United States v. Anthony Boscarino , 708 F. App'x 910 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-10350
Plaintiff-Appellee, D.C. No. 4:10-cr-01942-CKJ-JR-1
v.
ANTHONY MARK BOSCARINO, AKA MEMORANDUM*
Anthony G, AKA Mark Boscarino, AKA
Mike Brown, AKA Anthony Mark Kokas,
AKA Mark Kokas,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted August 28, 2017
Pasadena, California
Before: WARDLAW and BYBEE, Circuit Judges, and ILLSTON,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Susan Illston, United States District Judge for the
Northern District of California, sitting by designation.
Anthony Boscarino appeals the sentence imposed on remand, after his
convictions for wire fraud, money laundering, making a false statement, tax
evasion, felon in possession of a firearm, and making a false statement in
connection with the purchase of a firearm. We affirm.
1. The district court did not err in applying an obstruction of justice
enhancement under U.S.S.G. § 3C1.1. “We review a district court’s factual
determinations under Section 3C1.1 for clear error, and a district court’s
characterization of a defendant’s conduct as obstruction of justice within the
meaning of Section 3C1.1 de novo.” United States v. Cordova Barajas, 360 F.3d
1037, 1043 (9th Cir. 2004) (quoting United States v. Shetty, 130 F.3d 1324, 1333
(9th Cir. 1997) (internal alterations and quotation marks omitted)). The district
court properly found Defendant’s “cumulative conduct,” including willfully
making material false statements to the SEC while under oath, see United States v.
Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014), and witness intimidation, see
United States v. Dota, 33 F.3d 1179, 1189-90 (9th Cir. 1994), supported the
two-point enhancement for obstruction of justice.
2. The district court did not abuse its discretion in declining to depart or vary
downward for substantial savings to the government under U.S.S.G. § 5K2.0. See
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The record
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demonstrates that the district court considered Defendant’s motion for variance,
and its decision not to vary downward was not unreasonable. See United States v.
Lichtenberg, 631 F.3d 1021, 1024 (9th Cir. 2011).
3. The district court did not abuse its discretion in denying Defendant’s
motion for variance based on the not-yet-adopted amendment to U.S.S.G. §
2B1.1(b)(2). See United States v. Ruiz-Apolonio, 657 F.3d 907, 917-18 (9th Cir.
2011). Even if the district court had applied the proposed amendment, the court
did not clearly err in its alternative finding that the offense resulted in substantial
financial hardship to 25 or more victims. See United States v. Christensen, 598
F.3d 1201, 1203 (9th Cir. 2010) (holding that we review factual determinations for
clear error). Nor did the district court clearly err in applying the six-level
enhancement, rather than the two-level enhancement for mass-marketing.
4. Defendant stipulated that he would not contest the district court’s Final
Order of Forfeiture of seized assets, waiving his right to contest the asset seizure in
this appeal. But even if we were to find that Defendant forfeited rather than
waived this right and therefore review this issue for plain error, United States v.
Laurienti, 611 F.3d 530, 543 (9th Cir. 2010), he would not be entitled to relief.
Defendant has offered no evidence or made any allegation that the government
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seized specific untainted assets prior to his change of plea. The district court
therefore committed no error, let alone one that was plain.
AFFIRMED.
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