United States v. Frank Hightower

FILED
NOT FOR PUBLICATION JUN 21 2012
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. 09-50630
Plaintiff - Appellee, D.C. No. 2:07-cr-00132-GW-3
v.
MEMORANDUM *
FRANK H. HIGHTOWER,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted June 6, 2012
Pasadena, California
Before: B. FLETCHER, WARDLAW, and BYBEE, Circuit Judges.
Frank Hightower was convicted of conspiracy, mail fraud, and wire fraud in
connection with a “back door” advertising scheme, and was sentenced to 51
months’ imprisonment. At sentencing, the district court imposed a 16-level
upward adjustment because the total amount of loss attributed to the entire
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
company was over $1 million, and a 6-level upward adjustment because the total
number of victims was over 250. Hightower appeals, arguing that he should be
held liable only for losses and victims that he dealt with directly. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Hightower argues that the district court erred in attributing to him the losses
and victims of the entire conspiracy, rather than only those for which he was
personally responsible. Specifically, Hightower argues that the district court
overstated the scope of his agreement to work with RAB Publications, Inc.
(“RAB”).
The United States Sentencing Guidelines (“U.S.S.G.”) provide that, in the
case of jointly undertaken criminal activity, a defendant is accountable for “all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). The relevant
determination is “the scope of the criminal activity that the particular defendant
agreed to jointly undertake (i.e., the scope of the specific conduct and objectives
embraced by the defendant’s agreement).” Id. cmt. n.2. To make this finding, we
may look to “any explicit agreement or implicit agreement fairly inferred from the
conduct of the defendant and others.” Id.
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Although Hightower was a low-level participant, he was part of an
interdependent scheme, that relied on cooperation between salespeople and other
employees of RAB. See United States v. Blitz, 151 F.3d 1002, 1012–13 (9th Cir.
1998). Hightower was paid a commission based on successful sales, and thus did
not share in the profits derived from other salesmen, but his success at the
company was dependent on the performance of others. Additionally, Hightower
worked and participated in the scheme for approximately three years, knowing it
was fraudulent from the beginning. Because Hightower was more than just an
independent employee working on his own, and instead was part of an intertwined
scheme, heavily dependent on other RAB personnel, the district court did not err in
finding him accountable for the entire amount of loss and number of victims.
Hightower next contends that the district court erred in not subtracting the
sales he claims were legitimate from the total loss and number of victims. “[I]n
calculating intended loss, the district court should give credit for any legitimate
services rendered to the victims.” Blitz, 151 F.3d at 1012. There is no evidence,
however, that the district court considered the legitimate sales in the calculation of
loss. Additionally, Hightower failed to show that these purportedly legitimate
sales would have any effect on his Guidelines range, and thus his sentence. The
district court found that the loss was over $1 million, and that there were more than
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250 victims. Lowering the loss by two victims, and two legitimate sales, would
not change the applicability of the enhancements. Therefore, the district court did
not plainly err. See United States v. Santiago, 466 F.3d 801, 803 (9th Cir. 2006)
(stating that when a party does not make a specific objection below, we review for
plain error).
Hightower also claims that the restitution order must be vacated and
recalculated because the district court’s Guidelines loss calculation was incorrect.
The district court found that “[t]he defendant will be responsible for paying
restitution. I will list the restitution amount as the restitution of the overall, but that
is obviously a figure that has to be paid by all of the defendants involved in this
case . . . .” The district court derived the figure of over $2 million from
calculations and victims specifically identified in the pre-sentence report. Because
we find that the district court did not err in the application of the sentencing
guidelines and the calculation of loss, we reject Hightower’s request for the
restitution order to be vacated and recalculated.
AFFIRMED.
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