United States v. Kathy Funtila ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10038
Plaintiff-Appellee, D.C. No. 1:17-cr-00515-LEK-1
v.
KATHY FUNTILA, AKA Kathy Retter, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted July 14, 2020**
Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.
Kathy Funtila appeals from the district court’s judgment and challenges the
119-month sentence imposed following her guilty-plea conviction for bank fraud,
in violation of 18 U.S.C. § 1344, and aggravated identity theft, in violation of 18
U.S.C. § 1028A(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
affirm.
Funtila first contends that the district court clearly erred by finding that one
of the victims of her fraud, SMAC Hawaii, Inc. (“SMAC”), incurred financial
hardship through no fault of its own. She asserts that, in fact, SMAC must have
known that the funds Funtila fraudulently obtained from Hawaii National Bank
were borrowed and thus SMAC bore some responsibility for spending the funds.
However, as the district court explained, it was Funtila’s conduct in obtaining
those unauthorized loans that resulted in SMAC’s legal liability on the loans, and
ultimately caused SMAC’s dissolution when it could not repay. On this record, the
district court did not clearly err in concluding that Funtila was solely responsible
for the losses to SMAC. See United States v. Spangle, 626 F.3d 488, 497 (9th Cir.
2010) (“In order to reverse a district court’s factual findings as clearly erroneous,
we must determine that the district court’s factual findings were illogical,
implausible, or without support in the record.”).
Funtila also contends that the above-Guidelines sentence is substantively
unreasonable. We conclude that, in light of the reasons cited by the district court
and the totality of the circumstances, the district court did not abuse its discretion
in imposing the 119-month sentence. See Gall v. United States, 552 U.S. 38, 51
(2007); see also United States v. Christensen, 732 F.3d 1094, 1101 (9th Cir. 2013)
(district court may vary upward based on factors already accounted for in the
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Guidelines). Moreover, the district court adequately explained the upward
variance. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
The motion of Cynthia A. Kagiwada, Esq., to be relieved as appellant’s
counsel of record is granted. Funtila’s motion for appointment of substitute
counsel is denied. If Funtila wishes to seek rehearing, she may file a pro se
petition pursuant to Federal Rules of Appellate Procedure 35 and 40.
The Clerk will serve a copy of this disposition on counsel Kagiwada, as well
as on Funtila individually at: Reg. No. 06000-122, FDC Philadelphia, Federal
Detention Center, P.O. Box 562, Philadelphia, PA 19105.
AFFIRMED.
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