United States v. Eric Holmes ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50017
Plaintiff-Appellee, D.C. No. 8:18-cr-00004-JVS-2
v.
MEMORANDUM
ERIC HOLMES,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, Senior District Judge, Presiding
Submitted August 10, 2020**
Pasadena, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and WATSON,*** District
Judge.
Defendant, Eric Holmes, pleaded guilty to bank fraud and aggravated
identity theft in 2018. The plea agreement was between defendant and the United

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 Michael H. Watson, United States District Judge for the
Southern District of Ohio, sitting by designation.
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States Attorney’s Office—neither the district court nor the Probation Office were
parties to the agreement. The plea agreement contemplated a restitution amount of
$27,400, but both parties agreed that the amount could change based on facts that
came to the parties’ attention at sentencing.
At sentencing, the probation officer’s Presentence Investigation Report
(“PSR”) declined to follow the plea bargain’s figures and recommended a higher
restitution amount of $50,690, based on the actual loss suffered by the bank due to
Holmes’s fraudulent activities. Both parties objected to the PSR’s restitution
amount. The probation officer countered that the amount was calculated based on
the case materials provided by the Government and her application of the
sentencing guidelines.
At a subsequent sentencing hearing, the district court adopted the PSR’s loss
amount over the parties’ objections. In a separate sentencing memorandum, the
district court concluded that the parties had no substantive basis for their objection
and that the PSR’s calculation was valid.
Defendant appealed the restitution amount imposed by the district court. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we
affirm.
1. The district court did not abuse its discretion by imposing the restitution
amount recommended by the PSR. See United States v. Waknine, 543 F.3d 546,
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555 (9th Cir. 2008). The district court has broad discretion in ordering restitution,
United States v. Miguel, 49 F.3d 505, 511 (9th Cir. 1995), and is not required to
make explicit factual findings to support its order. United States v. Peterson, 538
F.3d 1064, 1077 (9th Cir. 2008). Moreover, the district court may rely on
information provided in the PSR when determining a restitution amount. See
Miguel, 49 F.3d at 508; see also United States v. Graham, 72 F.3d 352, 357–58 (3d
Cir. 1995). Accordingly, the court did not err by imposing a restitution amount in
step with the PSR’s loss calculation.
2. The fact that the parties objected to the PSR’s restitution amount does not
require reversal. Where disputes arise over the probation officer’s loss calculation,
the court need only resolve them by a preponderance of the evidence. 18 U.S.C.
§ 3664(e). In resolving the dispute, the court may rely on evidence that possesses
“sufficient indicia of reliability to support its probable accuracy,” Waknine, 543
F.3d at 557 (simplified), such as a PSR supported by investigative reports
compiled by the FBI. See Graham, 72 F.3d at 357–58. The district court did just
that here: it adopted the PSR’s loss calculation, which itself was supported by
information gleaned from state and federal law enforcement reports.
3. The district court did not err by imposing a higher restitution amount than
that proposed in the parties’ plea agreement. The district court is not a party to any
agreement between the parties and may reject it. United States v. Lewis, 979 F.2d
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1372, 1375 (9th Cir. 1992). The parties acknowledged this fact in the plea bargain,
agreeing that the loss amount could change based on evidence presented at
sentencing. Moreover, the district court expressly advised Defendant that it was
not a party to the plea bargain and could impose a higher restitution amount at
sentencing if warranted by the evidence. And this is precisely what happened: the
probation officer’s investigation led her to recommend a higher loss calculation
than that contemplated by the parties, and the court adopted it. Because the district
court was under no obligation to follow the parties’ plea bargain, it did not err in
imposing the higher restitution amount recommended by the PSR.
AFFIRMED.
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