United States v. Joshua Hester

FILED
NOT FOR PUBLICATION SEP 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50330
Plaintiff - Appellee, D.C. No. 3:10-cr-02967-IEG-1
v.
MEMORANDUM*
JOSHUA JOHN HESTER,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Senior District Judge, Presiding
Argued and Submitted July 10, 2014
Submission Withdrawn and Deferred July 11, 2014
Resubmitted September 12, 2014
Pasadena, California
Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.
Joshua John Hester (Hester) appeals from the district court’s restitution
order entered in favor of JP Morgan Chase Bank (Chase) and
CitiGroup/CitiMortgage (Citi). The underlying drug trafficking scheme involved
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
two properties relevant to this appeal—the Rancho Santa Fe property and the
Palomar property. See United States v. Luis, No. 13-50020, —F.3d—, 2014 WL
4236390, at *1 (9th Cir. Aug. 28, 2014).
The district court correctly determined that the Mandatory Victim
Restitution Act (MVRA) required Hester and his co-defendant Marco Luis (Luis)
to pay restitution for offenses against property. See id. Chase and Citi each
qualified as a “victim” entitled to restitution under the MVRA. Id. However, in
calculating restitution as to the Rancho Santa Fe property, and without the benefit
of our recent Luis decision, “the district court erred by calculating restitution based
on the unpaid principal loan balance rather than the value of the loans when Chase
purchased them. . . . ” Id. at *4. On remand, the district court should use the
formula for a loan purchaser rather than for a loan originator. See id. at *4-*5.
Therefore, “Yeung1 compels us to vacate the restitution order with respect to the
Rancho Santa Fe property loan calculation and remand so the district court may
recalculate Chase’s loss, based on how much Chase paid for the fraudulent loans
(or the value of the loans when Chase acquired them).” Id. at *5 (citation,
1
United States v. Yeung, 672 F.3d 594 (9th Cir. 2012), overruled in part on
other grounds by Robers v. United States, 134 S. Ct. 1854 (2014).
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alterations, and internal quotation marks omitted). No similar abuse of discretion
occurred in calculating restitution for the Palomar property loans. See id.2
We also reject Hester’s argument that the district court’s restitution order
should be reversed because it was untimely. Although 18 U.S.C. § 3664(d)(5)
requires that a final determination of victims’ losses be made within ninety days of
sentencing, that provision is for the benefit of victims, not defendants. See United
States v. Marks, 530 F.3d 799, 811-12 (9th Cir. 2008). Absent a showing of
prejudice resulting from the delay, any error was harmless. See United States v.
Moreland, 622 F.3d 1147, 1173 (9th Cir. 2010).
AFFIRMED IN PART, VACATED and REMANDED IN PART.
2
While Hester also alleges error under Apprendi v. New Jersey, 530 U.S.
466 (2000), he concedes that United States v. Green, 722 F.3d 1146 (9th Cir.
2013), forecloses this argument.
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