United States v. Gordon Driver

NOT FOR PUBLICATION FILED
JUN 9 2017
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50475
D.C. No. 2:12-cr-00967-JAK
Plaintiff-Appellee,
v. MEMORANDUM*
GORDON DRIVER,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted May 8, 2017
Pasadena, California
Before: KOZINSKI and OWENS, Circuit Judges, and SETTLE, District Judge**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Benjamin H. Settle, United States District Judge for the
Western District of Washington, sitting by designation.
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1. Driver contends that his conviction for wire fraud constitutes an improper
extraterritorial application of the statute. However, he failed to raise this objection
below, and we therefore review for plain error. United States v. Barragan-
Espinoza, 350 F.3d 978, 981 (9th Cir. 2003) (“[W]e review for plain error alleged
violations of [Rule 11] raised for the first time on appeal.”). Under this standard
of review, Driver fails to show any error of law, much less one that is clear or
obvious. United States v. Walls, 784 F.3d 543, 546 (9th Cir. 2015) (plain error
standard of review). Although Driver claims that the focus of the wire fraud
statute is the scheme to defraud, we held that “[t]he focus of [the mail and wire
fraud statutes] is upon the misuse of the instrumentality of communication.”
United States v. Garlick, 240 F.3d 789, 792 (9th Cir. 2001) (quoting United States
v. Alston, 609 F.2d 531, 536 (D.C. Cir. 1979)). Therefore, we affirm the
conviction.
2. Next, Driver contends that his sentence is procedurally unreasonable and
that the district court’s restitution calculation was flawed because the court
considered foreign conduct in reaching its conclusions. Because Driver also failed
to raise these objections below, we review for plain error. Under this standard,
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Driver has failed to show that any error was clear or obvious. Walls, 784 F.3d at
546. Therefore, we affirm the sentence on procedural grounds.
3. Driver contends that his sentence is substantively unreasonable because
the district court failed to consider all of the mitigating facts submitted in support
of a more lenient sentence. Driver, however, has failed to provide any fact or
argument supporting “a definite and firm conviction” that, in imposing the
guidelines-range sentence, “the district court committed a clear error of judgment.”
United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (quoting United
States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc)).
AFFIRMED.
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