United States v. Richard Charette , 471 F. App'x 752 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10228
Plaintiff - Appellee, D.C. No. 2:10-cr-00193-KJD-RJJ-1
v.
MEMORANDUM*
RICHARD W. CHARETTE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted March 12, 2012**
San Francisco, California
Before: WALLACE, D. W. NELSON, and BEA, Circuit Judges.
Richard W. Charette appeals from a 33-month term of imprisonment
imposed pursuant to his guilty plea to conspiracy under 18 U.S.C. § 371 to disclose
individually identifiable health information in violation of 42 U.S.C. § 1320d-6.
*
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).
We review factual findings with respect to calculation of the victims’ monetary
loss for clear error, United States v. Lawrence, 189 F.3d 838, 844 (9th Cir. 1999),
and the reasonableness of the sentence for an abuse of discretion, United States v.
Vasquez-Landaver, 527 F.3d 798, 805 (9th Cir. 2008). We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
The district court did not clearly err in calculating $121,812 of “actual loss”
under United States Sentencing Guidelines § 2B1.1. The hospital’s expenditures to
provide credit report service contracts to the people whose information was
potentially disclosed by Charette’s crime was a “reasonably foreseeable pecuniary
harm that resulted from the offense.” U.S.S.G. § 2B1.1 cmt. n. 3(A)(i); see also
United States v. Pham, 545 F.3d 712, 721 (9th Cir. 2008) (victims’ expenses to
mitigate effects of a crime may constitute actual loss).
The district court did not abuse its discretion in sentencing Charette to 33
months in prison, which was at the lowest point of the applicable Guidelines range.
Charette was not similarly situated to his co-conspirator because Charette was a
leader of the criminal activity and did not cooperate with the government. See
United States v. Carter, 560 F.3d 1107, 1121 (9th Cir. 2009). Charette also does
not point to any unusual circumstances that would have required the district court
to impose a below-Guidelines sentence. See id. at 1120.
AFFIRMED.
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