United States v. Lance Van Alstyne , 510 F. App'x 622 ( 2013 )

FILED
NOT FOR PUBLICATION FEB 28 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50116
Plaintiff - Appellee, D.C. No. 8:98-cr-00118-AHS-1
v.
MEMORANDUM *
LANCE VAN ALSTYNE,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, Senior District Judge, Presiding
Submitted February 26, 2013 **
San Francisco, California
Before: HAWKINS, BERZON, and CLIFTON, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
Lance Van Alsytne was convicted in 2001 of seven counts of mail fraud and
three counts of money laundering in connection with a fraudulent investment
scheme. This is his third appeal arising from that conviction. For the reasons stated
below, we affirm the district court’s judgment and sentence.
Van Alstyne’s present appeal seeks reversal and remand on two grounds:
First, he contends the district court abused its discretion when, on remand for
resentencing, it declined to take up Van Alstyne’s challenge to the one money
laundering conviction that we did not reverse when the case was last before us.
Relying on language from our 2009 opinion, United States v. Van Alstyne (Van
Alstyne II), 584 F.3d 803 (9th Cir. 2009), Van Alstyne maintains that the district
court should have vacated his conviction on count 22 because the refund
transaction on which that count was based “undermined rather than advanced” the
mail fraud investment scheme. See id. at 815–16. Second, he argues that the district
court erred in imposing a four-level “aggravating role” sentence enhancement
under U.S.S.G. § 3B1.1, because the evidence is insufficient to show that he
supervised a “criminally responsible” participant in the investment scheme. We
reject both of Van Alstyne’s arguments.
1. Our mandate to the district court on remand was limited to resentencing.
Van Alstyne II, 584 F.3d at 807, 816–818, 821. In this circuit, the rule of mandate
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is jurisdictional. United States v. Thrasher, 483 F.3d 977, 982 (9th Cir. 2007).
Thus, the district court correctly concluded that it lacked jurisdiction to consider
Van Alstyne’s challenge to his remaining money laundering conviction, as doing
so would have exceeded the clear parameters of our remand. See Hall v. City of Los
Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012).
The rule of mandate does not, however, preclude a district court from
considering issues not decided, expressly or implicitly, by the appellate court,
United States v. Kellington, 217 F.3d 1084, 1092–94 (9th Cir. 2000), or otherwise
“not foreclosed by the mandate,” Herrington v. Cnty. of Sonoma, 12 F.3d 901, 904
(9th Cir. 1993), as the “mandate[ ] require[s] respect for what the higher court
decided, not for what it did not decide.” Hall, 697 F.3d at 1067 (alterations in
original) (quoting Kellington, 217 F.3d at 1093). But we did decide the issue Van
Alstyne presented to the district court in our 2009 opinion. We specifically held
that although the refund transaction was not a “crucial element” of the scheme to
defraud, because it diminished the funds available to induce further investments, it
was “intended to ‘promote the carrying on,’ of the ‘scheme’ at the heart of the mail
fraud counts, by discouraging [its] detection.” Van Alstyne II, 584 F.3d at 815–16
(citation omitted) (quoting 18 U.S.C. § 1956(a)(1)(A)(i)). On that basis, we
affirmed Van Alstyne’s conviction as to count 22.
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Moreover, viewed under the law of the case doctrine, our result would be the
same. There was nothing clearly erroneous about our decision regarding the count
22 conviction, nor would its enforcement work a “manifest injustice.” United
States v. Lewis, 611 F.3d 1172, 1179 (9th Cir. 2010). A conviction under 18 U.S.C.
§1956 may be based on conduct that undermines the predicate criminal scheme in
one respect and promotes it in another. None of the other exceptions to the law of
the case doctrine applies.
2. There are no grounds for reversal of the sentencing enhancement. “Factual
determinations at sentencing are reviewed for clear error, and the application of the
Guidelines to the facts is reviewed for abuse of discretion.” United States v. Yi, 704
F.3d 800, 805 (9th Cir. 2013). The district court did not clearly err in finding by a
preponderance of the evidence that an individual under Van Alstyne’s supervision
was a “criminally responsible” participant in the fraud scheme. See U.S.S.G.
§ 3B1.1 cmt. nn.1–2; cf. United States v. Egge, 223 F.3d 1128, 1133 (9th Cir.
2000). There was evidence in the record that the individual not only knew of
fraudulent statements and payments to investors but continued his involvement in
the scheme in spite of this knowledge. Because the district court’s findings “are
plausible in light of the record viewed in its entirety,” reversal is not warranted.
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F. 3d 782, 795 (9th Cir.
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2005). Nor was the application of U.S.S.G. § 3B1.1(a) to the facts of this case
“illogical, implausible, or without support in inferences that may be drawn from
the facts in the record.” United States v. Treadwell, 593 F.3d 990, 999 (9th Cir.
2010) (quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en
banc)).
AFFIRMED.
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