FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BECKY NADINE HUNTER, AKA
Rebekah A. Hunter, AKA Rebecca
A. Hunter, AKA Ann R. Hunter, No. 09-30246
AKA Rebekah A. Smith, AKA
Becky Nadine Smith, AKA D.C. No.
CR-4-00002-RRB
Rebekah Nadine Carden, AKA
Rebekah Nadine Smith, AKA OPINION
Rebecca A. Bennett, AKA
Rebekah An nadine Bennett
Hunter, AKA Rebekah Ann
Hunter, AKA Rebekah Nadine
Pratt, AKA Rebecca Smith,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
March 9, 2010—Seattle, Washington
Filed August 20, 2010
Before: Raymond C. Fisher and Marsha S. Berzon,
Circuit Judges, and G. Murray Snow, District Judge.*
*The Honorable G. Murray Snow, District Judge for the District of Ari-
zona, sitting by designation.
12269
12270 UNITED STATES v. HUNTER
Opinion by Judge Snow
UNITED STATES v. HUNTER 12271
COUNSEL
Karen L. Loeffler, United States Attorney’s Office, Anchor-
age, Alaska, for the plaintiff-appellee.
Terrence Kellogg, Seattle, Washington, for the defendant-
appellant.
OPINION
MURRAY SNOW, District Judge:
Defendant-Appellant Becky Nadine Hunter (“Hunter”)
appeals the district court’s order awarding restitution to two
of her former employers. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.1
BACKGROUND
On June 19, 2009, Hunter was sentenced for committing
various federal crimes, including five counts of mail fraud in
violation of 18 U.S.C. § 1341. Hunter’s mail fraud convic-
tions arose from a series of false documents she mailed for the
purpose of obtaining employment as a nurse.
1
In a concurrently-filed memorandum disposition, we address the other
issues raised by Hunter on appeal.
12272 UNITED STATES v. HUNTER
Hunter moved to Alaska in 1998, where she stole the iden-
tity of a registered nurse and used it to obtain a nursing
license. She used the fake license, along with a false employ-
ment history, address, and identity to obtain employment as
a nurse. She was then hired as a school nurse by Fairbanks
North Star Borough School District in September 1998. Dur-
ing her employment with North Star Borough, Hunter was
paid a total of $12,558 in wages and benefits. After North Star
Borough discovered Hunter’s false identity and fired her,
Hunter used a similar set of false documents to obtain a nurs-
ing position with the United States Department of Labor. Dur-
ing her employment as a nurse with the Department of Labor,
Hunter was paid $5,457.
In 2004, Hunter was arrested after an FBI investigation
uncovered additional fraudulent conduct. Following a suc-
cessful appeal of her original sentence, see United States v.
Hunter, 286 F. App’x 482, 483 (9th Cir. 2008), Hunter was
resentenced to ninety-six months incarceration and ordered to
pay $12,558 in restitution to North Star Borough and $5,547
in restitution to the Department of Labor.
DISCUSSION
Hunter challenges the restitution to Northstar Borough and
the Department of Labor on the basis that these employers
will receive windfalls if she is required to repay wages for
work she actually performed. We disagree.
[1] The Mandatory Victims Restitution Act (“MVRA”)
requires courts to order restitution to victims of certain crimi-
nal offenses, such as mail fraud. See 18 U.S.C. § 3663A(c).
The “purpose of restitution” under the MVRA, however, is
not to punish the defendant, but to “make the victim[ ] whole”
again by restoring to him or her the value of the losses suf-
fered as a result of the defendant’s crime. United States v.
Crandall, 525 F.3d 907, 916 (9th Cir. 2008) (quoting United
States v. Gordon, 393 F.3d 1044, 1052 n. 6 (9th Cir. 2004)).
UNITED STATES v. HUNTER 12273
The amount of restitution, therefore, “is limited to the vic-
tim’s actual losses.” United States v. Bussell, 504 F.3d 956,
964 (9th Cir. 2007); see also Crandall, 525 F.3d at 916.
“[A]ctual loss for restitution purposes is determined by com-
paring what actually happened with what would have hap-
pened if the defendant had acted lawfully.” Bussell, 504 F.3d
at 964 (quotations and brackets omitted). We review the dis-
trict court’s application of the MVRA and its conclusion that
Hunter’s employers were victims of her crimes de novo.
United States v. De La Fuente, 353 F.3d 766, 771 (9th Cir.
2003). Factual findings made in support of the restitution
order are reviewed for clear error. Id. at 772.
[2] The district court had a clear legal and factual basis for
ordering restitution to North Star Borough and the Depart-
ment of Labor. Hunter was convicted of mail fraud under 18
U.S.C. § 1341. Accordingly, the district court was required to
impose restitution for the amount of loss sustained by each
victim directly and proximately harmed as a result of that
offense. See 18 U.S.C. § 3663A(a)(2), (c)(1); see also United
States v. Johnson, 297 F.3d 845, 872 (9th Cir. 2002) (noting
that “an order of restitution to victims is mandatory” in cases
involving mail fraud). Both Northstar Borough and the
Department of Labor were directly and proximately harmed
by Hunter’s mail fraud because they paid for the services of
a licensed nurse that were never received. See Bussell, 504
F.3d at 964. If Hunter had not mailed false documents reflect-
ing fictitious nursing credentials, she could not legally have
been employed in positions that required a valid nursing
license, and a qualified licensed nurse could have been
employed instead. See id.
The factual circumstances presented here are similar to
those in the Sixth Circuit’s decision in United States v.
Kaminski, 501 F.3d 655 (6th Cir. 2007). In Kaminski, a crimi-
nal defendant was ordered to pay restitution to consumers
who had purchased drugs, believing that the drugs were FDA
approved. Id. at 669. Though the defendant argued that these
12274 UNITED STATES v. HUNTER
consumers did not suffer any harm because there was no evi-
dence that the drugs were ineffective or otherwise detrimen-
tal, the Sixth Circuit disagreed. Id. at 670. Instead, the court
held that “the ‘economic harm to consumers’ ” is that “con-
sumers who are deceived in this manner do not get what they
pay for.” Id. (citing United States v. Universal Mgmt. Servs.,
191 F.3d 750, 763 (6th Cir. 1999), cert. denied, 530 U.S.
1274 (2000)). Like the consumers in Kaminski who paid for
a product that they never received, Northstar and the Depart-
ment of Labor paid for nursing services that Hunter was not
qualified to perform, and so did not get what they paid for.
See id.
[3] We reject Hunter’s assertion that the district court’s
restitution order should have deducted the value of services
provided to these employers that did not require her to hold
a nursing license. In this regard, the application notes to
§ 2B1.1 of the United States Sentencing Guidelines
(U.S.S.G.), although not directly applicable, are instructive:
In a case involving a scheme in which . . . services
were fraudulently rendered to the victim by persons
falsely posing as licensed professionals . . . loss shall
include the amount paid for the . . . services . . .
transferred, rendered, or misrepresented, with no
credit provided for the value of those . . . services.
U.S.S.G. § 2B1.1, App. Note 3(f)(v). This provision of the
Guidelines is not specific to the calculation of restitution
awards, and calculating loss under the guidelines is not neces-
sarily identical to loss calculation for purposes of restitution:
Loss under the Guidelines includes actual or intended loss,
while loss for restitution purposes covers only actual loss. See
United States v. Allen, 529 F.3d 390, 396 (7th Cir. 2008); see
also Crandall, 525 F.3d at 916 (noting the potential for differ-
ent outcomes because loss under the Guidelines serves a puni-
tive purpose, while restitution is limited to actual losses);
Bussell, 504 F.3d at 964 (observing that a restitution award
UNITED STATES v. HUNTER 12275
should account for “actual loss”). But where, as here, the
issue is absence of a legally required license for work per-
formed, any distinction between intended and actual loss has
no pertinence. Compare Allen, 529 F.3d at 397 (declining to
rely on § 2B1.1, App. Note 3(f)(v) where the defendant repre-
sented himself as an expert, but “the profession in which he
was scheming was not a licensed one”). Given that symmetry
for present purposes, the § 2B1.1 application note supports
the conclusion that the loss in this case requires no deduction
for the value of work that Hunter performed when she was
falsely acting as a nurse, or equivalently that the work Hunter
performed had no legal value for purposes of calculating the
victims’ losses.
This conclusion accords with traditional principles of con-
tract law. When an individual fails to comply with licensing
requirements aimed at protecting health and safety rather than
merely raising revenue, that individual can maintain “no
action for the promised compensation or for quantum meruit.”
See 15 Corbin on Contracts § 88.4 (revised ed. 2003); 2 Farn-
sworth on Contracts § 5.6 (3d ed. 2004). This rule reflects the
public policy concern that providing compensation to unli-
censed individuals practicing in these fields might encourage
fraud or undermine public health and safety. See 15 Corbin on
Contracts § 88.4.
During Hunter’s sentencing and at trial, the government
presented evidence that North Star Borough and the Depart-
ment of Labor lost $12,558 and $5,457 respectively in wages
paid to Hunter. If Hunter had not acted unlawfully, her vic-
tims would not have paid any of these wages, or would have
paid them for valuable services from a real, qualified nurse.
See id. It is clear that the district court relied on this evidence
in reaching its conclusion as to the amount of restitution. See
United States v. Peterson, 538 F.3d 1064, 1077-78 (9th Cir.
2008) (upholding the amount of the district court’s restitution
order where the factual basis supporting the amount of restitu-
tion was clear from the record).
AFFIRMED.