United States v. Leonard Bernot , 672 F. App'x 725 ( 2016 )


Menu:
  •                                                                            FILED
    NOT FOR PUBLICATION
    DEC 27 2016
    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        Nos. 14-10569
    15-10184
    Plaintiff-Appellee,
    D.C. No.
    v.                                              2:08-cr-00093-KJM-4
    LEONARD BERNOT,
    MEMORANDUM*
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Eastern District of California
    Kimberly J. Mueller, District Judge, Presiding
    Submitted December 13, 2016**
    San Francisco, California
    Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,*** District Judge.
    Leonard Bernot appeals his sentence for conspiracy to commit mail fraud in
    violation of 
    18 U.S.C. § 1349
    . He challenges the application of a vulnerable victim
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes that this case is suitable for
    decision without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Elizabeth E. Foote, United States District Judge for the
    Western District of Louisiana, sitting by designation.
    enhancement and the imposition of restitution. We have jurisdiction under 
    28 U.S.C. § 1291
     and affirm.
    1.     A two-level sentencing enhancement may be imposed if the defendant
    “knew or should have known that a victim of the offense was a vulnerable victim.”
    U.S.S.G. § 3A1.1(b)(1). The district court properly found that Bernot’s
    “reasonably foreseeable” victims included the Garfinkles, see United States v.
    Treadwell, 
    593 F.3d 990
    , 1002 (9th Cir. 2010), and that these homeowners were
    particularly vulnerable compared to other victims of mail fraud, see United States
    v. Mendoza, 
    262 F.3d 957
    , 960-61 (9th Cir. 2001).
    2.     The district court correctly calculated the Guideline range of 37 to 46
    months and articulated the 
    18 U.S.C. § 3553
    (a) factors that it considered, including
    avoiding unwarranted sentencing disparities, which support the 18-month sentence
    imposed.
    3.     The district court properly used the value of the victims’ lost equity in
    their home, $316,744.79, as the amount of restitution. See 18 U.S.C.
    § 3663A(b)(1)(B)(i). Bernot is not entitled to a credit against the restitution for the
    down payment he made on the house. See id.
    4.     The district court did not clearly err in ordering immediate repayment,
    which is the default for restitution under 
    18 U.S.C. § 3572
    (d)(1). Bernot did not
    2
    object to immediate repayment at sentencing, nor does he argue on appeal that he
    is unable to make immediate repayment.
    AFFIRMED.
    3
    

Document Info

Docket Number: 14-10569; 15-10184

Citation Numbers: 672 F. App'x 725

Judges: Graber, Hurwitz, Foote

Filed Date: 12/27/2016

Precedential Status: Non-Precedential

Modified Date: 11/6/2024