NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 26 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-30389
Plaintiff - Appellee, D.C. No. 2:09-cr-00010-DWM-1
v.
MEMORANDUM*
WILLIAM EDWARD MARLIN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted July 14, 2010
Seattle, Washington
Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.
William Edward Marlin pled guilty to one count of mail fraud in violation of
18 U.S.C. § 1341 and one count of money laundering in violation of 18 U.S.C.
§ 1956. The district court imposed concurrent 121-month sentences on each count,
three years of supervised release, and $1,211,300 in restitution. On appeal, Marlin
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
challenges the district court’s calculation of the total loss amount, its use of the
preponderance of the evidence standard in calculating total loss, and the
substantive reasonableness of his 121-month sentence. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
The district court applied an 18-level enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(1)(J), finding that Marlin was responsible for $2,602,550 in total losses
as a result of his role in the Children’s Family Films enterprise. Marlin contends
that the district court’s loss calculation was erroneous, both because it was not
proven by clear and convincing evidence and because, even under the
preponderance of the evidence standard, there was insufficient evidence linking the
Children’s Family Films and Star Max enterprises. See United States v. Zolp, 479
F.3d 715, 718 (9th Cir. 2007) (noting that, where an extremely disproportionate
sentence results from the application of an enhancement, facts underlying the loss
calculation must be supported by clear and convincing evidence).
These arguments are not persuasive. Although the district court initially
applied the preponderance of the evidence standard, Judge Molloy ultimately
stated that “there is far more than clear and convincing evidence that the loss
amount in this case is $2,626,050.” We agree with the district court that, under
either standard, the evidence was sufficient to link the Star Max and Children’s
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Family Films enterprises after February 2006. Thus, the district court’s loss
calculation was a reasonable and proper estimate of the total losses. See U.S.S.G.
§ 2B1.1 cmt. n.3(C) (2008) (“The court need only make a reasonable estimate of
the loss.”).
As to the substantive reasonableness of Marlin’s sentence, we conclude that
the district court did not abuse its discretion in imposing the concurrent 121-month
sentences. See Gall v. United States, 552 U.S. 38, 45-46 (2007) (applying an abuse
of discretion standard to the substantive reasonableness inquiry). Specifically,
Marlin argues that the district court failed to consider adequately the 18 U.S.C.
§ 3553(a)(1) factors and that the 121-month sentence created an unwarranted
sentencing disparity. We conclude that the district court’s consideration of the
§ 3553(a)(1) factors was adequate and that the 121-month sentence, at the low end
of the Guidelines, did not constitute an unwarranted sentencing disparity.
AFFIRMED.
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