United States v. Leonard Bernot , 672 F. App'x 725 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 27 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-10569
15-10184
Plaintiff-Appellee,
D.C. No.
v. 2:08-cr-00093-KJM-4
LEONARD BERNOT,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted December 13, 2016**
San Francisco, California
Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,*** District Judge.
Leonard Bernot appeals his sentence for conspiracy to commit mail fraud in
violation of 18 U.S.C. § 1349. He challenges the application of a vulnerable victim
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
enhancement and the imposition of restitution. We have jurisdiction under 28
U.S.C. § 1291 and affirm.
1. A two-level sentencing enhancement may be imposed if the defendant
“knew or should have known that a victim of the offense was a vulnerable victim.”
U.S.S.G. § 3A1.1(b)(1). The district court properly found that Bernot’s
“reasonably foreseeable” victims included the Garfinkles, see United States v.
Treadwell, 593 F.3d 990, 1002 (9th Cir. 2010), and that these homeowners were
particularly vulnerable compared to other victims of mail fraud, see United States
v. Mendoza, 262 F.3d 957, 960-61 (9th Cir. 2001).
2. The district court correctly calculated the Guideline range of 37 to 46
months and articulated the 18 U.S.C. § 3553(a) factors that it considered, including
avoiding unwarranted sentencing disparities, which support the 18-month sentence
imposed.
3. The district court properly used the value of the victims’ lost equity in
their home, $316,744.79, as the amount of restitution. See 18 U.S.C.
§ 3663A(b)(1)(B)(i). Bernot is not entitled to a credit against the restitution for the
down payment he made on the house. See id.
4. The district court did not clearly err in ordering immediate repayment,
which is the default for restitution under 18 U.S.C. § 3572(d)(1). Bernot did not
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object to immediate repayment at sentencing, nor does he argue on appeal that he
is unable to make immediate repayment.
AFFIRMED.
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