United States v. Debra Clark ( 2019 )

FILED
NOT FOR PUBLICATION
JAN 14 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50211
Plaintiff-Appellee, D.C. No.
2:16-cr-00256-PSG-1
v.
DEBRA CHRISTINE CLARK, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted December 4, 2018
Pasadena, California
Before: O’SCANNLAIN and IKUTA, Circuit Judges, and KENNELLY,** District
Judge.
Defendant Debra Clark appeals the order of restitution entered following her
guilty plea. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
We review Clark’s challenge to the restitution order for plain error. See
United States v. Yijun Zhou, 838 F.3d 1007, 1010 (9th Cir. 2016). Clark is not
entitled to de novo review of her claim even though she objected to the amount of
restitution at sentencing, because her argument on appeal is materially different
than the argument made to the district court. See United States v. Wahid, 614 F.3d
1009, 1013 (9th Cir. 2010); see also Fed. R. Crim. P. 52(b).
The district court erred in awarding $112,996 in restitution because a court
may award restitution under the Mandatory Victims Restitution Act “only for loss
that flows directly from the specific conduct that is the basis of the offense of
conviction.” United States v. May, 706 F.3d 1209, 1214 (9th Cir. 2013) (quoting
United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 927 (9th Cir. 2001))
(internal quotation marks omitted). Here, the specific conduct charged in the
indictment, which was the basis of Clark’s guilty plea, gave rise to losses totaling
only $40,036. The district court’s award of more than $40,036 in restitution was
therefore an error, and the error was plain because it was “clear or obvious under
current law.” United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003).
Further, the district court’s error affected Clark’s substantial rights because she has
shown “a reasonable probability that, but for the error,” the amount of restitution
ordered would have been different. United States v. Dominguez Benitez, 542 U.S.
2
74, 76 (2004). Lastly, the error “seriously affect[ed] the fairness, integrity, or
public reputation of [the] judicial proceedings,” because the district court lacked
the legal authority to order restitution in an amount exceeding the losses caused by
the charges specifically pleaded in the indictment. See United States v. Fu Sheng
Kuo, 620 F.3d 1158, 1164–66 (9th Cir. 2010); see also United States v. Ameline,
409 F.3d 1073, 1102 (9th Cir. 2005) (en banc) (holding that imposition of an
illegal sentence is “a miscarriage of justice” that satisfies the fourth element of the
plain error test). We therefore exercise our discretion to correct a forfeited error,
United States v. Olano, 507 U.S. 725, 732 (1993), and we reverse the district
court’s ruling.
REVERSED.
3
FILED
United States v. Clark, No. 17-50211 JAN 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
IKUTA, Circuit Judge, dissenting:
In a statement submitted to the district court before her guilty plea, at her
change of plea hearing, and at her sentencing hearing, Debra Clark stipulated that
she unlawfully obtained $112,996 from the Social Security Administration. On
appeal, she does not dispute this fact.
Because the specific conduct charged in the indictment gave rise to losses
totaling only $40,036, the district court erred in ordering Clark to pay $112,996 in
restitution. See United States v. May, 706 F.3d 1209, 1214 (9th Cir. 2013).
However, a court’s imposition of a sentence that is inconsistent with the indictment
is not necessarily a plain error if the sentence was based on evidence that “was
overwhelming and essentially uncontroverted.” United States v. Cotton, 535 U.S.
625, 632-33 (2002) (internal quotation marks omitted). Under those
circumstances, the error does not “seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” Rather, the Supreme Court has told us, “[t]he
real threat” to the “fairness, integrity, and public reputation of judicial
proceedings” would be if the defendants, “despite the overwhelming and
uncontroverted evidence,” were to receive a lesser sentence “because of an error
that was never objected to at trial.” Id. at 634.
Because “overwhelming and uncontroverted evidence” supports the district
court’s restitution order here, I would hold that the district court did not plainly err,
and I would affirm the district court. Therefore, I dissent.