United States v. Frank Cutler

FILED
NOT FOR PUBLICATION JUL 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-50291
14-50293
Plaintiff - Appellee,
D.C. Nos. 2:14-cr-00047-ABC
v. 2:08-cr-01343-ABC
FRANK ERNEST CUTLER, a.k.a. Sidney
Cutler, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
In these consolidated appeals, Frank Ernest Cutler appeals from the district
court’s judgments and challenges the 57-month sentence imposed following his
guilty-plea conviction for wire fraud and aiding and abetting, in violation of 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. §§ 2(a) and 1343, and the 24-month consecutive sentence imposed upon
revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
Cutler contends that the district court erred by applying an adjustment
pursuant to U.S.S.G. § 2B1.1(b)(9)(A). Given Cutler’s admission in his plea
agreement that he told investors his media company was designed to “help
humanity” and that proceeds from the sale of stock would be used to fund
philanthropic projects, the court did not abuse its discretion in applying the
enhancement. See United States v. Treadwell, 593 F.3d 990, 1008 (9th Cir. 2010).
Cutler next contends that the 57-month sentence is substantively
unreasonable because the district court varied upward based on factors already
accounted for by the Guidelines range. He further argues that the sentences should
not have been ordered to run consecutively because they are predicated on the
same conduct, and that the 81-month aggregate sentence is substantively
unreasonable in light of his age, his health problems, and the allegedly small loss
amount. We disagree. The court did not err by varying upward based upon its
determination that the Guidelines range did not adequately account for the
egregiousness of Cutler’s conduct or criminal history. See United States v.
Christensen, 732 F.3d 1094, 1100-01 (9th Cir. 2013) (court may vary upward
2 14-50291 & 14-50293
based on factors already incorporated into the Guidelines calculations). Moreover,
the Guidelines contemplate that revocation sentences are to run consecutively to
any other sentence of imprisonment, see U.S.S.G. § 7B1.3(f), and the sentences are
substantively reasonable in light of the applicable sentencing factors and the
totality of the circumstances, including Cutler’s extensive criminal history, his
failure to be deterred by prior sentences, and the need for protection of the public.
See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Simtob, 485
F.3d 1058, 1063 (9th Cir. 2007) (when a defendant violates supervised release by
committing the same offense for which he was placed on supervised release,
“greater sanctions may be required to deter future criminal activity”).
Finally, Cutler contends that the district court erred by overruling his
objection to the presentence report on the ground that it incorrectly stated the date
of his arrest for the new criminal case. Contrary to his contention, the record
reflects that Cutler was arrested in the new case on January 27, 2014. The Bureau
of Prisons, not the sentencing court, is responsible for calculating credit for time
served. See United States v. Lualemaga, 280 F.3d 1260, 1265 (9th Cir. 2002).
AFFIRMED.
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