United States v. Terral Toole , 444 F. App'x 113 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50153
Plaintiff - Appellee, D.C. No. 2:08-cr-00746-JFW-2
v.
MEMORANDUM*
TERRAL TOOLE, AKA Alex Noralez,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted July 12, 2011**
Pasadena, California
Before: FERNANDEZ, RYMER, and TALLMAN, Circuit Judges.
Terral Toole appeals his sentence following a guilty plea to several counts of
wire fraud and money laundering, 18 U.S.C. §§ 1343, 1957, 2. We have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.
*
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).
In calculating the Sentencing Guidelines range, a victim’s “loss” under
U.S.S.G. § 2B1.1(b)(1) is reduced by “the amount the victim has recovered at the
time of sentencing from disposition of the collateral” when, as here, there is
collateral pledged by the defendant. U.S.S.G. § 2B1.1 cmt. n. 3(E)(ii). Construing
similar language, we have held that the loss should be offset by the “actual sale
proceeds” the lender “has recovered.” United States v. Davoudi, 172 F.3d 1130,
1135 (9th Cir. 1999).
The district court appropriately determined the amount of loss based on the
actual sale prices of the collateral properties to third parties as opposed to the
prices listed on the trustee’s deeds. There was evidence in the record that the
lenders did not recover any proceeds in conjunction with the trustee’s deeds, and
that they only recovered “actual sale proceeds” upon the sale of the properties to
third parties. See Davoudi, 172 F.3d at 1135.
The Supreme Court’s decision in BFP v. Resolution Trust Corp., 511 U.S.
531 (1994) in no way counsels otherwise. In that case, the Court interpreted the
phrase “reasonably equivalent value” in 11 U.S.C. § 548(a)(1)(B)(i) (formerly
§ 548(a)(2)) to mean “the price in fact received at the foreclosure sale,” assuming
state law is complied with. Id. at 545. The case has no application to the
calculation of loss under the Sentencing Guidelines in this case.
AFFIRMED.