NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 25 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-30319
Plaintiff - Appellee, D.C. No. 3:07-cr-00148-RRB-1
v.
MEMORANDUM*
LANCE LOCKARD,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted July 30, 2010
Anchorage, Alaska
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
Lance Lockard appeals the sentence imposed following his guilty plea to 64
counts of conspiracy (18 U.S.C. § 371), wire fraud (18 U.S.C. § 1343), bank fraud
(18 U.S.C. § 1344(2)), and false statements (18 U.S.C. § 1014), arising out of a
mortgage-fraud scheme.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Lockard contends the district court erred by finding the facts supporting the
sentence enhancements by a preponderance of the evidence rather than beyond a
reasonable doubt, or at least by clear and convincing evidence. It is well-settled in
this circuit, however, that the district court is generally to apply the preponderance
of the evidence standard when finding facts to support a sentencing determination,
unless the enhancement at issue has an “extremely disproportionate” effect on the
sentence imposed. United States v. Staten, 466 F.3d 708, 717-20 (9th Cir. 2006).
The district court followed that course here.
Lockard next contends the district court erred in enhancing the sentence
pursuant to U.S.S.G. § 2B1.1(b)(2)(A) upon finding ten or more victims of
Lockard’s fraud. The district court recognized that in addition to the nine financial
institution victims, there were multiple individual victims, and appropriately
focused on a property buyer who obtained a mortgage with the conspiracy’s
assistance as a tenth victim. The buyer’s acquisition of a mortgage ruinous to his
finances was directly attributable to the fraud conspiracy, and thus was a
foreseeable, actual loss. See U.S.S.G. § 2B1.1 cmt. n.1 and n.3.
The district court did not err in enhancing the sentence pursuant to U.S.S.G.
§ 2B1.1(b)(14)(A) because Lockard derived more than $1 million in gross receipts.
Lockard undisputably received $993,000 in gross receipts directly from
2
the First National Bank of Alaska. The record contains ample support for the
district court’s conclusion that the enhancement applied in light of other gross
receipts.
The district court did not err by applying an organizer/leader enhancement
under U.S.S.G. § 3B1.1(a). See United States v. Jordan, 291 F.3d 1091, 1097 (9th
Cir. 2002). The district court explicitly found that Lockard controlled three
members of the conspiracy. The record supports the district court’s findings.
Finally, Lockard’s sentence is not substantively unreasonable. See United
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). There is no disparity
between Lockard’s 70-month sentence and that of his co-conspirators or others
similarly situated that would render the sentence unreasonable. The district court
gave a full and accurate explanation of the sentence it imposed.
AFFIRMED.
3