United States v. Bradley Garner , 427 F. App'x 584 ( 2011 )

FILED
NOT FOR PUBLICATION APR 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30064
Plaintiff - Appellee, DC CR No. 3:09-5088 BHS-2
v.
MEMORANDUM *
BRADLEY AG GARNER,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-30165
Plaintiff - Appellee, DC CR No. 3:09-05088 BHS-2
v.
BRADLEY AG GARNER,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-30211
Plaintiff - Appellee, DC CR No. 3:09-05088 BHS-2
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
BRADLEY AG GARNER,
Defendant - Appellant.
Appeals from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted April 12, 2011 **
Seattle, Washington
Before: KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.
Bradley Garner appeals the district court’s judgment of conviction and order
of restitution. We have jurisdiction pursuant to 28 U.S.C. § 1291. We remand for
amendment of the judgment and presentence investigation report (PSR). We
affirm in all other respects.
The conviction on Count 1 remains valid because it is supported by the
independently valid “money or property” theory. United States v. Pelisamen,
No.10-10022, slip op. 5011, 5022 (9th Cir. Apr. 13, 2011). Because the
government does not oppose Garner’s request for a limited remand instructing the
district court to delete all references to theft of honest services in the judgment and
PSR, we grant such relief.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
2
The restitution order is proper. Because Garner was convicted of wire fraud
and mail fraud, both of which have a “scheme” element, the restitution order
correctly encompasses related but uncharged conduct. See Untied States v. Brock-
Davis, 504 F.3d 991, 998-99 (9th Cir. 2007); United States v. Grice, 319 F.3d
1174, 1177 (9th Cir. 2003).
We REMAND with instructions that the district court amend the judgment
and PSR by deleting all references to theft of honest services, 18 U.S.C. § 1346.
We AFFIRM in all other respects.
3