ordered including, in the case of an
offense that involves as an element a scheme,
conspiracy, or pattern of criminal activity, any person
directly harmed by the defendant’s criminal conduct in
the course of the scheme, conspiracy, or pattern.
18 U.S.C. § 3663(a)(2) (emphasis added). The pertinent parts of
§ 3663(a)(2) and § 3663A(a)(2), the statute applicable here, are identical,
as will be seen from the quotation of the latter statute in the body.
30 UNITED STATES V. THOMSEN
We have explained,
The Mandatory Victims Restitution Act
(“MVRA”), 18 U.S.C. § 3663A, requires a
district court to “order a defendant to make
restitution to a victim of certain specified
offenses.” United States v. Anderson,
741 F.3d 938, 951 (9th Cir.2013) (citation
omitted). The amount of restitution is limited
to the victim’s “actual losses” that are a direct
and proximate result of the defendant’s
offense. United States v. Hunter, 618 F.3d
1062, 1064 (9th Cir.2010).
United States v. Eyraud, 809 F.3d 462, 467 (9th Cir. 2015).
Restitution is mandatory, pursuant to § 3663A(a)(1) for “an
offense described in subsection (c),” which includes “an
offense against property under this title, . . . including any
offense committed by fraud or deceit.” 18 U.S.C.
§ 3663A(c)(1)(A)(ii).
Restitution is mandatory in this case, because we have
recognized that § 3663A(c)(1)(A)(ii) applies to mail fraud, as
prohibited by 18 U.S.C. § 1341, United States v. Grice,
319 F.3d 1174, 1177 (9th Cir. 2003), and Thomsen was
convicted of several mail fraud offenses (Counts 1 through 4).
Similarly, other courts have held that, because they are
offenses under Title 18, convictions on charges of false
claims for tax refunds, in violation of 18 U.S.C. § 287, like
Thomsen’s convictions on Counts 7 through 16, and
convictions on charges of identity theft, in violation of
18 U.S.C. § 1028A, like Thomsen’s convictions on Counts 25
through 32 and 34, also fall under § 3663A(c)(1)(A)(ii). See
United States v. Cohan, 798 F.3d 84, 89 (2d Cir. 2015)
UNITED STATES V. THOMSEN 31
(§ 1028A); United States v. Blanchard, 616 F.3d 562, 577
(6th Cir. 2010) (§ 287).
Under the mandatory restitution provision,
(2) For the purposes of this section, the term
“victim” means a person directly and
proximately harmed as a result of the
commission of an offense for which
restitution may be ordered including, in the
case of an offense that involves as an element
a scheme, conspiracy, or pattern of criminal
activity, any person directly harmed by the
defendant’s criminal conduct in the course of
the scheme, conspiracy, or pattern.
18 U.S.C. § 3663A(a)(2) (emphasis added). For a fraud
offense, the district court is required to order restitution in the
amount of the victim’s actual loss. 18 U.S.C.
§§ 3663A(c)(1)(A)(ii), 3664(f)(1)(A).
More specifically, in the case of a conviction for a crime
or crimes that require proof of a “scheme, conspiracy, or
pattern of criminal activity,” such as mail fraud,13
13
The elements of mail fraud are the following: “(1) proof of a scheme
to defraud, (2) using the mails . . . to further the fraudulent scheme, and
(3) specific intent to defraud.” United States v. French, 748 F.3d 922, 935
(9th Cir. 2014) (citing 18 U.S.C. § 1341). The other Title 18 offenses of
which Thomsen was convicted do not have a “scheme, pattern, or
conspiracy” element. See, e.g., United States v. Atalig, 502 F.3d 1063,
1067 (9th Cir. 2007) (elements of false claims under § 287); United States
v. Osuna-Alvarez, 788 F.3d 1183, 1185 (9th Cir. 2015) (elements of
aggravated identity theft under § 1028A). In a conspiracy case, restitution
may be ordered against each defendant to the extent that the victim’s
32 UNITED STATES V. THOMSEN
restitution may be ordered for all persons
directly harmed by the entire scheme. Such
restitution is not limited to harm caused by the
particular counts of conviction (as it would be
absent the scheme element). See United States
v. Booth, 309 F.3d 566, 575–76 (9th
Cir.2002). In this context, a restitution order
may be based on related but uncharged
conduct that is part of a fraud scheme. See
United States v. Grice, 319 F.3d 1174, 1177
(9th Cir.2003) (affirming restitution of loss
from uncharged conduct beginning prior to
the effective date of the MVRA). The harm to
the victim must, however, be closely related to
the scheme, rather than tangentially linked.
United States v. Riley, 143 F.3d 1289, 1292
(9th Cir.1998) (quoting United States v.
Kones, 77 F.3d 66, 70 (3rd Cir.1996)); see
also [United States v.] Gamma Tech Indus.,
265 F.3d [917,] 928 [(9th Cir. 2001)] (“the
loss cannot be too far removed from” the
“conduct underlying the offense of
conviction”).
In re Her Majesty the Queen in Right of Canada, 785 F.3d
1273, 1276 (9th Cir. 2015) (emphasis added). “In other
words, ‘when the crime of conviction includes a scheme,
conspiracy, or pattern of criminal activity as an element of the
losses were reasonably foreseeable to that defendant. United States v.
Riley, 335 F.3d 919, 932 (9th Cir. 2003). Thomsen was not charged with
or convicted of a conspiracy offense in the first case, however. Although
a conspiracy offense was charged in the second case, Thomsen was not
convicted of any offenses in the second case.
UNITED STATES V. THOMSEN 33
offense, . . . the restitution order [may] include acts of related
conduct for which the defendant was not convicted.’” Brock-
Davis, 504 F.3d at 999 (quoting United States v. Lawrence,
189 F.3d 838, 846–47 (9th Cir. 1997), with emphasis added);
accord Grice, 319 F.3d at 1178 (“[P]ermitting restitution
under the MVRA for related, but uncharged mail fraud
conduct occurring prior to and continuing past the MVRA’s
enactment is consistent with the text of the statute and related
authority.” (emphasis added)).
b. Analysis
Here, the district court did not err, as a matter of law, in
concluding that awarding restitution for related conduct
beyond the conduct for which Thomsen was specifically
convicted was within statutory bounds. Inouye, ___ F.3d at
___, 2016 WL 2641109 at *2. This is so, because
(1) Thomsen was convicted of mail fraud offenses, which
required proof of a “scheme” element, see French, 748 F.3d
at 935, and (2) pursuant to § 3663A(a)(2), restitution for such
offenses is not limited to harm caused by the particular counts
of conviction, but may be based on related, uncharged
conduct that is part of a fraud scheme, see In re Her Majesty,
785 F.3d at 1276; Brock-Davis, 504 F.3d at 999; Grice,
319 F.3d at 1178.
3. The disputed factual question
a. Applicable standards
The disputed factual question, here, is whether the district
court properly found that all of the losses alleged by the
United States as the basis for restitution, including losses
from conduct charged only in the second case, were losses
34 UNITED STATES V. THOMSEN
from “related conduct.” See In re Her Majesty, 785 F.3d at
1276.14 “[T]he government [must] prove[] the amount of loss
and causation by a preponderance of the evidence.” Eyraud,
809 F.3d at 467. Thomsen’s challenge to those factual
findings stands on much firmer ground than his challenge to
the legal scope of restitution.
To prove the necessary close relationship to the scheme
of conviction, it is not enough to show another fraud against
the victim that had “aspects in common with the scheme” of
conviction, or even to show that both frauds were “built upon
the same central falsity.” In re Her Majesty, 785 F.3d at
1276. Rather, there must be a “causal” link between the two,
and that link may be lacking where the fraud against the
victim and the fraud scheme of conviction “were
accomplished by different means, had different victims, and
took place primarily in different [locations].” Id. at 1276–77.
To put it another way, the fraud against the victim must not
be “linked too tangentially to be part of the same ‘scheme,
conspiracy, or pattern of criminal activity.’” Id. at 1277
(quoting § 3663A(a)(2)).
Applying these standards, we rejected Canada’s
restitution claim based on the biofuel subsidy fraud
committed by the owners of a Canadian plant, while awarding
14
The key question is not whether the United States proved that various
amounts of loss were caused by Thomsen’s conduct, including his conduct
in the second case, as the United States would have it. One might agree
with the United States and the district court that the United States proved
by a preponderance of the evidence, or even beyond a reasonable doubt,
that all of the losses at issue were caused by Thomsen’s conduct charged
in either the first or the second case. The question of the adequacy of
proof of particular losses, however, is only relevant if those losses arose
from conduct sufficiently closely “related” to the scheme of conviction.
UNITED STATES V. THOMSEN 35
restitution to the United States for fraudulent use of biodiesel
credits, explaining the schemes were parallel, but different:
The schemes [one involving Canada and
one leading to conviction], however, were
different. The indictment charged, and the
facts supporting the guilty plea described, a
scheme revolving around the false generation
and use of United States biodiesel credits
known as renewable identification numbers
(“RINs”). It appears that the RIN fraud in the
United States and the biofuel subsidy fraud in
Canada proceeded on parallel tracks. But they
were not causally linked. The record does not
reflect that either country considered the
other’s renewable energy program in
calculating its own incentives. The schemes
were accomplished by different means, had
different victims, and took place primarily in
different countries. They were linked too
tangentially to be part of the same “scheme,
conspiracy, or pattern of criminal activity.”
18 U.S.C. § 3663A(a)(2).
In re Her Majesty, 785 F.3d at 1276–77 (footnote omitted).
In contrast, the necessary “relatedness” was shown in
Brock-Davis, which involved a conviction for conspiracy to
manufacture methamphetamine in Missoula, Montana.
504 F.3d at 998. The defendant challenged the award of
restitution for damage to and clean up of a motel room in
Kalispell, Montana, even though there was, at least arguably,
no proven methamphetamine manufacturing in that motel
room, and nothing in the indictment or the plea hearing
36 UNITED STATES V. THOMSEN
mentioned Kalispell, that motel, or its owner. Id. We
explained why the loss for the Kalispell motel room was
sufficiently “related” to the conspiracy of conviction to
permit a restitution award, as follows:
Even were the law of restitution not more
expansive for convictions for conspiracy than
for other crimes, the district court would not
have committed clear error in finding that the
same conspiracy was at issue in Missoula and
Kalispell. The evidence disclosed the
existence of two partial meth labs (in the first
hotel room [in Missoula] and in Room 107 [of
the Kalispell motel]) being created by Brock-
Davis and Willingham at the same time—with
one room containing the microwave and the
other containing the microwave box—and
items in the trunk of the car in which Brock-
Davis and Willingham were apprehended that
would have supplemented either lab (or even
have constituted the lab itself) at the motels
Brock-Davis and Willingham chose. In
addition, Willingham pointed the police to the
Aero Inn in Kalispell after his arrest, and
Brock-Davis had checked into that
room—which contained evidence consistent
with the existence of a meth lab, as even [a]
defense witness . . . acknowledged.
Brock-Davis, 504 F.3d at 999 (emphasis added).
Similarly, in Grice, which involved mail fraud
convictions, we held that losses from before the date of the
defendant’s first mail fraud offense were properly included in
UNITED STATES V. THOMSEN 37
the restitution order. 319 F.3d at 1178. In Grice, the
defendant directed delivery to herself of dividend checks
payable to her son by filing change-of-address forms, and she
cashed those checks even after her son’s eighteenth birthday
when she was no longer entitled to do so. Id. at 1176, 1178.
Her first mail fraud offense, however, was four years after her
son turned eighteen, and she argued that, prior to that, the
checks just kept coming to her after it became illegal to cash
them, so they were not part of the mail fraud scheme. Id. at
1178. We disagreed:
The checks Grice cashed illegally were
delivered to her address solely because of the
eleven change of address forms she filed prior
to William’s eighteenth birthday. Her modus
operandi was identical throughout the entire
period of the scheme she devised. When CIRI
sent William a letter informing William of his
adult status in the corporation, Grice failed to
inform CIRI that William was not living at
her address. Grice knew CIRI would continue
to send William’s checks to her address where
she could forge and cash them, knowing it
was illegal to do so. By filing eleven change
of address forms and then failing to inform
CIRI that William no longer lived at her
address, Grice “made use of or caused the use
of the mails” in furtherance of her scheme.
[United States v.] Lo, 231 F.3d [471,] 475
[(9th Cir. 2000)]. Accordingly, we conclude
that Grice’s scheme extended back to October
38 UNITED STATES V. THOMSEN
1988 and the district court properly included
the disputed $7,535.07 in its restitution order.
Grice, 504 F.3d at 1178–79.
b. Analysis
Here, as Thomsen points out, the United States repeatedly
refers to his “multi-year fraudulent scheme” in its brief, but
nowhere identifies evidence establishing—or identified by the
district court as the basis for a finding—that the scheme
charged in the second case, in which Thomsen was not
convicted, was, in fact, the same scheme as, or was related to,
the scheme charged in the first case, in which Thomsen was
convicted. At most, the United States has shown that both
schemes were designed to obtain tax refunds by fraud and
that Thomsen was involved in both of them. That is not
enough. See In re Her Majesty, 785 F.3d at 1276 (sufficient
“relatedness” is not shown simply from the fact that the
claimed loss had “aspects in common with the scheme” of
conviction, or even that both had been “built upon the same
central falsity”). As in In re Her Majesty, the losses in the
first and second cases against Thomsen “were accomplished
by different means, had different victims, and took place
primarily in different [locations],” id. at 1276–77; and cf.
Grice, 504 F.3d at 1178–79 (finding that the fraud for which
restitution was sought was conducted by the same modus
operandi), and, here, also during different time frames, cf.
Brock-Davis, 504 F.3d at 999 (conduct not mentioned in the
indictment was related, for purposes of restitution, because it
was not only of the same kind and involved the same
participants, but was at the same time).
UNITED STATES V. THOMSEN 39
Specifically, the frauds in the first case against Thomsen
were accomplished by Thomsen himself, acting alone,
apparently all in California, using the mails, while the frauds
charged in the second case involved different victims, were
accomplished by wire fraud, and involved at least three other
co-defendants working in multiple states. As originally
charged, the second case did not involve any of the same
offenses as those charged in the first case. There is
undeniably some relationship between a § 286 offense of
conspiracy to obtain payment of false claims, as charged in
the second case, and the substantive § 287 offense of actually
making a false claim, as charged in the first case.
Nevertheless, the difference between a conspiracy, involving
multiple co-defendants to accomplish the fraud, and a
substantive offense, involving a single person from start to
finish, actually highlights the difference in the modus
operandi of the false claim offenses in the two cases. Cf.
Grice, 504 F.3d at 1178–79 (noting the use of an identical
modus operandi to commit the offenses for which restitution
was sought and the offense of conviction). The allegation
that the conspiracies in the second case began on “unknown”
dates does nothing to tie the earlier and later offenses together
in the absence of any evidence of actual temporal overlap.
Cf. Brock-Davis, 504 F.3d at 999 (conduct not mentioned in
the indictment was related, for purposes of restitution,
because it was shown by the evidence to be at the same
time).15
15
The government’s contention that tax fraud is necessarily seasonal or
cyclical does not convince us that the lack of temporal overlap should be
ignored, especially where the personnel (other than Thomsen) and the
modus operandi involved did not overlap.
40 UNITED STATES V. THOMSEN
The addition of charges of aggravated identity theft, in
violation of 18 U.S.C. § 1028A, in the Superseding
Indictment in the second case, based on filing of tax returns,
which are similar to such charges in the first case, does not
create sufficient “linkage” between the earlier and later
conduct. Section 1028A offenses do not involve proof of a
“scheme” as an element, so that restitution based on those
offenses would be appropriate only for conduct resulting in
convictions. See Gamma Tech Indus., Inc., 265 F.3d at 927
n.10. Finally, the time frame and the dates of the overt acts
in furtherance of the original conspiracy charged in the
second case (and, indeed, the overt acts in furtherance of the
additional wire fraud conspiracy added later) do not involve
any temporal overlap at all with the dates of the offenses
charged in the first case. Compare Brock-Davis, 504 F.3d at
999 (conduct not mentioned in the indictment was related, for
purposes of restitution, because it was not only of the same
kind and involved the same participants, but was at the same
time).
In short, the district court clearly erred in holding that the
conduct at issue in the second case was sufficiently “related”
to the conduct at issue in the first case to warrant inclusion of
losses in the second case in the order for restitution pursuant
to 18 U.S.C. § 3663A(a)(2). See Inouye, ___ F.3d at ___,
2016 WL 2641109 at *2 (factual findings for restitution are
reviewed for clear error). Consequently, although ordering
restitution for related conduct that did not result in a
conviction was within “statutory bounds,” the order for
restitution, here, was an abuse of discretion. Id.16
16
In briefing on the asserted sentencing errors, Thomsen challenges the
inclusion of certain amounts in the restitution order, as without evidentiary
basis, including amounts that were shown to be related to the scheme of
UNITED STATES V. THOMSEN 41
C. Sentencing Errors
Thomsen argues the district court erred in calculating
Thomsen’s advisory guidelines sentence. He asserts the
following alleged sentencing errors: (1) use of the wrong
Guidelines Manual; (2) miscalculation of the “intended loss”;
(3) misapplication of the “identity theft” enhancement;
(4) misapplication of the “sophisticated means” enhancement;
(5) misapplication of the U.S.S.G. § 2L2.2(c)(1)(A) cross-
reference to U.S.S.G. § 2X1.1; (6) misapplication of the
“abuse of trust” enhancement; and (7) misapplication of the
“obstruction of justice” enhancement.17
1. Applicable standards
“The district court must correctly calculate the
recommended Guidelines sentence” before sentencing a
defendant. United States v. Hymas, 780 F.3d 1285, 1292 (9th
Cir. 2015) (brackets and citation omitted); accord United
States v. Bernardo, 818 F.3d 983, 985 (9th Cir. 2016) (“‘Even
though the Guidelines are advisory, they are still the “starting
conviction in the first case. We will consider those challenges in the next
section.
17
We note the Addendum did little to assist the trial court in determining
the merits of the parties’ objections. Rather than discussing and offering
reasoned resolutions to the numerous objections, the Addendum did little
more than repeatedly invoke the mantra, “The undersigned stands by [his
original determination].” As to one of Thomsen’s critical guidelines
disputes, concerning the amount of restitution, the Addendum claims that
“[t]hese objections have been addressed in the undersigned’s response to
the government’s guideline disputes.” This response is unhelpful, because
the probation officer’s response to the pertinent guideline dispute by the
government is that “the overall matter of relevant conduct is deferred to
the Court for resolution.” See Addendum at 6, ¶ 3 & 6.
42 UNITED STATES V. THOMSEN
point and the initial benchmark” for the sentencing process.’”
(quoting United States v. Ellis, 641 F.3d 411, 415 (9th Cir.
2011), in turn quoting Kimbrough v. United States, 552 U.S.
85, 108 (2007)). More specifically, “we ‘must first ensure
that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating)
the Guidelines range.’” Bernardo, 818 F.3d at 985 (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)); United States
v. Johnson, 812 F.3d 757, 761 (9th Cir. 2016) (adding to the
list of procedural errors “‘treating the Guidelines as
mandatory, failing to properly consider the [18 U.S.C.]
§ 3553(a) factors, using clearly erroneous facts when
calculating the Guidelines range or determining the sentence,
and failing to provide an adequate explanation for the
sentence imposed’” (quoting United States v. Christensen,
732 F.3d 1094, 1100 (9th Cir. 2013)). In doing so,
[w]e review the district court’s factual
findings for clear error and its interpretation
of the Sentencing Guidelines de novo. United
States v. Smith, 719 F.3d 1120, 1123 (9th
Cir.2013). There is a longstanding intracircuit
conflict as to whether we review the district
court’s application of the guidelines to the
facts de novo or for abuse of discretion,
United States v. Sullivan, 797 F.3d 623, 641 n.
13 (9th Cir.2015), but [if] we would reach the
same conclusion here under either standard,
we need not call this case en banc to resolve
the conflict.
Bernardo, 818 F.3d at 985.
UNITED STATES V. THOMSEN 43
2. Alleged errors
a. The wrong Guidelines Manual
Thomsen challenges the calculation of the number of
victims under U.S.S.G. § 2B1.1(b)(2)(C) from the 2011
Guidelines Manual. He argues that version of the guideline
was first included in the 2009 Guidelines Manual, effective
November 1, 2009. Thus, he argues, it was not in effect at
the time of the offenses for which he was convicted, causing
an ex post facto violation. He argues that the only proper
“victim” is the IRS under the correct, 2008, version of the
guidelines. The United States concedes that the wrong
version of U.S.S.G. § 2B1.1(b)(2)(C) was used and that this
error requires remand to resolve the determination of the
number of victims. We agree.
A district court properly applies the version of the
Sentencing Guidelines in effect at the time of sentencing,
unless doing so would violate the ex post facto clause.
U.S.S.G. §§ 1B1.11(a), (b)(1). “To implicate ex post facto
concerns, amendments to the Sentencing Guidelines must
present ‘a sufficient risk of increasing the measure of
punishment attached to the covered crimes.’” United States
v. Waters, 771 F.3d 679, 680 (9th Cir. 2014) (quoting Peugh
v. United States, ___ U.S. ___, ___, 133 S. Ct. 2072, 2082
(2013)). There is little doubt that use of the “wrong” version
of U.S.S.G. § 2B1.1(b)(2) in this case resulted in “‘a
sufficient risk of increasing the measure of punishment’” for
Thomsen’s convictions to raise an ex post facto problem. Id.
(quoting Peugh, ___ U.S. at ___, 133 S. Ct. at 2082). Here,
the “wrong” version of the applicable guideline increased
Thomsen’s advisory guidelines range by six levels; the
United States does not argue that it is clear that the district
44 UNITED STATES V. THOMSEN
court would have applied the same sentence under the older
guideline, but rather concedes that remand is appropriate; and
the only other Circuit Court of Appeals to consider whether
the amendment of this guideline violated the ex post facto
clause under the Peugh standard also reversed for
resentencing. See United States v. Diaz, 515 F. App’x 595,
595–96 (7th Cir. 2013) (unpubl. mem.).
Upon remand, the district court must correct the ex post
facto violation. Moreover, the commentary to § 1B1.11
provides that “if an earlier edition of the Guidelines Manual
is used, it is to be used in its entirety, except that subsequent
clarifying amendments are to be considered.” U.S.S.G.
§ 1B1.11, cmt. n.1 (2008 & 2015). Thus, the correct
Guidelines Manual for Thomsen’s entire resentencing, on
remand, is the 2008 version.
b. “Intended loss”
Thomsen claims the district court incorrectly calculated
“intended loss” under U.S.S.G. § 2B1.1(b)(1). U.S.S.G.
§ 2B1.1(a)(1) provides for level increases for losses
exceeding certain amounts in, inter alia, fraud cases. See
United States v. Gonzalez Becerra, 784 F.3d 514, 516 n.2 (9th
Cir. 2015) (“U.S.S.G. § 2B1.1(b)(1) sets out a schedule in
which greater amounts of actual or intended monetary losses
are coupled with correspondingly greater increases to a
defendant’s offense level.”). A district court’s method of
calculating loss under the guidelines is reviewed de novo, and
the determination of the loss amount is reviewed for clear
error. United States v. Aubrey, 800 F.3d 1115, 1132 (9th Cir.
2015); United States v. Del Toro-Barboza, 673 F.3d 1136,
1153–54 (9th Cir. 2012). A district court must make “a
reasonable estimate of the loss based on available
UNITED STATES V. THOMSEN 45
information.” United States v. Zolp, 479 F.3d 715, 719 (9th
Cir. 2007).
U.S.S.G. § 2B1.1(a)(1), cmt. n.3(A)(i)–(ii) (2008),
explains that “loss is the greater of actual loss and intended
loss” and how each kind of loss is determined. More
importantly, here, when calculating loss amounts, the district
court is allowed to consider all relevant conduct that is “part
of the same course of conduct or common scheme or plan as
the offense of conviction.” U.S.S.G. § 1B1.3(a)(2) (2008);
United States v. Newbert, 952 F.2d 281, 284 (9th Cir. 1991).
This allows the court to include charged, uncharged, and even
acquitted conduct in the determination of loss. United States
v. May, 706 F.3d 1209, 1213 (9th Cir. 2013).
The primary flaw with the “intended loss” finding, here,
is that the district court improperly considered the intended
loss from the second case, which did not result in Thomsen’s
conviction, even though the second case did not involve
“relevant conduct,” because it was not “part of the same
course of conduct or common scheme or plan as the offense
of conviction.” U.S.S.G. § 1B1.3(a)(2) (2008). Furthermore,
the United States nowhere identifies evidence establishing—
or identified by the district court as the basis for a finding—
that specific challenged amounts of intended loss in the first
case were, in fact, actual or intended losses. While there is
copious evidence of some association between Thomsen and
most of the allegedly fraudulent tax refunds claimed, that is
not the same as copious evidence that each such refund, in
fact, resulted in an actual or intended loss to the IRS. Under
the circumstances, it is difficult to tell what the evidentiary
basis for the $425,117 intended loss might be, beyond the
prosecutor’s statements to the probation officer. It is
possible, however, to conclude that the district court clearly
46 UNITED STATES V. THOMSEN
erred in determining the amount of intended loss. Aubrey,
800 F.3d at 1132.
Upon remand, the district court should make factual
findings supporting the amount of intended loss and apply the
appropriate enhancement pursuant to U.S.S.G. § 2B1.1(a)(1)
(2008).
c. The “identity theft” enhancement
Next, Thomsen argues that the district court erroneously
applied the identity theft specific offense characteristic under
U.S.S.G. § 2B1.1(b)(11)(C) (2008). We agree. The only
basis on which the Addendum recommended a two-level
enhancement pursuant to U.S.S.G. § 2B1.1(b)(11) (2008) was
pursuant to U.S.S.G. § 2B1.1(b)(11)(C)(i) (2008), as follows:
The defendant used SSNs of others to file
false tax returns and to obtain fraudulent tax
refunds. He also [used] his victim’s [sic]
SSNs to produce other means of
identification, namely personal tax returns.
Addendum at 7 (emphasis in the original).18 The pertinent
part of the applicable guideline in the 2008 Manual is
U.S.S.G. § 2B1.1(b)(10) (2008), which provides, as follows:
(11) If the offense involved . . . (C)(i) the
unauthorized transfer or use of any means of
18
The prosecution argues that the enhancement is proper on a variety of
other grounds, but has not identified any part of the record hinting that the
district court imposed a U.S.S.G. § 2B1.1(b)(11) (2008) enhancement on
any other ground.
UNITED STATES V. THOMSEN 47
identification unlawfully to produce or obtain
any other means of identification. . . increase
by 2 levels. If the resulting offense level is
less than level 12, increase to level 12.
U.S.S.G. § 2B1.1(b)(10)(C)(i) (2008). Application Note 9 to
the 2008 version of this guideline defines “means of
identification” for purposes of this guideline, as that term is
defined 18 U.S.C. 1028(d)(7), with certain limitations.
U.S.S.G. § 2B1.1, cmt. n.9 (2008). “Personal tax returns” are
conspicuous by their absence from the list of “means of
identification” in 18 U.S.C. § 1028(d)(7). The United States
has not cited, and we have not found, any decision of this
court or any other Circuit Court of Appeals holding that “tax
returns” are “means of identification” within the meaning of
either 18 U.S.C. § 1028(d)(7) or any version of U.S.S.G.
§ 2B1.1(b)(10)(C)(i) (now U.S.S.G. § 2B1.1(b)(11)(C)(i)).19
Thus, the “identity theft” enhancement pursuant to
U.S.S.G. § 2B1.1(b)(10)(C)(i) (2008) was improperly
imposed.20
19
Indeed, what case law we have found is to the contrary. See United
States v. White, 571 F. App’x 20, 26 (2d Cir. 2014) (summary order)
(holding that, where the defendant was convicted of using others’
identifications to file false tax returns and to receive refunds, the district
court did not find, nor did the PSR state, that using others’ identifications
to file a false return and receive a refund involved obtaining another
means of identification within the meaning of U.S.S.G.
§ 2B1.1(b)(11)(C)(i)).
20
Because we remand for resentencing, we need not address Thomsen’s
“double-counting” argument.
48 UNITED STATES V. THOMSEN
d. The “sophisticated means” enhancement
Thomsen also claims the district court incorrectly applied
the “sophisticated means” enhancement, U.S.S.G.
§ 2B1.1(b)(9)(C) (2008).21 We disagree. Here, as in United
States v. Augare, 800 F.3d 1173, 1175–76 (9th Cir. 2015),
Thomsen used “coordinated and repetitive steps” to effect his
fraudulent scheme, comparable in “sophistication” to
schemes held to warrant the enhancement. Id. Indeed, his
scheme involved “dozens of various acts,” including
falsifying tax returns and checks, to conceal his false claims,
cf. United States v. Tanke, 743 F.3d 1296, 1307 (9th Cir.
2014); using a bank account with a deceptive name to conceal
income, which warranted the enhancement, even if the
scheme was not “highly complex” and did not “exhibit
exceptional brilliance,” cf. United States v. Jennings,
711 F.3d 1144, 1145 (9th Cir. 2013); and even involved
falsification of documents and left a “complicated and
fabricated” paper trail to hide his fraud, cf. United States v.
Horob, 735 F.3d 866, 872 (9th Cir. 2013) (per curiam). The
district court properly imposed this enhancement.
e. The cross-reference
Next, Thomsen appeals the application of the U.S.S.G.
§ 2L2.2(c)(1)(A) cross-reference to U.S.S.G. § 2X1.1. This
cross-reference resulted in the same base offense level and
the same enhancements pursuant to U.S.S.G. § 2B1.1 for his
21
Thomsen cites U.S.S.G. § 2B1.1(b)(9)(C) from the 2008 Guidelines
Manual as the basis for this challenge. Although he concedes that there
is no difference between the 2008 Guidelines and the 2013 Guidelines as
to this or other aspects of his appeal, we noted, above, that the correct
Guidelines Manual for Thomsen’s entire resentencing is the 2008 version.
UNITED STATES V. THOMSEN 49
Group Two offense (Count 33) as for his Group One offenses
(Counts 1–4, 7–16, and 17–24). Because we have vacated
Thomsen’s conviction on Count 33, the only count in Group
Two, no cross-reference is applicable. The district court must
recalculate the sentence upon remand.
f. The “abuse of trust” enhancement
Thomsen’s penultimate ground for appeal is that the
application of the U.S.S.G. § 3B1.3 enhancement for “abuse
of trust” was plain error. We disagree.
Thomsen is correct that the only basis on which the
probation officer recommended the two-level enhancement
for “abuse of trust” pursuant to U.S.S.G. § 3B1.3 (for both
groups of offenses) was that “the defendant was a tax
preparer, who was entrusted with the personal information of
others, which he used for his own financial gain,” which the
probation officer believed “constitute[d] an abuse of a
position of trust.” We have repeatedly held that, “‘[t]o
support the abuse of trust enhancement, “a position of trust
. . . must be established from the perspective of the victim.”’”
United States v. Technic Servs., Inc., 314 F.3d 1031, 1048
(9th Cir. 2002) (quoting United States v. Brickey, 289 F.3d
1144, 1154 (9th Cir. 2002), in turn quoting United States v.
Hill, 915 F.2d 502, 506 n.3 (9th Cir. 1990)), overruled on
other grounds by United States v. Contreras, 593 F.3d 1135,
1136 (9th Cir. 2010) (en banc) (per curiam); see also United
States v. White, 270 F.3d 356, 371 (6th Cir. 2001) (“The
abuse-of-trust enhancement may only be applied where the
defendant abused a position of trust with the victim of his
charged conduct.”). Where Thomsen goes astray is in his
assertion that the only “victim” in question is the IRS.
50 UNITED STATES V. THOMSEN
We have recognized that “victims of fraud are not limited
to the entities that bear the ultimate financial burden, but also
include those who bear emotional, financial and other
burdens.” United States v. Peyton, 353 F.3d 1080, 1091 (9th
Cir. 2003) (concluding that American Express was not the
only “victim” of a U.S. Postal Service supervisor who falsely
procured American Express credit cards in the names of co-
workers, but also those people named on the credit cards who
were injured, because their credit histories were adversely
affected). There was no plain error in application of the
“abuse of trust” enhancement, here, where persons in whose
names Thomsen filed fraudulent tax returns by using personal
information provided to him in his employment as a tax
preparer were subjected to emotional and other burdens as a
result of his conduct. Thus, the district court properly applied
the “abuse of trust” enhancement.
g. The “obstruction of justice” enhancement
Thomsen lastly asserts that the district court erroneously
applied a two-level enhancement for “obstruction of justice”
under U.S.S.G. § 3C1.1. We disagree.
The Supreme Court has observed that, when applying an
enhancement for “obstruction of justice” pursuant to U.S.S.G.
§ 3C1.1 for committing perjury, “it is preferable for a district
court to address each element of the alleged perjury in a
separate and clear finding,” but “[t]he district court’s
determination that enhancement is required is sufficient . . .
if, as was the case here, the court makes a finding of an
obstruction of, or impediment to, justice that encompasses all
of the factual predicates for a finding of perjury.” United
States v. Dunnigan, 507 U.S. 87, 95 (1993). Here, the district
judge’s findings in support of the “obstruction of justice”
UNITED STATES V. THOMSEN 51
enhancement based on Thomsen’s false testimony
encompassed not only falsity of the testimony and obstruction
of justice, but other elements. See id. at 94 (stating the
elements of perjury). The district judge encompassed intent
to provide false testimony when he told Thomsen that he
“d[idn’t] understand how someone who can be this smart, this
smart, could come up with the stories that you came up with
while you were on the witness stand” to attempt to exonerate
himself. His findings also encompassed materiality, because
he found that the false testimony was intended to suggest that
Thomsen was not the person who committed the offenses.
Thus, the district court did not err in imposing this
enhancement.
D. Scope Of The Record On Remand
During oral argument, we requested that the United States
confer with counsel for Thomsen about the scope of evidence
that the district court may consider, on any remand, as to the
number of victims under the 2008 Guidelines Manual. We
have been notified that the parties have conferred and jointly
agree that the record on remand as to the number of victims
will be limited to the following: (1) the current record before
the district court; (2) one additional government witness who
will testify based upon the existing record; and (3) a summary
chart that the witness may use to aid in his/her testimony. We
find that the parties’ request is reasonable, and grant it. See,
e.g., United States v. Matthews, 278 F.3d 880, 889 (9th Cir.
2002) (“[W]e conclude that there is no reason to limit the
district court’s authority to explore fully a factual issue at
resentencing simply because it failed to do so during the first
proceeding as a result of an erroneous legal ruling.”). The
record on remand shall be limited accordingly.
52 UNITED STATES V. THOMSEN
III. CONCLUSION
We reverse the district court’s denial of Thomsen’s
Motion For Judgment Of Acquittal as to Counts 33 and 34,
and vacate those convictions. We reverse the order of
restitution and sentence of incarceration, and remand for
redetermination of both.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.