United States v. Ross Farca ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10184
Plaintiff-Appellee, D.C. No.
4:19-cr-00643-JST-1
v.
ROSS ANTHONY FARCA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Submitted October 18, 2021**
San Francisco, California
Before: BADE and BUMATAY, Circuit Judges, and SESSIONS,*** District
Judge.
Ross Anthony Farca (“Farca”) appeals an order requiring him to pay
restitution to the United States Army (“Army”) after pleading guilty to making a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
false statement to a government agency in violation of 18 U.S.C. § 1001(a)(2). We
have jurisdiction under 28 U.S.C. § 1291. We “review de novo the legality of a
restitution order.” United States v. Peterson, 538 F.3d 1064, 1074 (9th Cir. 2008).
We also review de novo whether a defendant has waived his statutory right to
appeal. United States v. Zink, 107 F.3d 716, 717 (9th Cir. 1997).
Farca answered “No” to a question on an Army background check form
asking if he had consulted with a health care professional regarding an emotional
or mental health condition in the last seven years. Based partly on this
representation, Farca was admitted into the Army. Shortly after his admission,
Farca was arrested for an altercation with another recruit and was discharged from
the Army for “erroneous enlistment” and “medical condition disqualifying for
military service.” Farca then pleaded guilty to making a false statement to a
government agency in violation of 18 U.S.C. § 1001(a)(2). At sentencing, the
district court found the total loss to the Army to be $17,832 and ordered Farca to
pay restitution in that amount. Upon review, we affirm the district court’s
restitution order.
Farca claims the district court exceeded its authority under the Victims and
Witness Protection Act (“VWPA”), 18 U.S.C. § 3663, and the Mandatory Victims
Restitution Act (“MVRA”), 18 U.S.C. § 3663. The Army contends Farca waived
his right to appeal because at sentencing he acknowledged that “the Government
2
certainly has discretion . . . to order restitution under 3663(a)(1)(A) [of the
VWPA].” Farca then disputed the amount of restitution to be paid, not the legality
of the restitution order itself. In general, “waiver of appeal does not preclude [a]
claim that restitution exceeded statutory authority.” United States v. Baramdyka,
95 F.3d 840, 843 (9th Cir. 1996) (citing United States v. Broughton-Jones, 71 F.3d
1143, 1146 (4th Cir. 1995)). Thus, even if an appellant has “voluntarily and
knowingly waived his general right to appeal, this waiver would not affect his
ability to appeal a violation of the VWPA.” See United States v. Phillips, 174 F.3d
1074, 1076 (9th Cir. 1999).
The costs of recruiting and training Farca are covered by the VWPA. Under
the VWPA, a district court has discretion to order restitution when (1) a defendant
is convicted of an offense under Title 18, (2) the offense “result[s] in damage to or
loss or destruction of property,” and (3) there is a “victim.” See 18 U.S.C.
§ 3663(a)(1)(A), (b)(1). The statute defines “victim” as a person “directly and
proximately harmed as a result of the commission of an offense for which
restitution may be ordered.” 18 U.S.C. § 3663(a)(2). The statute does not define
“property,” however, the Ninth Circuit has adopted a broad interpretation. See
United States v. Luis, 765 F.3d 1061, 1065-66 (9th Cir. 2014) (defining the phrase
“against property” as “infringing on a victim’s property interest” in the restitution
context); see also United States v. Brock-Davis, 504 F.3d 991, 996 (9th Cir. 2007)
3
(noting that a court “may look to cases decided under the VWPA for guidance in
interpreting the MVRA”).
Here, Farca made a false statement to a government agency in violation of
18 U.S.C. § 1001(a)(2), thus violating Title 18. The Army expended money to
recruit and train Farca and subsequently lost the value of its investment because
Farca was not fit to serve. See Luis, 765 F.3d at 1066 (holding that a “pecuniary
loss” constitutes “an offense against property”). The conduct for which Farca’s
restitution was ordered, lying on a federal form, was the direct and proximate cause
of the Army’s loss, and the district court limited restitution to $17,832, the amount
expended to train Farca. (“[R]ecruiting and training a student for the course that
Mr. Farca attended…equates to $493 per day... Mr. Farca was on active duty 36
days, at a cost of $17,382.”). Thus, the restitution order did not “exceed the amount
. . . for the offense charged.” 18 U.S.C. § 3663.
It is unnecessary to decide if restitution in this case was mandatory because
the court had discretion and statutory authority to impose the order under the
VWPA.
AFFIRMED.
4