United States v. Hunter , 393 F. App'x 431 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30246
Plaintiff-Appellee, D.C. No. CR-4-00002-RRB
v. MEMORANDUM *
BECKY NADINE HUNTER, AKA
Rebekah A. Hunter, AKA Rebecca A.
Hunter, AKA Ann R. Hunter, AKA
Rebekah A. Smith, AKA Becky
Nadine Smith, AKA Rebekah Nadine
Carden, AKA Rebekah Nadine Smith,
AKA Rebecca A. Bennett, AKA
Rebekah An nadine Bennett Hunter,
AKA Rebekah Ann Hunter, AKA
Rebekah Nadine Pratt, AKA Rebecca
Smith,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted March 9, 2010
Seattle, Washington
*
This disposition is not appropriate for publication and may not be cited to
or by the Courts of this circuit except as may be provided by Ninth Circuit Rule
36-3.
Before: FISHER and BERZON, Circuit Judges, and SNOW, District Judge.**
Defendant-Appellant Becky Nadine Hunter (“Hunter”) appeals her ninety-
six month term of imprisonment and various restitution awards. Hunter was
convicted on twenty-two counts, all resulting from misrepresentation of herself in
various personal and business matters to obtain financial advantage. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, vacate in part, and
remand.1
DISCUSSION
I. Loss Calculation
Hunter first challenges the district court’s calculation of the amount of
intended loss resulting from her fraudulent schemes. Her challenge is barred by the
law of the case doctrine. See United States v. Alexander, 106 F.3d 874, 876 (9th
Cir. 1997). In her previous appeal, this court expressly affirmed the intended loss
amount because Hunter “failed . . . to provide evidence of any pledged collateral.”
United States v. Hunter, 286 F. App’x 482, 483 (9th Cir. 2008). No exception to
the law of the case doctrine applies here. See Thomas v. Bible, 983 F.2d 152, 155
**
The Honorable G. Murray Snow, United States District Judge for the
District of Arizona, sitting by designation.
1
In a concurrently filed opinion, we address the other issue Hunter raised on
appeal.
2
(9th Cir. 1993), cert. denied, 508 U.S. 951 (1993).
II. Guideline Enhancements
We also reject Hunter’s argument that the district court incorrectly enhanced
her sentence. The enhancement for misrepresentation in bankruptcy, United States
Sentencing Guidelines (“U.S.S.G.”) § 2F1.1(b)(4)(B) (2000), was proper. Hunter’s
total sentence was greater than the sixty-month statutory maximum for a single
count of bankruptcy fraud. Several of Hunter’s other crimes, however, which were
grouped together with the bankruptcy fraud, carry maximum penalties that far
exceed the ninety-six month prison term Hunter received. Grouping was
appropriate because Hunter’s “offense behavior” was “ongoing or continuous in
nature” and because the Guidelines specifically note that grouping is appropriate
for all offenses that fall under U.S.S.G. § 2B1.1, as do the present offenses. See
U.S.S.G. § 3D1.2(d). Inasmuch as Hunter’s offenses have been grouped, “the
offense level applicable to [the group] is the offense level corresponding to the
aggregated quantity, determined in accordance with” U.S.S.G. § 2F1.1; see
U.S.S.G. § 3D1.3(b).
Hunter’s enhancements for sophisticated means, U.S.S.G. § 2F1.1(b)(6)(B),
more than minimal planning, § 2F1.1(b)(2)(A), and use of a means of
identification, § 2F1.1(b)(5)(C), do not constitute impermissible “double
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counting.” These enhancements were necessary to reflect the full extent of
Hunter’s wrongfulness. See United States v. Thornton, 511 F.3d 1221, 1227–28
(9th Cir. 2008). The enhancement for using a means of identification applies
because it is possible to be sentenced for using a means of identification without
having engaged in more than minimal planning or sophisticated means. See id.;
United States v. Reese, 2 F.3d 870, 895 (9th Cir. 1993). Similarly, both two-level
enhancements for more than minimal planning and for sophisticated means were
proper because acting with sophisticated means, by definition, constitutes
something in addition to merely acting with more than minimal planning. See
United States v. Garro, 517 F.3d 1163, 1169-70 (9th Cir. 2008).
III. Reasonableness
Given the facts of this case and the sentencing factors set forth in 18 U.S.C.
§ 3553(a), Hunter’s sentence was both procedurally and substantively reasonable.
A district court commits procedural error when it miscalculates or fails to
calculate the Guidelines range; treats the Guidelines as mandatory instead of
advisory; fails to consider the § 3553(a) factors; chooses a sentence based on
clearly erroneous facts; or inadequately explains the sentence selected. United
States v. Ressam, 593 F.3d 1095, 1116 (9th Cir. 2010) (citing United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc)). The district court committed
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none of these procedural errors when it imposed a ninety-six month sentence.
Hunter’s sentence was also substantively reasonable under § 3553(a). The
district court provided an adequate explanation, consistent with the § 3553(a)
factors, for rejecting Hunter’s request for a variance based on her mental health as
other individuals with bipolar disease are able to conform their conduct to society’s
norms. See 18 U.S.C. § 3553(a)(2); Ressam, 593 F.3d at 1120.
We also reject Hunter’s argument that her sentence was substantively
unreasonable under § 3553(a)(6) because a similarly situated defendant received a
lower sentence. “The mere fact” that Hunter points to another “defendant convicted
at a different time of a different fraud and sentenced to a term of imprisonment
shorter than [hers] does not create an ‘unwarranted’ sentencing disparity.” See
United States v. Treadwell, 593 F.3d 990, 1012 (9th Cir. 2010). Moreover, because
the district court “correctly calculated and carefully reviewed the Guidelines range,
[it] necessarily gave significant weight and consideration to the need to avoid
unwarranted disparities.” See Gall v. United States, 552 U.S. 38, 54 (2007).
IV. Restitution
Finally, we address Hunter’s argument that the district court lacked a factual
and legal basis for restitution under the Mandatory Victims Restitution Act
(“MVRA”) for ordering restitution to the United States Army Corps of Engineers,
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Martha Johnson, and J. Middleton. Because the basis for the district court’s
restitution order in favor of Johnson and Middleton is unclear from the record, we
remand for additional factual findings on that issue.
A. Restitution to the U.S. Army Corps
We affirm the district court’s restitution order to the U.S. Army Corps. The
record clearly establishes that Hunter never performed any work for the Corps;
instead, she immediately feigned illness to receive wages and donated leave. The
U.S. Army Corps was therefore harmed in the full amount paid to Hunter, $10,086.
See United States v. Peterson, 538 F.3d 1064, 1077–78 (9th Cir. 2008).
B. Restitution to Johnson and Middleton
It is unclear, however, whether the record supports the restitution order in
favor of Johnson and Middleton. See United States v. Waknine, 543 F.3d 546, 556
(9th Cir. 2008). The conduct for which Hunter was convicted was not the false
statements to Johnson and Middleton. Rather, she was convicted for making false
statements to the United States Department of Agriculture (“USDA”) in her loan
application in violation of 18 U.S.C. § 1014. See United States v. Gamma Tech
Indus., Inc., 265 F.3d 917, 927 (2001) (permitting restitution under the MVRA
only when a person suffers a loss that flows “directly” from the “specific conduct
that is the basis of the offense of conviction”) (internal quotations omitted). While
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Johnson and Middleton were likely harmed when the USDA denied Hunter’s loan
application, the only testimony in the record indicates that the USDA did not deny
the loan application due to Hunter’s fraud, but because she lacked sufficient equity
and capital. See Trial Tr., Vol. 2 at 133, 162–167. If the loan was denied for
reasons unrelated to Hunter’s false statements, the causal link between Hunter’s
violation of 18 U.S.C. § 1014 and the harm suffered by Johnson and Middleton
may have been severed. See United States v. Andrews, 600 F.3d 1167, 1171 (9th
Cir. 2010) (“[A] restitution order must be based on losses directly resulting from
the defendant’s criminal conduct.”) (internal quotations omitted); United States v.
Meksian, 170 F.3d 1260, 1263 (9th Cir. 1999) (holding “contaminated nature of
the loan property” caused the alleged victim’s loss, not the defendant’s false
statements under § 1014).
Nevertheless, because the district court did not explain its restitution order
and because we cannot conclude definitively that the record does not contain a
factual basis to support restitution in favor of Johnson and Middleton, we vacate
that restitution order and remand for further proceedings. Our remand, however, is
limited to the issue of restitution, and only as it pertains to Johnson and Middleton.
AFFIRMED in part, VACATED in part, and REMANDED.
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