United States v. James Herrera

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50181
Plaintiff-Appellee,
D.C. No.
v. 2:15-cr-00499-
JAK-2
JAMES MANUEL HERRERA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted May 13, 2020 *
Pasadena, California
Filed September 9, 2020
Before: Kim McLane Wardlaw, Deborah L. Cook, ** and
Danielle J. Hunsaker, Circuit Judges.
Opinion by Judge Hunsaker
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Deborah L. Cook, Senior United States Circuit
Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by
designation.
2 UNITED STATES V. HERRERA
SUMMARY ***
Criminal Law
The panel affirmed a sentence for mail fraud arising from
a lucrative unemployment-fraud scheme from which the
defendant and his brother collected millions of dollars.
Reviewing for plain error, the panel held that it was not
error for the district court to apply the 18-level enhancement
set forth in U.S.S.G. § 2BG1.1(b)(1)(J) for losses exceeding
$3.5 million, which was supported by the evidence, despite
the district court’s misstatement that it was imposing a 16-
level enhancement.
The panel held that the district court did not abuse its
discretion in imposing a leadership-role enhancement under
U.S.S.G. § 3B1.1(b).
Addressing a question of first impression in this circuit,
the panel held that state government agencies who suffer
losses that are included in the actual loss calculation under
U.S.S.G. § 2B1.1(b)(1) are properly counted as victims for
purposes of the number-of-victims enhancement in U.S.S.G.
§ 2B1.1(b)(2)(A)(I). The panel concluded that the district
court did not err in applying the enhancement for “10 or
more victims” because there can be no doubt that EDD
suffered losses, and it is undisputed that if EDD was properly
counted as a victim, the enhancement applies.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HERRERA 3
COUNSEL
David J. Kaloyanides, David J.P. Kaloyanides APLC,
Chino, California, for Defendant-Appellant.
Nicola T. Hanna, United States Attorney; L. Ashley Aull,
Chief, Criminal Appeals Section; Ranee A. Katzenstein,
Chief, Major Frauds Section; United States Attorney’s
Office, Los Angeles, California; for Plaintiff-Appellee.
OPINION
HUNSAKER, Circuit Judge:
James Herrera pleaded guilty, without a plea agreement,
to one count of mail fraud in violation of 18 U.S.C. § 1341.
He now challenges the sentence the district court imposed.
Specifically, he argues the district court miscalculated the
amount-of-loss enhancement and improperly imposed the
leadership-role and number-of-victims enhancements. We
affirm.
I. BACKGROUND
A. The Fraudulent Scheme
Herrera and his brother Jack Hessiani developed a
lucrative unemployment-fraud scheme from which they
collected millions of dollars. Beginning in January 2011,
they registered multiple fictitious companies for which they
filed wage reports with the California Employment
Development Department (EDD), reporting earnings for
fictitious employees. The brothers then filed unemployment
benefit claims related to the fictitious employees, calculating
the amount of benefits due based on the filed wage reports.
4 UNITED STATES V. HERRERA
To perpetuate their scheme, Herrera and Hessiani
recruited participants to pose as “employees.” Recruits
opened post office mailboxes to receive the unemployment
payments, but the brothers kept the mailbox keys to control
the incoming funds. Recruits received a portion of the
unemployment payments for their participation.
Herrera managed day-to-day operations of the scheme.
He communicated with recruits to get their necessary
personal information and schedule meets to distribute
payments. He taught co-defendant Daniel Ayala-Mora
(Ayala-Mora) how to register the fake companies, input
wage information into the EDD system, and file
unemployment claims. 1 He also gave Ayala-Mora mailbox
keys and unemployment debit cards so Ayala-Mora could
collect the unemployment funds. Herrera expanded Ayala-
Mora’s duties as the scheme progressed.
The brothers’ luck ran out in May 2014 when EDD
received an anonymous complaint through its fraud hotline
that launched an investigation into the scheme. Police
surveilled the participants, and in May 2015, Ayala-Mora
was stopped for running a red light. Officers searched his car
and found 34 envelopes containing unemployment
statements and benefits for various people. Herrera’s house
was also searched, and officers found 41 mailbox keys.
Shortly thereafter, federal authorities got involved in the
investigation, and a federal grand jury indicted Herrera on
17 criminal charges.
1
Ayala-Mora pleaded guilty to his involvement in the scheme
pursuant to a plea agreement.
UNITED STATES V. HERRERA 5
B. Herrera’s Plea and Sentencing
In January 2019, Herrera pleaded guilty to one count of
mail fraud, in violation of 18 U.S.C. § 1341, without having
reached a plea agreement with the government. The
Presentence Report (PSR) prepared for the district court
identified the Sentencing Guidelines’ base offense level of 7
for mail fraud, and recommended numerous enhancements.
Three are relevant here: (1) an 18-level enhancement for
losses exceeding $3.5 million, U.S.S.G. § 2B1.1(b)(1)(J);
(2) a 3-level enhancement for having a leadership role in the
scheme, U.S.S.G. § 3B1.1(b); and (3) a 2-level enhancement
because there were ten or more victims of the scheme,
U.S.S.G. § 2B1.1(b)(2)(A)(i). The PSR calculated the total
offense level at 31 for a recommended Guidelines range of
108–135 months and recommended a within-Guidelines
sentence. The PSR also recommended imposing $4,861,038
in restitution—$3,960,962 payable to EDD and $900,076
payable to the United States Department of the Treasury.
Herrera objected to the PSR. He argued the amount-of-
loss enhancement should be 16-levels not 18-levels because
the losses were less than $3.5 million. U.S.S.G.
§ 2B1.1(b)(1)(I). He also argued the leadership-role
enhancement was unlawful because his brother was the
leader and organizer of the scheme and the evidence did not
“support a finding that [he] was any type of manager who
directed, instructed, controlled or ordered anyone else to act
in any specific way.” He conceded, however, that
“[a]rguably [he] could be said to have directed or supervised
Ayala-Mora.” Finally, Herrera argued the number-of-
victims enhancement should not have been imposed because
EDD was not properly counted as a victim as “it did not
suffer any loss itself.” While acknowledging EDD paid out
6 UNITED STATES V. HERRERA
money on fraudulent unemployment claims, Herrera’s
counsel argued at sentencing:
that doesn’t make [EDD] the victim . . . . The
EDD is collecting the money from these
individuals through various taxing [sic] and,
therefore, is just funneling it out. So I don’t
think it really constitutes a victim in and of
itself . . . . The EDD doesn’t have its own
money . . . . It’s taking it from the taxpayers.
The district court rejected Herrera’s arguments.
Regarding the amount-of-loss enhancement, the district
court concluded:
I think that – even if I accepted the
defendant’s figure of approximately
$3 million, it doesn’t include the federal loss
of approximately $900,000, which would
make the number more than $3.5 million. So
. . . I think that either by applying the more
recent evidence, which I think is appropriate,
or by not doing so, but applying the federal
loss, I think it’s correct to apply the 16 levels
under 2B1.1(B)(1)(J).
The guidelines subsection cited by the district court provides
for an 18-level enhancement where losses exceed
$3.5 million, not a 16-level enhancement as the district court
stated. Compare U.S.S.G. § 2B1.1(B)(1)(J) (imposing an
18-level enhancement for mail fraud offenses when losses
exceed $3.5 million), with U.S.S.G. § 2B1.1(B)(1)(I)
(imposing a 16-level enhancement for mail fraud offenses
when losses exceed $1.5 million). But neither party objected
to the district court’s misstatement.
UNITED STATES V. HERRERA 7
The district court also found the evidence supported the
leadership-role enhancement, noting Herrera’s oversight of
Ayala-Mora and recruitment of other participants. Finally,
the district court imposed the number-of-victims
enhancement, concluding that both EDD and the United
States Treasury were victims.
Based on its findings, the district court calculated the
total offense level as 29 and sentenced Herrera to 84 months.
When it announced the sentence, the district court
summarized: “The base offense level is 7. The specific
offense characteristics increase that by 22 levels. The role in
the offense by an additional 3, which gives a subtotal of 32.
Reduced by 3 for acceptance of responsibility to 29.” The
22-level specific offense enhancement calculation breaks
down as follows: an 18-level enhancement for losses greater
than $3.5 million, a 2-level number-of-victims enhancement,
and a 2-level sophisticated-means enhancement. 2
The recommended sentence for a level 29 offense with
Herrera’s criminal history category of I is 87–108 months.
U.S.S.G. ch. 5, pt. A. After evaluating the sentencing factors
under Section 3553(a), the district court varied below the
guideline range and sentenced Herrera to 84 months. The
district court also ordered restitution for EDD and the United
States Treasury. Herrera appealed the amount-of-loss,
leadership-role, and number-of-victims enhancements.
2
Herrera does not challenge the sophisticated-means enhancement
on appeal.
8 UNITED STATES V. HERRERA
II. DISCUSSION
A. Standards of Review
Plain error review applies to sentencing objections first
raised on appeal. United States v. Wang, 944 F.3d 1081,
1089 (9th Cir. 2019). For those issues raised to the district
court, we review the district court’s selection and
interpretation of the Sentencing Guidelines de novo and its
application of the guidelines to the facts for an abuse of
discretion. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170
(9th Cir. 2017) (en banc). Only guideline applications that
are “illogical, implausible, or without support in inferences
that may be drawn from facts in the record” are an abuse of
discretion. Id. at 1175 (quoting United States v. Hinkson, 585
F.3d 1247, 1251 (9th Cir. 2009) (en banc)).
B. Amount-of-Loss Enhancement
Herrera did not object below that the district court
miscalculated his sentence by applying an 18-level amount-
of-loss enhancement, and we review this issue for plain
error. See United States v. Campbell, 937 F.3d 1254, 1256–
57 (9th Cir. 2019) (explaining that a “request to consider a
position does not equate to an objection” to the sentence
imposed). Thus, we grant relief only if the district court
committed an error that is “plain” and “affect[ed] substantial
rights.” United States v. Olano, 507 U.S. 725, 731–32 (1993)
(quoting Fed. R. Crim. P. 52(b)). Herrera bears the burden
of showing to a reasonable probability that the asserted error
adversely affected his sentence. See Wang, 944 F.3d at 1089
(citation omitted). Typically, a defendant satisfies this
burden “by pointing to the application of an incorrect, higher
Guidelines range and the sentence he received thereunder.”
Id. (quoting Molina-Martinez v. United States, 136 S. Ct.
1338, 1347 (2016)). If this burden is satisfied, the court may
UNITED STATES V. HERRERA 9
exercise its discretion to correct errors that “seriously
affect[] the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1085 (citation and quotation omitted).
Here, the district court merely misstated the amount-of-
loss enhancement. After considering the parties’ evidence
and arguments, the district court found that the losses
exceeded $3.5 million. The evidence supports this finding.
Losses exceeding $3.5 million merit an 18-level
enhancement. U.S.S.G. § 2B1.1(b)(1)(J). The district court
cited the correct sentencing provision but incorrectly stated
it was imposing a 16-level enhancement. Despite this
misstatement, it was not error for the district court to apply
the 18-level enhancement.
C. Leadership-Role Enhancement
Herrera next argues the evidence does not support
imposition of a leadership-role enhancement under U.S.S.G.
§ 3B1.1(b). This enhancement is proper where the
preponderance of evidence shows the defendant supervised
or exercised some degree of control over at least one
participant in an extensive criminal scheme. U.S.S.G.
§ 3B1.1(b) cmt. n. 2; 3 see United States v. Gagarin, 950 F.3d
596, 606–07 (9th Cir. 2020). The factors courts must
consider, among others include: (1) authority and control
over participants, (2) planning and strategic decision-making
power, (3) accomplice recruitment, and (4) overall
participation in the scheme. U.S.S.G. § 3B1.1(b) cmt. n. 4.
3
The Sentencing Application Notes serve to interpret and explain
the guidelines and are “authoritative unless [they] violate[] the
Constitution or a federal statute, or [are] inconsistent with, or a plainly
erroneous reading of, that guideline.” United States v. Prien-Pinto,
917 F.3d 1155, 1157 (9th Cir.), cert. denied, 140 S. Ct. 172 (2019)
(citation and quotation omitted).
10 UNITED STATES V. HERRERA
This enhancement does not apply to participants who, while
“integral to the success of the criminal enterprise,” exercised
no power to influence or coordinate other participants.
United States v. Doe, 778 F.3d 814, 825–26 (9th Cir. 2015)
(citation and quotation omitted). Nor does it apply if the
defendant was a “co-equal conspirator” with the allegedly
subordinate participant. Gagarin, 950 F.3d at 606–07.
Herrera argues that he was a co-equal participant with
Ayala-Mora and exercised no control over other participants.
As the district court found, the facts tell a different story.
Ayala-Mora stated that Herrera trained him and provided
detailed instructions directing his activities. Herrera taught
Ayala-Mora how to register companies with EDD, input
false wages, and file unemployment claims. Herrera’s
control over Ayala-Mora was also continuous. For example,
Herrera selected the mailbox keys to give to Ayala-Mora
each week so Ayala-Mora could pick up unemployment
disbursements rather than letting Ayala-Mora manage this
activity on his own. While Herrera and Ayala-Mora both
took direction from Hessiani, that does not necessitate the
conclusion that they were co-equal conspirators. See id.
at 607 (explaining that two participants taking instructions
from a third did not make them “co-equal conspirators”
because there may be more than one leader or organizer).
Likewise, even though Herrera and Ayala-Mora received
equal proceeds from the scheme, that does not negate that
Herrera “guided [Ayala-Mora] through actions to further the
conspiracy.” Id. Indeed, Herrera acknowledged “he could be
said to have directed or supervised Ayala-Mora.”
Herrera’s supervision of others was also not limited to
Ayala-Mora. Three other participants stated Herrera was
their contact within the scheme, filed fraudulent claims for
them, controlled their mailboxes, and set up meets to
UNITED STATES V. HERRERA 11
disburse payments. Herrera also played a significant role in
planning and operating the scheme. He formed fictitious
companies, opened mailboxes in others’ names, received
checks and debit cards for fraudulent claimants, and directed
fund disbursement. And he recruited new participants.
On this record, we conclude the district court did not
abuse its discretion by imposing the leadership-role
enhancement. See id. at 606. Herrera was a leader within the
unemployment-fraud scheme, and he was properly treated as
such at sentencing.
D. Number-of-Victims Enhancement
Finally, Herrera argues the district court erred by
counting EDD as a victim for purposes of the number-of-
victims enhancement imposed under § 2B1.1(b)(2)(A)(i).
Whether the definition of “victim” under § 2B1.1 includes a
state government agency is a question of first impression in
this circuit that we review de novo. 4 See Gasca-Ruiz,
852 F.3d at 1170. To answer this question we begin as we do
for all questions of statutory interpretation, by turning to the
text. United States v. Martinez, 870 F.3d 1163, 1166 (9th Cir.
2017). In interpreting the text, we look at the structure of the
guidelines as a whole to understand the provision in context.
See id.; Friends of Animals v. U.S. Fish & Wildlife Serv.,
879 F.3d 1000, 1006 (9th Cir.) (“Interpretation of legal text
‘is a holistic endeavor,’ and a ‘provision that may seem
ambiguous in isolation is often clarified by the remainder of
the . . . scheme . . . .” (quoting United Sav. Ass’n of Tex. v.
Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371
(1988))), cert. denied sub nom. Friends of Animals v. Fish &
4
Herrera challenges only EDD being counted as a victim under the
§ 2B1.1(b)(2)(A)(i) enhancement, not the United States Treasury.
12 UNITED STATES V. HERRERA
Wildlife Serv., 138 S. Ct. 2628 (2018). For further
understanding we may also consider the provision’s history,
purpose, and the reasons for any relevant amendments.
Martinez, 870 F.3d at 1166.
1. Text
The Sentencing Guidelines’ text is interpreted “using the
ordinary tools of statutory interpretation.” Id. The
commentary and Application Notes provide authoritative
guidance on understanding the guidelines, so long as the
interpretation does not conflict with governing law. See
Stinson v. United States, 508 U.S. 36, 38 (1993). Canons of
statutory construction can also guide the interpretation. See
United States v. Soberanes, 318 F.3d 959, 963 n.4 (9th Cir.
2003) (“We use traditional canons of statutory construction
to interpret the sentencing guidelines.”) (citing United States
v. Gonzalez, 262 F.3d 867, 869 (9th Cir. 2001) (per curiam)).
Section 2B1.1(b)(2)(A)(i) of the guidelines provides a 2-
level enhancement for mail fraud offenses “involv[ing] 10 or
more victims.” As relevant here, the Application Notes for
§ 2B1.1 define “victim” as “any person who sustained any
part of the actual loss determined.” 5 U.S.S.G. § 2B1.1 cmt.
n.1; see also United States v. Brown, 771 F.3d 1149, 1162
(9th Cir. 2014) (counting as victims only those whose losses
are included in the loss calculation). The Application Notes
further specify that “‘Person’ includes individuals,
corporations, companies, associations, firms, partnerships,
societies, and joint stock companies.” U.S.S.G. § 2B1.1 cmt.
n.1. This list of entities does not expressly include
5
While not relevant to this appeal, “any individual whose . . .
identification was used unlawfully is also a victim.” Id. § 2B1.1 cmt.
n.4(E).
UNITED STATES V. HERRERA 13
government entities or agencies, but it also does not
expressly exclude them. See id.
It cannot be disputed that government entities sometimes
suffer losses from the types of fraudulent conduct that
§ 2B1.1 addresses. Indeed, the Application Notes for
§ 2B1.1 provide specific direction for calculating
government loss: “In a case involving government benefits
(e.g., grants, loans, entitlement program payments), loss
shall be considered to be not less than the value of the
benefits obtained by unintended recipients, or diverted to
unintended uses, as the case may be.” Id. § 2B1.1 cmt.
n.3(F)(ii). In reference to § 2B1.1, we have previously
explained that “[o]nce a loss amount is included in the loss
calculation, then the person associated with that loss should
also be included in the victim calculation.” United States v.
Armstead, 552 F.3d 769, 783 (9th Cir. 2008). Thus, the
question here is whether the definition of “victim” for
§ 2B1.1, which does not include government entities in its
list of various entities that may be counted as victims, must
be interpreted to exclude government entities regardless of
whether they suffer loss included in the loss calculation.
Traditional statutory interpretation principles hold that
where a definitional list designates certain things, “all
omissions should be understood as exclusions.” Silvers v.
Sony Pictures Entm’t, Inc., 402 F.3d 881, 885 (9th Cir. 2005)
(en banc) (citation and quotation omitted). This would seem
to imply that government agencies may be excluded from the
number-of-victims enhancement. See U.S.S.G. § 2B1.1 cmt.
n.1. But an exception to this principle is the “presumption of
nonexclusive ‘include.’” See Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 132
(2012). This presumption holds that “the word include does
not ordinarily introduce an exhaustive list.” Id. We have
14 UNITED STATES V. HERRERA
applied this principle in previous cases. See United States v.
Wyatt, 408 F.3d 1257, 1261 (9th Cir. 2005) (“The use of the
word ‘includes’ suggests the list is non-exhaustive rather
than exclusive.”); United States v. Hockings, 129 F.3d 1069,
1071 (9th Cir. 1997) (concluding definitional list using
“includes” was “not drafted as an exhaustive list”). 6 Because
the Application Notes use “include” before introducing the
list of entities that are “persons” for purposes of the number-
of-victims enhancement, the presumption is that the list is
providing only examples from a larger group, of which
government agencies may be part. See Scalia & Garner,
Reading Law: The Interpretation of Legal Texts 132 & n. 1.
2. Context
Viewing § 2B1.1’s definition of “victim” in the larger
context of the guidelines further supports this conclusion. As
mentioned, the Application Notes for § 2B1.1 specifically
contemplate that loss can be suffered by government entities.
U.S.S.G. § 2B1.1 cmt. n.3(F)(ii). This indicates that
government entities are properly considered victims given
that “victim” is defined in terms of those who suffer loss. Id.
§ 2B1.1 cmt. n.1.
Other sections of the guidelines (and their accompanying
notes) expressly provide that certain enhancements do not
apply when “the only victim is an organization, agency, or
the government.” Id. § 3A1.2 cmt. n.1 (emphasis added).
6
Indeed, in a recent unpublished decision this court held that
“victim,” as defined in § 2B.1.1 for the number-of-victims enhancement,
is not an exhaustive list. See United States v. Wells, 804 F. App’x 515,
518 (9th Cir. 2020) (“[T]he district court properly included merchants
and payment processors in its count of total victims because the
Sentencing Guidelines do not require that the ‘victims’ be financial
institutions for the enhancement to apply.”)
UNITED STATES V. HERRERA 15
The presence of those provision suggests that failing to
exclude government entities in the definition of “victim” in
§ 2B1.1 was intentional, and it also indicates that, as a
general matter, unless stated otherwise, the government is
properly considered a victim for sentencing purposes. See
Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006) (noting it is
well-accepted that “a negative inference may be drawn from
the exclusion of language from one statutory provision that
is included in other provisions of the same statute”); cf.
United States v. McDuffy, 890 F.3d 796, 800 (9th Cir. 2018)
(“[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”
(alteration in original) (citation and quotation marks
omitted)), cert. denied, 139 S. Ct. 845 (2019).
3. Amendment History
The history of the number-of-victims enhancement is
consistent with, if not also supportive, of this conclusion.
Section 2B1.1 was substantially amended in 2001 when the
guidelines for theft and fraud crimes were consolidated.
U.S.S.G. App. C. at 127–47 (Amend. 617). Prior to 2001,
§ 2F1.1 addressed fraud-based crimes and provided a 2-level
enhancement for schemes that defrauded more than one
victim, and § 2B1.1 addressed theft-based crimes and
provided enhancements for crimes involving “more than 10,
but less than 50, victims” and crimes involving more than
50 victims. Id. The notes for § 2F1.1 stated that a “victim” is
“the person or entity from which the funds are to come
directly.” Id. App. C. at 138–39 (Amend. 617). The notes for
§ 2B1.1 included the definition of “victim” currently before
the court, including the list of entities that are considered a
16 UNITED STATES V. HERRERA
“person.” Id. § 2B1.1 cmt. n.3(A)(ii) (U.S. Sentencing
Comm’n 2002).
Construing the definition of “victim” in § 2F1.1, some of
our sister circuits determined it included government
agencies. United States v. Reyes, 908 F.2d 281, 288–89 (8th
Cir. 1990); United States v. Aramony, 166 F.3d 655, 663 (4th
Cir. 1999) (citing Reyes). In Reyes, not only did the Eighth
Circuit hold that government agencies are victims for
purposes of the enhancement, but it also held that multiple
government agencies with distinct interests are properly
counted as separate victims. 908 F.2d at 288–89. In reaching
this conclusion, the Eighth Circuit noted that § 2F1.1 defined
“victim” broadly to include entities and, like the current
language, did not expressly exclude government entities as
is found in other provisions in the guidelines. Id. at 288
(comparing § 2F.1.1 with § 3A1.2 cmt. n.1).
When the guidelines for fraud crimes were consolidated
into § 2B1.1, the enhancement for defrauding more than one
victim and the definition of “victim” included in the § 2F1.1
notes were removed, while the number-of-victim
enhancements in § 2B1.1 and its definition of “victim” were
retained. U.S.S.G. App. C. at 173 (Amend. 617); see id.
§ 2B1.1 cmt. n.3(A)(ii) (U.S. Sentencing Comm’n 2002). In
explaining the consolidation, the Commission did not
address why the definition in § 2B1.1 was chosen over the
definition in § 2F1.1. Id. App. C. at 172–82 (Amend. 617).
Two years later, § 2B1.1 and its Application Notes were
again amended to incorporate numerous directives from the
Sarbanes-Oxley Act of 2002. Id. App. C. at 290 (Amend.
647). These amendments included moving the definition of
“victim” into the definitions section of the Application
Notes, where it is currently located. Id. App. C. at 286
UNITED STATES V. HERRERA 17
(Amend. 647). The language of the definition, however, was
not changed. Id.
By amending § 2B1.1, including the 2001 consolidation
of enhancements for theft and fraud-based crimes, we
assume the Sentencing Commission was aware of the prior
judicial decisions interpreting “victim” for purposes of the
number-of-victims enhancement for fraud-based crimes to
include government agencies. See United States v. Alvarez-
Hernandez, 478 F.3d 1060, 1065–66 (9th Cir. 2007).
Moreover, continuing with broad language and structure
after amendment indicates the Commission did not intend to
draft around the prior judicial interpretations. See id. (citing
Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit,
547 U.S. 71, 85–86 (2006)).
Perhaps it could be argued that the Commission, by
deleting the definition of “victim” from § 2F1.1 and
retaining the language from § 2B1.1, intended to avoid the
circuits’ interpretation of “victims” as including government
agencies. Yet the Commission frequently references circuit
authority interpreting provisions and definitions in
explaining its amendments. See, e.g., U.S.S.G. App. C.
at 181 (Amend. 617) (explaining that other provisions will
retain a definition because “the existing definition has not
proven problematic for cases sentenced under these
guidelines” and amending to “resolve[ ] a circuit conflict”);
id. App. C. at 173–82 (Amend. 617) (explaining multiple
amendments were intended to resolve circuit splits or nullify
specific judicial decisions). The Commission made no such
reference to the relevant judicial decisions discussed herein.
Thus, it is at least as reasonable, particularly in light of the
text and context previously discussed, to infer from the
amendment history that the Commission was aware of the
prior judicial decisions counting government agencies as
18 UNITED STATES V. HERRERA
victims for the number-of victims enhancement and did not
intend to undermine those decisions. See Alvarez-
Hernandez, 478 F.3d at 1065–66.
4. Comparison to Restitution Statute
Finally, while we recognize that restitution and
sentencing serve different purposes, United States v. Gossi,
608 F.3d 574, 579–80 (9th Cir. 2010), the definition of
“victim” for purposes of ordering restitution as part of
sentencing affords persuasive comparison value. The
Mandatory Victims Restitution Act (MVRA) defines
“victim” to include “any person directly harmed by the
defendant’s criminal conduct.” 18 U.S.C. § 3663A(a)(2).
Every circuit that has considered the issue has concluded that
government entities can be victims for purposes of
restitution. United States v. Lincoln, 277 F.3d 1112, 1114
(9th Cir. 2002) (explaining the MVRA “construes the term
‘victim’ broadly” and includes government agencies
(citation and quotation omitted)); see also United States v.
Martin, 128 F.3d 1188, 1191 (7th Cir. 1997) (listing cases in
other circuits and holding that it is a “settled view . . .
supported by an unwavering line of precedent from other
federal courts of appeals” that government agencies can be
victims for restitution). As an arm of the government, an
agency “stands in the shoes” of the victims—the taxpayers
whose money is lost through fraudulent payments. See
United States v. Ruffen, 780 F.2d 1493, 1496 (9th Cir. 1986).
We see no reason why a government agency should qualify
as a victim for restitution but not for a victim-related
sentencing enhancement if it otherwise meets the loss
definition.
Therefore, for all the reasons discussed, we hold that
state government agencies who suffer losses that are
included in the actual loss calculation under § 2B1.1(b)(1)
UNITED STATES V. HERRERA 19
are properly counted as victims for purposes of the number-
of-victims enhancement in § 2B1.1(b)(2)(A)(i).
In light of this conclusion, our final question is whether
the district court properly counted EDD as a victim in this
case. As discussed, EDD is only a victim under the number-
of-victims enhancement if it suffers losses that are included
in the district court’s actual loss calculation. U.S.S.G.
§ 2B1.1 cmt. n.1; Armstead, 552 F.3d at 780–81. There can
be no doubt that EDD suffered losses. See U.S.S.G. § 2B1.1
cmt. n.3(F)(ii) (explaining that losses can be government
benefits paid to unintended recipients). Indeed, Herrera
conceded that receiving distributions from tax-paying
companies for fictitious employees of fictitious companies
that did not pay taxes “result[ed] in a loss to EDD.”
Moreover, EDD’s losses, along with the losses suffered by
the United States Treasury, were the only calculations the
district court used to determine the amount of actual loss.
Thus, because it is undisputed that if EDD was properly
counted as a victim, the sentencing enhancement for “10 or
more victims” was properly applied, we conclude the district
court did not err in applying this enhancement to calculate
Herrera’s sentence.
III. CONCLUSION
The district court did not plainly err in calculating the
loss-enhancement, nor did it abuse its discretion in applying
the leadership-role enhancement. Likewise, the district court
correctly applied the number-of-victims enhancement
because EDD is properly considered a victim under
§ 2B1.1(b)(2)(A)(i).
AFFIRMED.