United States v. Henrik Sardariani , 580 F. App'x 532 ( 2014 )

FILED
NOT FOR PUBLICATION JUN 19 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50418
Plaintiff - Appellee, D.C. No. 2:10-cr-01343-VAP-1
v.
MEMORANDUM*
HENRIK SARDARIANI,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted January 7, 2014
Pasadena, California
Before: REINHARDT and CLIFTON, Circuit Judges, and DORSEY, District
Judge.**
Defendant Henrik Sardariani appeals his sentence of 120 months and
$100,000 fine imposed for a guilty plea conviction for conspiring to commit wire
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jennifer A. Dorsey, District Judge for the District of
Nevada, sitting by designation.
fraud, aggravated identity theft, and transactional money laundering (18 U.S.C.
§ 371); wire fraud (18 U.S.C. § 1343); and engaging in unlawful monetary
transactions (18 U.S.C. § 1957). We affirm the custodial portion of the sentence
but vacate the fine.1
Defendant argues that the court improperly applied a four-level adjustment
for his role in organizing criminal activity involving five or more participants. See
U.S.S.G. § 3B1.1(a). Specifically, he argues that the evidence presented prior to
sentencing was insufficient to support the court’s findings regarding the fifth
participant, and the FBI report proffered as evidence at sentencing was
inadmissible because it was not sufficiently reliable and consisted of hearsay. See
United States v. Alvarado-Martinez, 556 F.3d 732, 735 (9th Cir. 2009) (quoting
U.S.S.G. § 6A1.3(a)) (at sentencing, “a district court may consider any relevant
information, ‘provided that the information has sufficient indicia of reliability to
support its probable accuracy.’”); Fed. R. Evid. 802.
This case is distinguishable from the case cited by Defendant for the
proposition that the FBI report is not sufficiently reliable for the court to consider.
1
This memorandum disposition is filed together with an opinion in the same
case. The opinion holds that a notary seal is an “authentication feature” under 18
U.S.C. § 1028, and as such, the district court was correct in applying an
enhancement for use of an authentication feature under U.S.S.G.
§ 2B1.1(b)(11)(A)(ii) (formerly § 2B1.1(b)(10)(B)(ii)).
2
An FBI report detailing an interview with a named victim of the fraudulent scheme
is far from the uncorroborated and contradictory statement made by an unidentified
witness that the Second Circuit rejected in United States v. Chunza-Plazas, 45 F.3d
51, 58 (2d Cir. 1995). It is not error for a sentencing court to conclude that an FBI
report such as the one proffered here has “sufficient indica of reliability” to be
taken into account at sentencing. See e.g., United States v. Burns, 894 F.2d 334,
336–37 (9th Cir. 1990) (investigative report prepared by Secret Service agents was
sufficiently reliable to be admissible at sentencing). Further, it is irrelevant that the
FBI report contains hearsay. See U.S.S.G. § 6A1.3(a) (“court may consider
relevant information without regard to its admissibility under the rules of
evidence”); Fed. R. Evid. 1101(d)(3) (Federal Rules of Evidence do not apply in
sentencing proceedings).
In light of the evidence in the FBI report concerning the fifth participant, this
Court is not “left with the definite and firm conviction that a mistake has been
committed.” United States v. MacDonald, 339 F.3d 1080, 1082 (9th Cir. 2003)
(describing the standard for clear error) (internal quotation marks and citation
omitted); United States v. Treadwell, 593 F.3d 990, 999 (9th Cir. 2010) (factual
findings are reviewed for clear error). We affirm the district court’s application of
the role enhancement and the term of incarceration set in the sentence.
3
Defendant argues that the district court clearly erred in imposing a fine
because the information in the presentence report established that Defendant had
insufficient assets and earning potential to pay it. See United States v. Marin-
Cuevas, 147 F.3d 889, 895 (9th Cir. 1998) (a probation officer’s report is sufficient
evidence for purposes of sentencing). The Government concedes this point and
agrees that the fine should be vacated because its imposition could hinder payment
of the restitution. See 18 U.S.C. § 3572(b) (“the court shall impose a fine or other
monetary penalty only to the extent that such fine will not impair the ability of the
defendant to make restitution”). We agree that the fine should be vacated.
AFFIRMED in part, VACATED in part, and REMANDED.
4