United States v. Colin Nathanson

FILED
NOT FOR PUBLICATION DEC 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50422
Plaintiff - Appellee, D.C. No. 8:05-cr-00301-CJC-1
v.
MEMORANDUM*
COLIN NATHANSON,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted November 1, 2010
Pasadena, California
Before: GOODWIN and RAWLINSON, Circuit Judges, and ZOUHARY, District
Judge.**
Pursuant to a plea agreement, Appellant Colin Nathanson (Nathanson) pled
guilty to six counts of mail fraud based on a scheme to defraud investors in his
companies. Nathanson challenges his sentence of 324 months’ imprisonment.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
1. The district court did not err in imposing a two-level enhancement based on
Nathanson’s violation of prior administrative orders. Nathanson admitted violating
several cease and desist orders precluding him from selling unregistered securities.
See United States v. Brigham, 447 F.3d 665, 670 (9th Cir. 2006); see also U.S.S.G.
§ 2B1.1(b)(8)(C)(2008).
2. The district court properly applied a four-level enhancement to Nathanson’s
sentence premised on his leadership role in the scheme to defraud. Nathanson’s
plea agreement establishes that Nathanson served as the chief executive officer of
the companies involved in the scheme to defraud and was responsible for the
operation and management of the Nathanson Investment Trust and its accounts;
directly communicated to investors fraudulent information concerning their
investments; and organized the scheme to defraud with a criminally culpable
business partner. See United States v. Govan, 152 F.3d 1088, 1096 (9th Cir. 1998)
(explaining the facts the district court may consider). Despite Nathanson’s
argument that he did not organize or lead another criminally culpable participant,
this enhancement may be applied without an express finding of such conduct
where the defendant “nevertheless exercised management responsibility over the
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property, assets, or activities of a criminal organization.” U.S.S.G. § 3B1.1 cmt.
n.2 (2008).
3. The district court did not err in applying a two-level enhancement for abuse
of trust. The plea agreement established that Nathanson personally encouraged
investors to invest in his fraudulent scheme; personally informed investors that he
had the discretion and knowledge to properly invest their funds; and fraudulently
withdrew the investors’ funds from a trust purportedly established to protect the
investments. See United States v. Contreras, 581 F.3d 1163, 1165 (9th Cir. 2009),
adopted in relevant part by United States v. Contreras, 593 F.3d 1135, 1136 (9th
Cir. 2010) (en banc); see also United States v. Thornton, 511 F.3d 1221, 1227-28
(9th Cir. 2008) (noting that for the enhancement to apply, “[t]he position need not
be that of a fiduciary”) (citation omitted).
The district court’s application of the abuse of trust enhancement did not
constitute impermissible double counting. See United States v. Laurienti, 611 F.3d
530, 556 (9th Cir. 2010) (“Where the abuse-of-trust consideration is not included
in the base offense level, no unfairness results.”) (emphasis in the original).
4. The district court properly applied the obstruction of justice enhancement
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based on Nathanson’s perjury in a declaration in support of a motion to quash a
subpoena from the Securities and Exchange Commission. See United States v. Yip,
592 F.3d 1035, 1042 (9th Cir. 2010).
5. The district court complied with Federal Rule of Criminal Procedure 32
because the district court considered Nathanson’s objections to the presentence
report that were necessary for sentencing, determining that Nathanson’s additional
objections did not impact his sentence, see Fed. R. Crim. P. 32(i)(3)(B), and
adopted the government’s position. See United States v. Doe, 488 F.3d 1154, 1158
(9th Cir. 2007) (“[T]he rule is complied with where the district court expressly
adopts the position of either party to the dispute.”).
6. Nathanson’s sentence was substantively reasonable, as the district court fully
considered the 18 U.S.C. § 3553(a) factors, Nathanson’s letters and certificates, the
applicable enhancements, and Nathanson’s conduct before imposing a within-
Guidelines sentence. See United States v. Chavez, 611 F.3d 1006, 1011 (9th Cir.
2010) (“Where judge and the Sentencing Commission both determine that the
Guidelines sentence is an appropriate sentence for the case at hand, that sentence
likely reflects the § 3553(a) factors including its not greater than necessary
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requirement.”) (citation, alterations, parentheses, and internal quotation marks
omitted) (emphasis in the original).
AFFIRMED.
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