United States v. Van Alstyne ( 2009 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                 No. 07-50105
    Plaintiff-Appellee,          D.C. No.
    v.                         CR-98-00118-
    LANCE VAN ALSTYNE,                            AHS-1
    Defendant-Appellant.
         OPINION
    Appeal from the United States District Court
    for the Central District of California
    Alicemarie H. Stotler, District Judge, Presiding
    Argued and Submitted
    March 9, 2009—Pasadena, California
    Filed October 22, 2009
    Before: Michael Daly Hawkins, Marsha S. Berzon and
    Richard R. Clifton, Circuit Judges.
    Opinion by Judge Berzon
    14195
    UNITED STATES v. VAN ALSTYNE             14201
    COUNSEL
    James H. Locklin (argued), Sean K. Kennedy, Los Angeles,
    California, for defendant-appellant Lance Van Alstyne.
    Douglas F. McCormick (argued), Thomas P. O’Brien, Robb
    C. Adkins, Santa Ana, California, for plaintiff-appellee the
    United States of America.
    OPINION
    BERZON, Circuit Judge:
    Lance Van Alstyne appeals his conviction for money laun-
    dering and the sentence imposed by the district court follow-
    ing a limited remand. After Van Alstyne filed his appeal to
    this court but before briefing, the Supreme Court decided
    United States v. Santos, 
    128 S. Ct. 2020
    (2008), which
    addressed — with less than clear results, as will appear — the
    meaning of the money laundering statute.
    Van Alstyne now argues that Santos requires us to reverse
    his money laundering conviction. We agree in part. We hold
    that Santos undermines our earlier approach to determining
    whether funds arising from a specified illegal activity consti-
    tute “proceeds” for the purposes of the money laundering stat-
    ute, 18 U.S.C. § 1956, and requires a reversal of Van
    Alstyne’s money laundering conviction for two of the three
    money laundering counts. As to the third count, we affirm the
    conviction as consistent with Santos. We agree with Van Al-
    styne that the district court erred in calculating the enhance-
    14202             UNITED STATES v. VAN ALSTYNE
    ment to the money laundering sentence under U.S.S.G.
    § 2S1.1, in determining his fraud offense level under U.S.S.G.
    § 2F1.1(b)(1), and in imposing the restitution requirement,
    and so remand for reconsideration of those portions of Van
    Alstyne’s sentence.
    FACTS AND PROCEDURAL BACKGROUND
    Van Alstyne defrauded approximately 450 victims through
    a Ponzi scheme involving a number of companies that he
    organized for that purpose. The fraudulent scheme, begun in
    1992, was built around thirteen oil and gas limited partner-
    ships. These partnerships, LEM Pacific Income Fund I-IV,
    Sandstone Gas Fund I-V, and American Gas Fund I-IV, were
    controlled by Van Alstyne. Other companies he owned or
    controlled, Liberty Energy Management and Sabre Asset
    Management, served as the general partners for the limited
    partnerships. Continental Mineral Acquisitions and Blake
    Energy Corporation, two acquisition companies also owned
    by Van Alstyne, purchased oil and gas properties on behalf of
    the limited partnerships.
    Van Alstyne perpetuated the scheme by selling interests in
    the limited partnerships to elderly and retired investors. Vic-
    tims were solicited by brokers from Coastline Financial and
    Merchant Banking Services, both of which were, at the time,
    broker/dealers registered with the National Association of
    Securities Dealers (NASD).1 Van Alstyne required the brokers
    to adhere to a script that described a safe investment with a
    more than ten percent annual return, backed by AAA-rated
    government bonds. Only after making their initial investments
    did the victims receive a printed prospectus disclosing that the
    investments were in fact risky and that losses could result
    from fluctuations in oil and gas prices. Nonetheless, because
    1
    Although Van Alstyne eventually acquired all the stock of Merchant
    Banking Services, Coastline Financial was owned by Donald Williams.
    Van Alstyne may have exercised some control over Coastline Financial.
    UNITED STATES v. VAN ALSTYNE                  14203
    victims received distribution checks shortly after making their
    initial investments, they believed they had invested wisely
    and often re-invested when contacted by brokers. In reality,
    the distribution checks were largely funded not by oil and gas
    revenues but by the investors’ own principal.2
    The scheme began to unravel in October 1994, when
    NASD shut down Van Alstyne’s sales operation, Merchant
    Banking Services. Although Van Alstyne’s agents continued
    to peddle partnership interests, new investments slowed.
    Shortly thereafter, Van Alstyne sent a letter to investors,
    revealing that the distributions they had received so far were
    not, in fact, oil and gas revenues, but instead a return of their
    own principal. The letter explained that distributions were
    made by refunding the investors’ principal “so that the distri-
    butions could begin immediately rather than waiting until the
    production proceeds were actually received.” Henceforth, the
    letter indicated, investors would receive only their share of the
    oil and gas revenue. Investors testified that when they con-
    tacted Van Alstyne to address concerns his letter raised, he
    reassured them that “everything was going to be all right” and
    that investors could continue to expect distribution checks.
    Distribution checks did in fact continue to arrive but at a
    much slower pace — quarterly, instead of monthly — and in
    vastly decreased amounts. Some of the complaining investors
    received checks refunding some or all of their contributions,
    although at least some were unable to cash the checks because
    of insufficient funds.
    Van Alstyne was forced to cut back operations in 1995.
    From then until 1998 investors received only sporadic distri-
    bution checks, sometimes for amounts as low as a few cents.
    In the end, the investors collectively invested more than $10
    million in the limited partnerships and received a total distri-
    2
    Nor were the investments backed by safe government bonds. Zero-
    coupon bonds with a maturity of thirty-eight years were bought for only
    two of the limited partnerships and were sold within three months.
    14204               UNITED STATES v. VAN ALSTYNE
    bution of approximately $2 million. Van Alstyne made off
    with more than $2 million in salary and payments from the
    various companies he had set up to carry out this scheme.3
    In October 1998, a federal grand jury returned an amended
    indictment charging Van Alstyne with nineteen counts of mail
    fraud in violation of 18 U.S.C. § 1341 and three counts of
    money      laundering     in   violation    of   18    U.S.C.
    § 1956(a)(1)(A)(i). The money laundering charges were based
    on three specific transactions: Counts 20 and 21 involved
    transfers of funds, one in January 1994 and one in June 1994,
    from the acquisition company Blake Energy Corporation to
    one of the limited partnerships. Trial testimony revealed that
    these transfers were made for the purpose of making distribu-
    tions to individual investors. Count 23 involved a transfer of
    funds from Blake Energy to a limited partnership, executed in
    November 1994 — that is, after the scheme began to unravel.
    Testimony elicited at trial indicated that this transfer was
    made to refund one investor’s entire outlay.
    In June 2001, after a three-week trial, a jury returned a
    guilty verdict on seven of the mail fraud counts and all three
    counts of money laundering. Van Alstyne was sentenced to a
    290-month prison term (approximately 24 years), three years
    of supervised release, a special assessment of $5,000, and res-
    titution of more than $9 million. Van Alstyne appealed, and
    this court affirmed his convictions and his sentence.4 United
    States v. Van Alstyne, 87 Fed. Appx. 640 (9th Cir. 2004). The
    Supreme Court subsequently granted Van Alstyne’s petition
    for certiorari, vacated his sentence, and remanded for recon-
    3
    As the district court noted, this calculation leaves “several million dol-
    lars [ ] unaccounted for.”
    4
    The judgment of conviction entered by the district court listed a prison
    term of 300 months. This court issued a limited remand to the district
    court for the sole purpose of amending the judgment to reflect the 290-
    month sentence imposed orally. See United States v. Van Alstyne, 77 Fed.
    Appx. 937 (9th Cir. 2003), superseded and corrected by United States v.
    Van Alstyne, 89 Fed. Appx. 7 (9th Cir. 2004).
    UNITED STATES v. VAN ALSTYNE             14205
    sideration in light of United States v. Booker, 
    543 U.S. 220
    (2005). See Van Alstyne v. United States, 
    543 U.S. 1116
    (2005). On remand, this court affirmed Van Alstyne’s convic-
    tions and remanded his sentence for reconsideration pursuant
    to United States v. Ameline, 
    409 F.3d 1073
    (9th Cir. 2005) (en
    banc). United States v. Van Alstyne, 143 Fed. Appx. 45 (9th
    Cir. 2005).
    Pursuant to the Ameline remand, the trial judge determined
    that she would have imposed a materially different sentence
    had the guidelines not been mandatory and resentenced Van
    Alstyne to a 216-month prison term, three years of supervised
    release, a special assessment of $500, and $9 million in resti-
    tution. The new sentence required that, if any restitution
    remains unpaid after Van Alstyne’s release, it shall be paid in
    “nominal” monthly payments of $10,000 each, as “the court
    finds that the defendant’s economic circumstances do not
    allow for either immediate or future payment of the amount
    owed.” Van Alstyne timely appealed.
    II.    ANALYSIS
    A.   Effect of Santos on Van Alstyne’s Money Laundering
    Conviction
    [1] Van Alstyne was convicted of three counts of money
    laundering, in violation of 18 U.S.C. § 1956(a)(1). That sec-
    tion provides, in relevant part:
    Whoever, knowing that the property involved in a
    financial transaction represents the proceeds of some
    form of unlawful activity, conducts or attempts to
    conduct such a financial transaction which in fact
    involves the proceeds of specified unlawful activity
    . . . with the intent to promote the carrying on of
    specified unlawful activity . . . shall be sentenced to
    a fine of not more than $500,000 or twice the value
    of the property involved in the transaction, which-
    14206              UNITED STATES v. VAN ALSTYNE
    ever is greater, or imprisonment for not more than
    twenty years, or both.
    18 U.S.C. § 1956(a)(1)(A)(i) (emphasis added).5 The statute
    defines “specified unlawful activity” by enumerating certain
    predicate offenses, including “any act or activity constituting
    an offense listed in [18 U.S.C.] section 1961(1).” 18 U.S.C.
    § 1956(c)(7). Mail fraud, prohibited under 18 U.S.C. § 1341,
    is one such listed offense. 18 U.S.C. § 19.
    1.
    We begin by closely examining the Santos decision, as it
    is both the substantive and procedural predicate for Van Al-
    styne’s challenge to the money laundering conviction.
    [2] The defendant in Santos operated an illegal lottery in
    bars and restaurants in Indiana. Santos employed “runners” to
    gather bets from gamblers and to deliver the funds to “collec-
    tors.” The collectors in turn delivered the money to Santos,
    who used some of it to pay the runners’ commissions, the col-
    lectors’ salaries, and the lottery’s winners. 
    Santos, 128 S. Ct. at 2022-23
    . These payments to the runners, collectors, and
    winners formed the basis of an indictment charging Santos
    with both running an illegal gambling business and money
    laundering. A majority of the Court held that the term “pro-
    ceeds,” as applied to Santos’ offenses, refers to the “profits”
    of the criminal activity, not to the operation’s “gross
    receipts,” and that Santos’ payments to runners, collectors and
    winners constituted regular expenses, rather than profits, of
    the illegal gambling business. 
    Id. at 2031.
    [3] Van Alstyne contends that his payments to investors
    were no different than those held insufficient to sustain San-
    tos’ money laundering conviction because the payments were
    5
    Unless otherwise indicated, all references are to the 2006 edition of the
    U.S. Code.
    UNITED STATES v. VAN ALSTYNE                     14207
    “necessary for the operation to continue.” Our evaluation of
    this argument is seriously hampered by the fact that there is
    no majority opinion in Santos. Instead, there is a four-justice
    plurality opinion, authored by Justice Scalia, and a concur-
    rence by Justice Stevens, enunciating quite different reasoning
    from that of the plurality. Addressing Van Alstyne’s argument
    thus requires us to figure out the precedential impact of the
    Supreme Court’s fractured analysis in Santos.
    [4] According to the Santos plurality, “proceeds,” left unde-
    fined in § 1956, could mean either profits or gross receipts,
    and the rule of lenity weighs in favor of the more defendant-
    friendly profits definition. 
    Santos, 128 S. Ct. at 2024-25
    . This
    view of the statute was buttressed, according to the plurality,
    by what it termed the “merger problem”: Functioning lotteries
    will, presumably, pay their winners. Such payments from
    gross receipts are intended to promote the illegal lottery.
    Equating proceeds with gross receipts would therefore turn
    nearly every violation of the illegal lottery statute, 18 U.S.C.
    § 1955, into a simultaneous violation of § 1956, the money
    laundering statute, thereby “radically increas[ing]” the sen-
    tence. 
    Id. at 2026-27.6
    The four dissenting justices would have interpreted “pro-
    ceeds” as “the total amount brought in,” 
    id. at 2035
    (Alito, J.,
    dissenting), and leave the “so-called merger problem” to be
    dealt with at sentencing. 
    Id. at 2044.
    [5] Justice Stevens provided the fifth vote for the result
    reached by the plurality — that Santos’ payments to lottery
    winners and runners were not “proceeds” within the meaning
    of the money laundering statute. 
    Id. at 2033
    (Stevens, J., con-
    curring). But Justice Stevens rejected the plurality’s across-
    the-board application of the rule of lenity, citing the legisla-
    6
    The illegal lottery statute provides for a sentence of up to five years,
    18 U.S.C. § 1955(a). Violations of the money laundering statute are pun-
    ishable with sentences up to twenty years. 18 U.S.C. § 1956(a)(1).
    14208           UNITED STATES v. VAN ALSTYNE
    tive history of § 1956 as evidence that Congress intended
    “proceeds” to encompass gross revenues when the predicate
    crime involved the sale of contraband. 
    Id. at 2032
    & n.3. Jus-
    tice Stevens reasoned that “proceeds” may mean “profits”
    with respect to one predicate crime and “receipts” with
    respect to another, a result rejected by both the plurality and
    the dissent. 
    Id. at 2030,
    2035-36.
    The Court was divided not only over the meaning of “pro-
    ceeds” but also over the holding of the case, in light of the
    fractured vote on the merits. Ordinarily, when “no single
    rationale explaining the result enjoys the assent of five Jus-
    tices,” the holding is limited to the narrowest grounds sup-
    porting the result. Marks v. United States, 
    430 U.S. 188
    , 193
    (1977). The plurality, minus Justice Thomas, insisted that the
    holding of Santos under the Marks rule is that “ ‘proceeds’
    means ‘profits’ when there is no legislative history to the con-
    trary.” 
    Santos, 128 S. Ct. at 2031
    . Justice Stevens disputed that
    characterization of his own opinion, explaining that his con-
    clusion was driven by the conviction that Congress could not
    have intended the “perverse result” (the merger of the predi-
    cate crime and the money laundering statute) that the receipts
    definition would entail where the predicate crime was an ille-
    gal lottery. 
    Id. at 2034
    n.7. The dissenters, seizing on Justice
    Stevens’s discussion of organized crime and contraband,
    observed that five justices would have applied the “gross
    receipts” definition to these crimes. 
    Santos, 128 S. Ct. at 2035
    -
    36 & n.1.
    In light of this two-tier disarray, appellate courts have
    struggled to glean what, if any, new rule of law the divergent
    opinions of the Santos Court established. The Third Circuit
    interpreted Santos broadly, as holding that “the term ‘pro-
    ceeds,’ as that term is used in the federal money laundering
    statute, applies to criminal profits, not criminal receipts,
    derived from a specified unlawful activity.” United States v.
    Yusuf, 
    536 F.3d 178
    , 185 (3rd Cir. 2008). The Eleventh Cir-
    cuit took the opposite view, noting Santos’ “limited preceden-
    UNITED STATES v. VAN ALSTYNE                     14209
    tial value” and concluding that its “narrow holding . . . that
    the gross receipts of an unlicensed gambling operation were
    not ‘proceeds’ ” did not apply to a defendant who laundered
    funds gained from illegal drug trafficking. United States v.
    Demarest, 
    570 F.3d 1232
    , 1242 (11th Cir. 2009). The Fifth
    Circuit noted that “the precedential value of Santos is unclear
    outside of the narrow factual setting of that case, and the deci-
    sion raises as many issues as it resolves for the lower courts.”
    United States v. Brown, 
    553 F.3d 768
    , 783 (5th Cir. 2008).7
    Our circuit has mentioned Santos only in passing and in
    doing so failed to note that the plurality view did not com-
    mand a majority of justices: United States v. Lazarenko, 
    564 F.3d 1026
    (2009), stated that the Supreme Court “concluded
    that the term [‘proceeds’], left undefined in the statute, was
    ambiguous as to whether it meant ‘profits’ or ‘receipts,’ and
    so defined it in the more defendant-friendly terms of ‘profits,’
    based on the rule of lenity.” 
    Id. at 1039.
    In fact, the reasoning
    described in Lazarenko was that of the plurality but not that
    of Justice Stevens, who provided the fifth vote for reversing
    the conviction. Lazarenko’s misdescription of Santos was in
    no way relevant to our resolution of the Lazarenko case, and
    so is not binding on us.8 While Lazarenko’s mischaracteriza-
    7
    In Brown, where the predicate crime was distribution of controlled sub-
    stances, the court ultimately declined to reach the issue of Santos’ precise
    parameters, holding instead that even if the plurality’s profits definition
    governed this case, the defendants’ distribution of prescription drugs was
    undoubtedly profitable and thus fit within that definition. 
    Brown, 553 F.3d at 784
    .
    8
    The panel in Lazarenko invoked Santos only for the purpose of “reaf-
    firming the principle that when a term is undefined, we give it its ordinary
    meaning.” 
    Lazarenko, 564 F.3d at 1039
    (internal quotation omitted). The
    Lazarenko panel then distinguished the case at bar by noting that “extor-
    tion,” unlike “proceeds,” has an unambiguous, common law meaning. 
    Id. Thus, Lazarenko
    correctly relied on Santos for the proposition that the
    term “proceeds” is ambiguous, a view shared by a majority of justices.
    The passing suggestion that the plurality’s specific definition of ‘proceeds’
    applies beyond the facts of Santos was quite beside the point for which
    Lazarenko relied on Santos.
    14210              UNITED STATES v. VAN ALSTYNE
    tion of Santos’ holding is thus dicta, it illustrates the difficulty
    courts have encountered in turning the splintered Santos opin-
    ions into an intelligible rule of law.
    2.
    [6] Before proceeding further to determine the import of
    Santos for this case, we pause to address the government’s
    assertion that this court’s earlier decision affirming Van Als-
    tyne’s conviction precludes us from now considering the
    impact of Santos. As the government recognizes, where a
    defendant appeals after an Ameline remand, issues raised but
    not decided on an earlier appeal are properly before the court.
    United States v. Thornton, 
    511 F.3d 1221
    , 1226-27 (9th Cir.
    2008). Although the defendant in Thornton sought review of
    his sentence rather than his conviction, it is well settled that
    “in the context of a criminal prosecution, finality is normally
    defined by the imposition of the sentence.” United States v.
    LaFromboise, 
    427 F.3d 680
    , 683 (9th Cir. 2005) (internal
    quotation omitted).9 We therefore hold that challenges to a
    defendant’s conviction may be reviewed on appeal from an
    Ameline remand, where, as in Thornton, the challenge was
    raised in an earlier appeal.
    9
    LaFromboise considered the date on which a conviction becomes final
    for the purposes of the deadline for filing a habeas petition under 28
    U.S.C. § 2255. However, the proposition that a conviction does not
    become final until the sentence is final is consistent across a spectrum of
    caselaw addressing different facets of criminal law. See, e.g., Flanagan v.
    United States, 
    465 U.S. 259
    , 263 (1982) (holding that the Court of
    Appeals lacked jurisdiction to review order disqualifying counsel before
    defendant had been tried and sentenced); Flynt v. Ohio, 
    451 U.S. 619
    , 620
    (1981) (holding that the Supreme Court lacked jurisdiction to review Ohio
    Supreme Court’s decision remanding for trial because the Court can only
    review final judgments, defined by the imposition of a sentence); Berman
    v. United States, 
    302 U.S. 211
    , 212 (1937) (“Final judgment in a criminal
    case means sentence,” so a court’s suspension of the sentence did not ren-
    der defendant’s appeal interlocutory.).
    UNITED STATES v. VAN ALSTYNE                    14211
    In his previous appeal, Van Alstyne argued that insufficient
    evidence existed to support his conviction, a claim we
    reviewed de novo because Van Alstyne had timely moved for
    judgment of acquittal. United States v. Van Alstyne, 87 Fed.
    Appx. at 641. The panel rejected the insufficient evidence
    contention. 
    Id. at 642
    (citing United States v. Sayakhom, 
    186 F.3d 928
    , 941 (9th Cir. 1999)). Van Alstyne is now again
    appealing his conviction on insufficient evidence grounds,
    maintaining that, given Santos, he could not be convicted of
    money laundering.
    [7] Not surprisingly, the government contends that the law
    of the case doctrine forecloses consideration of Van Alstyne’s
    Santos argument.10 The law of the case doctrine provides that
    “one panel of an appellate court will not as a general rule
    reconsider questions which another panel has decided on a
    prior appeal in the same case.” United States v. Scrivner, 
    189 F.3d 825
    , 827 (9th Cir. 1999) (quoting Merritt v. Mackey, 
    932 F.2d 1317
    , 1320 (9th Cir. 1991)). “The doctrine is a judicial
    invention designed to aid in the efficient operation of court
    affairs . . . not an inexorable command.” United States v.
    Smith, 
    389 F.3d 944
    , 948-49 (9th Cir. 2004) (internal quota-
    tions omitted). Moreover, “[a] court may depart from the law
    of the case if . . . an intervening change in the law has
    occurred.” 
    Scrivner, 189 F.3d at 827
    .
    [8] Santos represents precisely the type of intervening
    change that the law of the case exception recognizes. Before
    Santos, Ninth Circuit precedent established that gross receipts
    from a specified illegal activity always satisfied the “pro-
    ceeds” prong of § 1956. See, e.g., United States v. Akintobi,
    
    159 F.3d 401
    , 403 (9th Cir. 1998) (defining proceeds as “that
    which is obtained . . . by any transaction”); United States v.
    10
    The government also cites the rule of mandate doctrine, but that doc-
    trine applies to district court proceedings following remand, not to the
    scope of a second appeal. See United States v. Thrasher, 
    483 F.3d 977
    ,
    981 (9th Cir. 2007), cert. denied, 
    128 S. Ct. 2052
    (2008).
    14212            UNITED STATES v. VAN ALSTYNE
    Savage, 
    67 F.3d 1435
    , 1442 (9th Cir. 1995) (“The money that
    investors sent to the Savage program constitutes the ‘pro-
    ceeds’ of the mail fraud.”). Our across-the-board application
    of the receipts definition plainly does not square with Santos,
    which, at a minimum, requires us to apply the “profits” defini-
    tion where the specified illegal activity is an illegal lottery,
    and, depending on the view one takes concerning what rule
    the fractured decision established, may apply to some set of
    other statutes as well. To the extent our caselaw posited a uni-
    form application of the “receipts” definition, it is inconsistent
    with Santos.
    Moreover, Akintobi relied on dictionary definitions of “pro-
    ceeds” to arrive at its conclusion that the term encompassed
    all gross receipts from illegal transactions. See 
    Akintobi, 159 F.3d at 403
    . Both the Santos plurality and Justice Stevens
    rejected this line of reasoning as an authoritative interpretive
    method with respect to this statute. See 
    Santos, 128 S. Ct. at 2023-24
    (opinion of Scalia, J.) (dictionary definition is ambig-
    uous); 
    id. at 2031-32
    (opinion of Stevens, J.) (same). We are
    “bound not only by the holdings of [the Supreme Court’s]
    decisions but also by their mode of analysis.” Miller v. Gam-
    mie, 
    335 F.3d 889
    , 900 (9th Cir. 2003) (en banc) (internal
    quotations omitted). So, even if Santos does not clearly estab-
    lish new law with respect to every predicate crime, it suffi-
    ciently undercut Akintobi to require that we address anew the
    meaning of “proceeds” in the money laundering context.
    3.
    [9] We therefore inquire whether Santos established a new
    rule of law that, as applied to Van Alstyne’s case, compels us
    to conclude that there was insufficient evidence for his con-
    viction. Having conducted that inquiry, we hold that Santos
    requires reversal of two counts of Van Alstyne’s money laun-
    dering convictions — those based on money transfers carried
    out for the purpose of distributions to individual investors —
    but not the third count, which involved a transfer for the pur-
    UNITED STATES v. VAN ALSTYNE                       14213
    pose of refunding the entire amount that one investor had
    entrusted to Van Alstyne.
    [10] Only the desire to avoid a “merger problem” united the
    five justices who held that Santos’ payments to winners and
    runners did not constitute money laundering. Otherwise, Jus-
    tice Stevens’ analysis diverged from that of both the plurality
    and the principal dissent.11 But, as the plurality noted, “[t]he
    merger problem is not limited to lottery operators. For a host
    of predicate crimes, merger would depend on the manner and
    timing of payment for the expenses associated with the com-
    mission of the crime.” 
    Santos, 128 S. Ct. at 2026
    (plurality
    opinion). We therefore view the holding that commanded five
    votes in Santos as being that “proceeds” means “profits”
    where viewing “proceeds” as “receipts” would present a
    “merger” problem of the kind that troubled the plurality and
    concurrence in Santos.12 The Sixth Circuit has also concluded
    that the existence of a “merger” problem is central to the
    meaning of “proceeds” after Santos. See United States v.
    Kratt, 
    579 F.3d 558
    , 562 (6th Cir. 2009) (holding that pro-
    ceeds “means profits only when the § 1956 predicate offense
    creates a merger problem that leads to a radical increase in the
    statutory maximum sentence and only when nothing in the
    legislative history suggests that Congress intended such an
    increase.”). See also United States v. Williams, 
    435 F.3d 1148
    , 1157 (9th Cir. 2006) (holding that to apply Marks,
    “[w]e need not find a legal opinion which a majority joined,
    11
    See 
    Santos, 128 S. Ct. at 2032
    n.3 (Stevens, J.) (“I cannot agree with
    the plurality that the rule of lenity must apply to the definition of ‘pro-
    ceeds’ for [the sale of contraband].”); 
    id. at 2030
    (Scalia, J.) (rejecting Jus-
    tice Stevens’ argument that “proceeds” could mean “profits” with respect
    to operating an illegal lottery but “receipts” with respect to sale of contra-
    band.).
    12
    We note that Congress subsequently amended the money laundering
    statute to expressly define proceeds to include gross receipts. 18 U.S.C.
    § 1956(c)(9) (2009). Our task, therefore, is to determine how the Santos
    Court would interpret “proceeds” with respect to mail fraud committed
    prior to the statute’s amendment in May 2009.
    14214           UNITED STATES v. VAN ALSTYNE
    but merely a legal standard which, when applied, will neces-
    sarily produce results with which a majority of the Court in
    that case would agree.”) (citation and quotation omitted). See
    also Smith v. Univ. of Wash. Law School, 
    233 F.3d 1188
    ,
    1200 (2000) (While a majority of Justices in Regents of the
    Univ. of Cal. v. Bakke, 
    438 U.S. 265
    (1978), would have per-
    mitted academic institutions to take race into account, “Justice
    Powell’s analysis is the narrowest footing upon which a race-
    conscious decision making process could stand.”).
    [11] Our question, then, is whether mail fraud is, or can be,
    a crime presenting the “merger” problem that was a fulcrum
    consideration for the Santos plurality and concurrence. Mail
    fraud has two elements: “(1) having devised or intending to
    devise a scheme to defraud (or to perform specified fraudulent
    acts), and (2) use of the mail for the purpose of executing, or
    attempting to execute, the scheme (or specified fraudulent
    acts).” Carter v. United States, 
    530 U.S. 255
    , 261 (2000); see
    also Bridge v. Phoenix Bond & Indem. Co., 
    128 S. Ct. 2131
    ,
    2138 (2008). The Supreme Court has emphasized that 18
    U.S.C. § 1341 prohibits “the ‘scheme to defraud’ rather than
    the completed fraud. . . . ,” Neder v. United States, 
    527 U.S. 1
    , 25 (1999), and that a mailing need only be “incident to an
    essential part of the scheme” to satisfy the second element.
    
    Bridge, 128 S. Ct. at 2138
    .
    [12] In Van Alstyne’s case, issuing distribution checks that
    supposedly represented generous returns on his victims’
    investment was a central component of the “scheme to
    defraud.” Doing so directly inspired investors to send more
    money to Van Alstyne’s funds, which could then be used to
    pay returns to other investors. The very nature of the scheme
    thus required some payments to investors for it to be at all
    successful. In sending the January and June distribution
    checks funded by the money transfer that was charged as
    money laundering, Van Alstyne “enter[ed] into a transaction
    paying the expenses of his illegal activity,” 
    Santos, 128 S. Ct. at 2027
    (plurality opinion). Convicting Van Alstyne of money
    UNITED STATES v. VAN ALSTYNE              14215
    laundering for the bank transfers inherent in the “scheme”
    central to the mail fraud charges thus presents a “merger”
    problem closely parallel to the one that underlay the majority
    result in Santos.
    We recognize that not all mail fraud schemes will involve
    payments that could implicate the “merger” problem. In
    Bridge, for example, the mail fraud scheme hinged on the
    defendants’ false attestations of compliance with a particular
    rule for bidding on tax liens that deprived competing bidders
    of a fair opportunity to participate in the auction. 
    Bridge, 128 S. Ct. at 2136
    . The scheme itself required no payments.
    Santos suggests, however, that the “profits” definition of
    “proceeds” should apply where the particular crime at issue
    depends on necessary payments, as it does here. The plurality
    noted that “any wealth-acquiring crime with multiple partici-
    pants would become money-laundering when the initial recip-
    ient of the wealth gives his confederate their shares,” 
    Santos, 128 S. Ct. at 2026
    -27. The “merger” problem may therefore be
    triggered when multiple participants share profits, regardless
    of whether the predicate crime would overlap with money
    laundering if executed by a single criminal. This language
    indicates that our analysis of the “merger” problem in the mail
    fraud context must focus on the concrete details of the partic-
    ular “scheme to defraud,” rather than on whether mail fraud
    generally requires payments of the kind implicated in Santos.
    [13] Moreover, all of the particular counts of mail fraud for
    which Van Alstyne was convicted involved transmissions of
    checks to investors, not the misrepresentations with which the
    investments were first induced. The government is therefore
    quite wrong to suggest that the mail fraud and money launder-
    ing crimes are separate in the mail fraud context because “the
    fraud was complete once the victim’s [sic] were induced to
    part with their money based on defendant’s misrepresenta-
    tions.” To the contrary, it appears that many, if not all, of the
    fraud counts of which Van Alstyne was convicted could have
    14216            UNITED STATES v. VAN ALSTYNE
    been charged as money laundering as well, sharply illustrating
    the “merger” problem.
    [14] The transaction in November that fully refunded one
    investor’s outlay cannot, however, be regarded as a crucial
    element of the “scheme to defraud.” The November 1994
    transaction refunded the full amount invested by James and
    Evelyn Easley, in response to their complaints after the
    scheme began to unravel. The Ponzi scheme depended on
    attracting new investments and using some but not all of the
    amount collected to pay returns to earlier investors. Returning
    the entire amount of the Easleys’ investment to them under-
    mined rather than advanced the core scheme, as the funds
    returned to them would not be available to lull other investors
    into maintaining their investment. At the same time, returning
    the Easleys’ investment was intended to “promote the carry-
    ing on,” 18 U.S.C. § 1956(a)(1)(A)(i), of the “scheme” at the
    heart of the mail fraud counts, by discouraging detection of
    that scheme. As the mail fraud “scheme” and money launder-
    ing elements are distinct with regard to this money laundering
    count, we affirm that count.
    [15] In sum, we reverse Van Alstyne’s money laundering
    conviction as to counts 20 and 21 but affirm as to count 22.
    B.   Challenges to Van Alstyne’s Sentence
    Van Alstyne raises several objections to his sentence. We
    review the interpretation of the sentencing guidelines de novo,
    see United States v. Williamson, 
    439 F.3d 1125
    , 1137 n.12
    (9th Cir. 2006), and review the district court’s factual findings
    for clear error, United States v. Maldonado, 
    215 F.3d 1046
    ,
    1050 (9th Cir. 2000). We review the district court’s restitution
    order for abuse of discretion, provided that it is within the
    bounds of the statutory framework. See United States v. Gor-
    don, 
    393 F.3d 1044
    , 1051 (9th Cir. 2004).
    UNITED STATES v. VAN ALSTYNE                      14217
    1.
    Van Alstyne argues that the district court erred by imposing
    an 8-level enhancement because “the value of the funds”
    exceeded $6 million. See U.S.S.G. § 2S1.1 (1993).13 Van Al-
    styne contends that the court erred by including in this amount
    the distributions and refunds to investors, commissions to bro-
    kers, and funds used to purchase oil and gas investments. The
    government’s response is that even if Santos narrowed the
    meaning of “proceeds,” the reference to “funds” in § 2S1.1
    implies that all money associated with the scheme is to be
    included for purposes of calculating the enhancement.
    [16] The term “funds” cannot be interpreted in a vacuum.
    The Guidelines specifically refer to 18 U.S.C. § 1956 and
    point out that the “statute covered by this guideline . . . pro-
    hibits financial transactions involving funds that are the pro-
    ceeds of ‘specified unlawful activity.’ ” U.S.S.G. § 2S1.1,
    cmt. background. As later amendments clarified, the Guide-
    lines impose enhancements based on the amount of funds that
    were laundered within the meaning of the statute. See
    U.S.S.G. § 2S1.1 (2008) & cmt. n.1 (conditioning the sentenc-
    ing enhancement on the value of “laundered funds” and defin-
    ing “laundered funds” as “the property, funds, or monetary
    instrument involved in the transaction . . . in violation of 18
    U.S.C. § 1956 . . . .”). Although the sentencing court could
    take into account uncharged (and even acquitted) conduct that
    constitutes money laundering, see United States v. Lawton,
    
    193 F.3d 1087
    , 1094 (9th Cir. 1999); U.S.S.G. § 1B1.3(a)(2),
    the Guidelines do not contemplate a base level enhancement
    on account of transactions that do not constitute money laun-
    13
    Neither party disputes that Van Alstyne was properly sentenced pursu-
    ant to the 1993 edition of the Guidelines. See Johnson v. Gomez, 
    92 F.3d 964
    , 968 (9th Cir. 1996) (if applying the version of the Guidelines in
    effect at the time of sentencing would result in an ex post facto violation,
    the district court must apply the version in effect at the time of the
    offense).
    14218              UNITED STATES v. VAN ALSTYNE
    dering within the meaning of the statute. Therefore, transac-
    tions that involve the payment of commissions, legitimate
    purchases of oil and gas properties, and periodic distributions
    to investors such as those involved in counts 21 and 22 may
    not be considered for the purpose of calculating the guidelines
    enhancement. Full refunds such as the one involved in count
    23 are, however, properly considered under § 2S1.1.
    2.
    [17] Van Alstyne argues that the district court also miscal-
    culated the offense level for the fraud counts.14 Under
    U.S.S.G. § 2F1.1(b)(1), the offense level is adjusted based on
    the amount of loss incurred because of the fraud. The district
    court imposed a fifteen-level enhancement, based on a total
    loss of more than $10 million. In arriving at the $10.7 million
    figure, the district court relied on United States v. Munoz, 
    233 F.3d 1117
    , 1125-26 (9th Cir. 2000), which used a “risk theory
    of loss” method to calculate the applicable amount. Applying
    this method, the district court considered the total amount of
    money invested by the scheme’s victims, without allowing for
    offsets of amounts returned to investors through distribution
    checks and refunds. Van Alstyne contends that a subsequent
    amendment to the sentencing guidelines clarified the appro-
    priate method for calculating losses in Ponzi schemes and
    rejected the approach taken in Munoz, and that his sentence
    should be vacated and remanded for calculation of the proper
    Guidelines range for the fraud counts in light of the interven-
    ing amendment. We agree.
    14
    Van Alstyne acknowledges that the higher offense level for the money
    laundering counts determined his sentencing range under the Guidelines.
    The offense level for the money laundering counts was 37, which included
    an eight level increase because the value of the laundered funds was calcu-
    lated to exceed $6 million. Our conclusion that the eight level increase
    must be reversed, 
    see supra
    Part II.B.1, raises the possibility that the
    money laundering sentence could, on remand, be lower than the adjusted
    offense for the fraud counts, which was 33. As sentencing issues with
    respect to Van Alstyne’s fraud convictions could thus arise on remand, we
    address those arguments here.
    UNITED STATES v. VAN ALSTYNE              14219
    In 2001, Amendment 617 revised several guidelines sec-
    tions relating to economic crimes. See United States v. Mor-
    gan, 
    376 F.3d 1002
    , 1011 (9th Cir. 2004). Among other
    changes, the amendment added the following language:
    In a case involving a fraudulent investment scheme,
    such as a Ponzi scheme, loss shall not be reduced by
    the money or the value of the property transferred to
    any individual investor in the scheme in excess of
    that investor’s principal investment (i.e., the gain to
    an individual investor in the scheme shall not be
    used to offset the loss to another individual investor
    in the scheme).
    U.S.S.G. § 2B1.1, cmt. n.3(F)(iv) (2008). This language only
    prohibits reductions for any profits made by investors in
    Ponzi schemes, not directly addressing whether the amount of
    loss should be reduced by any partial return of a victim’s
    investment. The notes accompanying the amendment, how-
    ever, make clear that the implication of the new standard is
    that returns to investors up to the amount invested do not
    count as losses, and that Munoz is thus no longer good law.
    The Commission explained that the amendment “resolves
    a circuit conflict regarding whether and how to credit pay-
    ments made to victims,” U.S.S.G. App. C at 690 (2008),
    referring to decisions by the Second, Fourth, and Fifth Cir-
    cuits that essentially adopted the “risk of loss” theory applied
    in Munoz: “Compare . . . United States v. Deavours, 
    219 F.3d 400
    (5th Cir. 2000) (intended loss is not reduced by any sums
    returned to investors).”. 
    Id. The Commission
    then cited
    United States v. Holiusa, 
    13 F.3d 1043
    (7th Cir. 1994), which
    held, in the words of the Commission, “that only the net loss
    should be included in loss, thus allowing a credit for returned
    interest,” and United States v. Orton, 
    73 F.3d 331
    (11th Cir.
    1996), which provided that payments to losing investors could
    be credited, but not payments to investors who profited. The
    Commission went on to state unequivocally that the amend-
    14220              UNITED STATES v. VAN ALSTYNE
    ment adopts the approach in Orton. U.S.S.G. App. C at 690
    (2008). The language of the amendment appears designed to
    differentiate Orton from Holiusa, which permitted Investor
    X’s net gain to offset Investor Y’s net loss, and so to rest on
    the Overton principle that payments to losing investors up to
    the amount of their investment do not count as losses. See
    United States v. Setser, 
    568 F.3d 482
    , 497 (5th Cir. 2009)
    (holding that the amendment in question superseded
    Deavours). We therefore hold that Munoz has been super-
    seded by the amended § 2B1.1 and that the rule of Orton now
    applies.
    [18] We further hold that the amendment clarifies, rather
    than substantively alters, the Guidelines and therefore must be
    applied to Van Alstyne on remand. See United States v.
    Aquino, 
    242 F.3d 859
    , 865 (2001). Relevant factors in consid-
    ering whether an amendment is substantive or clarifying
    include “(1) whether the amendment is included on the list of
    retroactive amendments found in U.S.S.G. § 1B1.10(c); (2)
    whether the Commission itself characterized the amendment
    as a clarification; and (3) whether the amendment resolves a
    circuit conflict.” 
    Morgan, 376 F.3d at 1011
    . In Morgan, we
    noted that “the Commission clearly did not intend Amend-
    ment 617 to be applied retroactively in its entirety,” and so
    “look[ed] to the circumstances surrounding the relevant
    guideline and its amendment” to determine whether the appli-
    cation note at issue was clarifying or substantive. 
    Id. at 1011-
    12 (internal quotation omitted). We held that “the Commis-
    sion’s efforts to resolve a circuit conflict, and a reasoned and
    reasonable conflict at that . . . weighs heavily in favor of con-
    cluding that the amendment is a clarification.”15 
    Id. at 1013.
    Here too, the change was made for the express purpose of
    resolving a conflict among the circuits that resulted from rea-
    sonable though differing interpretations of the Guideline. We
    15
    As in this case, the amendment in Morgan changed the law of this cir-
    cuit. See 
    Morgan, 376 F.3d at 1013
    .
    UNITED STATES v. VAN ALSTYNE                   14221
    therefore conclude that the amendment must be applied retro-
    actively. See United States v. Alfonso, 
    479 F.3d 570
    , 572 (8th
    Cir. 2007) (“[T]he parties agree that [Application Note
    3(F)(iv)] was properly relied upon because it simply clarified
    the meaning of the term ‘loss.’ ”). Accordingly, in recalculat-
    ing the fraud offense level on remand, the district court shall
    reduce the amount of loss by the amount of funds returned to
    investors up to the amount invested, but not by the amount,
    if any, of any profit made by any investors.
    3.
    [19] Van Alstyne also challenges the imposition of a four-
    level enhancement premised on the district court’s conclusion
    that he derived more than $1 million in gross receipts from an
    offense that affected a financial institution. Under the 1993
    edition of the guidelines, the offense level is increased by four
    levels where the offense “affected a financial institution and
    the defendant derived more than $1,000,000 in gross receipts
    from the offense.” § 2F1.1(b)(6)(B) (1993) (emphasis added).
    The applicable provision was modified in 2001 to read, “if . . .
    the defendant derived more than $1,000,000 in gross receipts
    from one or more financial institutions as a result of the
    offense, increase by 2 levels.” U.S.S.G. § 2B1.1(b)(14) (2008)
    (emphasis added).16 The Commission offered the following
    explanation of the change:
    The enhancement also was modified to address
    issues about what it means to “affect” a financial
    institution and how to apply the enhancement to a
    case in which there are more than one financial insti-
    tution involved. Accordingly, the revised provision
    focuses on whether the defendant derived more than
    $1,000,000 in gross receipts from one or more finan-
    cial institutions as a result of the offense.
    16
    Van Alstyne concedes that the change from a four- to a two-level
    enhancement is a substantive amendment that does not apply retroactively
    to him.
    14222           UNITED STATES v. VAN ALSTYNE
    U.S.S.G. App. C at 685 (2008). Van Alstyne notes that he
    received only $39,000 from a financial institution, Coastline
    Financial. Thus, if the amendment applies, Van Alstyne’s
    offense level should not have included the additional four-
    level enhancement.
    [20] Once again, the issue is whether the 2001 amendment
    to former Guideline § 2F1.1(b)(6)(B) was clarifying or sub-
    stantive. The circuits that have addressed this question have
    concluded that the amendment is substantive and may not be
    applied retroactively. See United States v. Amico, 
    573 F.3d 150
    , 151 (2d Cir. 2009); United States v. Monus, 
    356 F.3d 714
    , 718 (6th Cir. 2004); United States v. Swanson, 
    360 F.3d 1155
    , 1166-67 (10th Cir. 2004); United States v. Hartz, 
    296 F.3d 595
    , 599 (7th Cir. 2002). We agree. The plain language
    of the earlier version unambiguously conveyed that it applied
    if the offense generated more than $1 million from any source
    and also affected a financial institution; under this language
    any impact on a financial institution would do. See United
    States v. Greene, 
    212 F.3d 758
    , 761 (3rd Cir. 2000) (holding
    that these two elements were “separate and distinct prerequi-
    sites”). The amended language makes equally clear that the
    enhancement only applies if gross receipts in excess of $1
    million are derived from a financial institution. See 
    Hartz, 296 F.3d at 599
    . Under this language, the only effect on a finan-
    cial institution that counts is money flowing from a financial
    institution into the defendant’s coffers. As there was a sub-
    stantive change from the time he committed the offense, Van
    Alstyne may not take advantage of the more lenient sentenc-
    ing guideline on remand.
    4.
    Van Alstyne raises his objection to the restitution ordered
    for the first time on appeal. We therefore review the restitu-
    tion aspect of the sentence for plain error. United States v.
    Olano, 
    507 U.S. 725
    , 732 (1993) (a court may reverse when
    the error is plain, “affects substantial rights,” and “seriously
    UNITED STATES v. VAN ALSTYNE                    14223
    affects the fairness, integrity or public reputation of judicial
    proceedings”) (internal citations and alterations omitted). Van
    Alstyne contends that the district court erred in calculating the
    restitution amount and in ordering monthly payments of
    $10,000. We agree.
    [21] Van Alstyne argues, and the government apparently
    agrees, that a mathematical error resulted in an improper cal-
    culation of the total restitution owed. We so hold. The presen-
    tence report arrived at the total amount owed by deducting
    $1,536,180 that had been distributed to investors from Van
    Alstyne’s gross receipts of $10,737,000. This calculation
    ignored an additional $332,308 in distributions and $756,791
    in refunds made after the scheme began to unravel in 1995.
    The total amount of restitution ordered should have been
    $8,111,721.
    [22] The court also erred in ordering $10,000 monthly resti-
    tution payments. At the time of Van Alstyne’s charged
    offenses, the Victim Witness Protection Act (VWPA) pro-
    vided that “[t]he court, in determining whether to order resti-
    tution . . . shall consider the amount of the loss sustained by
    any victim as a result of the offense, the financial resources
    of the defendant [and] the financial needs and earning ability
    of the defendant and the defendant’s dependents.” 18 U.S.C.
    § 3664(a) (1994).17 The presentence report indicates that at the
    time of sentencing Van Alstyne’s monthly income was $5 to
    17
    All of the charged offenses occurred before the enactment of the Man-
    datory Victim Restitution Act, which amended §§ 3663 and 3664, took
    effect in 1996, although the fraudulent scheme continued for some time
    thereafter. Presumably as a result, this appeal has been litigated by both
    parties on the assumption that the 1996 amendments do not apply, and we
    proceed on that basis as well.
    In addition to the VWPA, the Pre-Sentence Report and the District
    Judge relied on the authority of the Senior Citizens Against Marketing
    Scams Act of 1994 (SCAMS), 18 U.S.C. § 2327 (1994), to order restitu-
    tion. As Van Alstyne notes, and the government does not dispute, SCAMS
    is not applicable here.
    14224              UNITED STATES v. VAN ALSTYNE
    $25 and that he was liable for a civil judgment of $1,530, a
    $210,642 tax lien, $10,781 in late child support payments, and
    almost $700,000 in restitution payments to victims pursuant
    to a NASD proceeding. Van Alstyne has a high school educa-
    tion and limited work experience. He filed for bankruptcy in
    the early 1990s.
    [23] Based on this information, the district court found that
    “the defendant’s economic circumstances do not allow for
    either immediate or future payment of the full amount.” The
    court nonetheless ordered Van Alstyne to make “nominal”
    restitution payments of $10,000 per month during the three-
    year period of supervised release following his release from
    prison. Ten thousand dollars per month cannot be called
    “nominal.” See Cummings v. Connell, 
    402 F.3d 936
    , 943 (9th
    Cir. 2005) (nominal damages “customarily are defined as a
    mere token or ‘trifling’ ”).18 Nor does the record provide any
    basis for concluding that Van Alstyne will be able to afford
    to pay $10,000 per month following his release.
    We recognize that the VWPA “does not require express
    findings on [the defendant’s resources and earning ability]
    and grants the district court broad discretion in the kind and
    amount of evidence.” United States v. Ramilo, 
    986 F.2d 333
    ,
    335 (9th Cir. 1993). Nonetheless, “at the time restitution is
    ordered, the record must reflect some evidence the defendant
    may be able to pay restitution in the amount ordered in the
    future.” 
    Id. at 336
    (emphasis added).
    The only possible bases for concluding that Van Alstyne
    18
    Cummings defined “nominal” in the context of damages for vindicat-
    ing constitutional rights when no quantifiable injury is proven, rather than
    in the restitution context; nonetheless, its characterization of the term is
    instructive.
    We do not disturb the portion of the restitution order requiring Van Al-
    styne to pay at least $25 per quarter during his prison term, an amount that
    is accurately characterized as “nominal.”
    UNITED STATES v. VAN ALSTYNE              14225
    was capable of satisfying the $10,000 monthly payments are
    observations in the original Presentence Report that “several
    million dollars remain unaccounted for” and that Van Alstyne
    had the motive to conceal funds acquired through the Ponzi
    scheme. The court made no finding, however, that Van Als-
    tyne actually still had access to the monetary fruits of his
    crime, nor did the court indicate that it disbelieved the finan-
    cial information Van Alstyne submitted at resentencing.
    Indeed, if the court believed that Van Alstyne retained mil-
    lions of dollars from his fraudulent scheme, there would have
    been no reason to delay the $10,000 monthly payments until
    after his release. Moreover, unsupported speculation that a
    defendant has secreted funds would not constitute an evidenti-
    ary basis for assessing the defendant’s ability to repay.
    [24] “A district court’s failure to make a restitution order
    with which a defendant could possibly be expected to comply
    threatens respect for judicial orders generally.” United States
    v. Bailey, 
    975 F.2d 1028
    , 1032 (4th Cir. 1992). On remand,
    the court shall recalculate the total amount owed and either
    order restitution amounts that are truly “nominal” or identify
    some evidence in the record that indicates Van Alstyne’s abil-
    ity to pay a higher monthly amount upon release.
    III.   CONCLUSION
    [25] Counts 21 and 22 of Van Alstyne’s conviction are
    REVERSED, count 23 is AFFIRMED, and his sentence is
    VACATED and REMANDED.
    

Document Info

Docket Number: 07-50105

Filed Date: 10/22/2009

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (46)

United States v. Santos , 128 S. Ct. 2020 ( 2008 )

United States v. Robert Aquino, United States of America v. ... , 242 F.3d 859 ( 2001 )

United States v. David Phillip Munoz Bennie E. McGregor ... , 233 F.3d 1117 ( 2000 )

Berman v. United States , 58 S. Ct. 164 ( 1937 )

Regents of the University of California v. Bakke , 98 S. Ct. 2733 ( 1978 )

Bridge v. Phoenix Bond & Indemnity Co. , 128 S. Ct. 2131 ( 2008 )

United States v. Alfred Arnold Ameline , 409 F.3d 1073 ( 2005 )

United States v. Reginald Greene, Reginald Greene , 212 F.3d 758 ( 2000 )

United States v. Loren Samuel Williamson , 439 F.3d 1125 ( 2006 )

United States v. Obet Lagumbay Ramilo , 986 F.2d 333 ( 1993 )

Robert JOHNSON, Petitioner-Appellant, v. Al GOMEZ; Attorney ... , 92 F.3d 964 ( 1996 )

United States v. Jose Alfredo Maldonado, AKA Chino , 215 F.3d 1046 ( 2000 )

United States v. Tashiri Wayne Williams , 435 F.3d 1148 ( 2006 )

Neder v. United States , 119 S. Ct. 1827 ( 1999 )

United States v. Thongsangoune Sayakhom , 186 F.3d 928 ( 1999 )

United States v. Setser , 568 F.3d 482 ( 2009 )

katuria-e-smith-angela-rock-michael-pyle-for-themselves-and-all-others , 233 F.3d 1188 ( 2000 )

United States v. Orton , 73 F.3d 331 ( 1996 )

christine-a-cummings-janet-taylor-darvas-richard-k-dehart-christopher , 402 F.3d 936 ( 2005 )

United States v. Bernard Addison Bailey , 975 F.2d 1028 ( 1992 )

View All Authorities »