FILED
NOT FOR PUBLICATION NOV 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-50437
Plaintiff - Appellee, D.C. No. CR-06-00909-R-1
v.
MEMORANDUM *
STEVEN M. FERGUSON,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued May 7, 2009
Withdrawn from submission September 9, 2009
Resubmitted March 16, 2010
Pasadena, California
Before: RYMER, KLEINFELD, and SILVERMAN, Circuit Judges.
Two relevant events occurred subsequent to Ferguson’s conviction. First,
the Supreme Court issued United States v. Santos, 553 U.S. 507 (2008), addressing
whether for purposes of 18 U.S.C. § 1956, in the context of an illegal lottery,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
“proceeds” meant profits or gross receipts. Ferguson argues that under Santos, the
evidence was insufficient for his money laundering and travel counts. Second, we
construed Santos in United States v. Van Alstyne, 584 F.3d 803 (9th Cir. 2009).
We withdrew this case from submission pending issuance of the mandate in Van
Alstyne and supplemental letter briefs from the parties addressing its effect on this
case.
Santos is, as we said in Van Alstyne, a decision “with less than clear
results.” Van Alstyne, 584 F.3d at 807. The distinguishable facts and plurality
decision make Santos by itself difficult to apply, but we are bound in any event by
our Van Alstyne decision construing it. The question whether “proceeds” means
one or the other does not matter for crimes committed after May 2009, because
Congress has amended 18 U.S.C. § 1956 establishing that “proceeds” now means
gross receipts. 18 U.S.C. § 1956(c)(9). Ferguson’s conduct, though, occurred
prior to this amendment, so Santos as construed by Van Alstyne matters to his
case.
Van Alstyne holds that under Santos, "proceeds" in 18 U.S.C. § 1956 means
"gross receipts" except where the money transfers are "inherent in the scheme." In
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that Ponzi scheme, payments to earlier investors were inherent to the scheme
because it is inherent in a Ponzi scheme that payouts to earlier investors lull later
investors into believing that the investment scheme is genuine. Van Alstyne holds
that although such payouts should not be counted as “proceeds," a refund in full of
an investor's money was not "inherent," so that money could not properly be
subtracted from “proceeds."
Ferguson challenges for insufficient evidence his convictions on counts 5
through 15 of his 24-count indictment. None of those counts were for payouts to
earlier investors, as were the counts for which the convictions were reversed in
Van Alstyne. All were for such expenditures as travel to distant locations, private
chef services, limousine services, lavishly benefitted staff, and impressive offices.
Ordinarily we review insufficiency of evidence challenges de novo, United States
v. Carranza, 289 F.3d 634, 641 (9th Cir.2002), but since Ferguson could not and
did not raise the concern over the meaning of “proceeds” in his Rule 29 motion, we
review “for plain error to prevent a ‘miscarriage of justice.’” United States v.
Roston, 986 F.2d 1287, 1289 (9th Cir.1993) (quoting United States v. Curtis, 568
F.2d 643, 647 (9th Cir.1978)), cert. denied, 519 U.S. 955 (1996). To find plain
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error, we “must find that (1) there is ‘error’; (2) it was ‘plain’; and (3) the error
affected ‘substantial rights.’ If these conditions are met, we may notice the
forfeited error only if the error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” United States v. Recio, 371 F.3d 1093, 1100
(9th Cir. 2004) (quoting United States v. Olano, 507 U.S. 725, 732-36 (1993)).
Here, because there is no constitutional error and the law was unclear at trial and is
still unclear on appeal, error is not plain. United States v. Turman,122 F.3d 1167,
1170 (9th Cir. 1997) (holding that when the law is unclear at trial and becomes
clear only as a result of later authority, error is not plain).
Under Van Alstyne, it is not “plain” that these expenditures are inherent in
the scheme and should be subtracted from “proceeds.” These extravagances could
be “front” inherent in the Ponzi scheme, or front not inherent in the scheme, or
mere self-indulgences with victims’ money, not inherent in the scheme. Likewise
inducing “investors” to take a luxury trip to Hawaii could be personal indulgence
not inherent in the scheme for the purposes of 18 U.S.C. § 2314. There is
therefore no plain error under Van Alstyne.
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Ferguson argues that his sentence was improperly imposed because the
district court did not calculate the guidelines range, did not explain why the
sentence was chosen in light of the guidelines and § 3553, and improperly imposed
an upward adjustment for obstruction of justice. The district court is obligated to
“begin by determining the applicable Guidelines range,” then must “consider the §
3553(a) factors to decide if they support the sentence suggested by the parties.”
United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008). If objections are raised,
the district court must “explain why he accepts or rejects the party’s position.” Id.
at 993. The district court however “need not tick off each of the § 3553(a) factors
to show that it has considered them,” nor articulate “how each § 3553(a) factor
influences its determination of an appropriate sentence.” Id. at 992. The § 3553
discussion may be cursory. See United States v. Mix, 457 F.3d 906, 912 (9th Cir.
2006).
Ferguson is correct that the district court must under Gall v. United States,
552 U.S. 38 (2007) and United States v. Waknine, 543 F.3d 546 (9th Cir. 2008)
explain its calculation of the sentencing guidelines and its consideration of § 3553.
It did not do so here, even in the terse manner we have accepted where appropriate.
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The district court did not even say that it accepted the presentence report
calculation of the guidelines, though it appears that it probably did. The district
court did not mention what § 3553 requires the district court to consider, and did
not discuss any of the considerations, so we do not know whether they were
considered. Though “when a defendant’s arguments are straightforward and
uncomplicated, the district court does not abuse its discretion when it listens to the
defendant’s arguments and then ‘simply [finds those] circumstances insufficient to
warrant a sentence lower than the guidelines range’” United States v. Stoterau,
524 F.3d 988, 999 (9th Cir. 2008) (quoting United States v. Carty, 520 F.3d 984,
995 (9th Cir. 2008) (en banc)), we do not even have such findings here. As for
whether the guidelines calculation amounted to plain error because the obstruction
of justice adjustment could not properly be imposed, the lack of any explanation
by the district court makes this question incapable of review. The sentence must
therefore be vacated and the case must be remanded for resentencing.
Ferguson also challenges two conditions of supervised release, that he “shall
not be self employed” and that he “participate in a domestic violence program.”
The court did not say why these conditions were imposed, did not say that the
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court was considering them, and they are not in the list of mandatory or
discretionary conditions in the guidelines. U.S.S.G. §§ 5D1.3(a)(3) (providing for
domestic violence treatment only for a defendant “who is convicted for a domestic
violence crime as defined in 18 U.S.C. §3561(b) for the first time”), 5D1.3(e)(4)
and 5F1.5 (on Occupational Restrictions, which include only “the specified
occupation, business, or profession held by the defendant prior to conviction.”
United States v. Stoterau, 524 F.3d 988 (9th Cir. 2008)). The presentence report
does not suggest either condition.
According to the presentence report, Ferguson had been physically abusive
to his wife, and the conviction established that he was dishonest, but while there
may have been a basis for conditions addressing employment and domestic
violence, he was entitled to notice that these conditions were under consideration
so that he could address their appropriateness and their exact terms. “Where a
condition of supervised release is not on the list of mandatory or discretionary
conditions in the sentencing guidelines, notice is required before it is imposed, so
that counsel and the defendant will have the opportunity to address personally its
appropriateness.” United States v. Wise, 391 F.3d 1027, 1033 (9th Cir. 2004).
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The self employment prohibition, in particular, might have been different
had notice been given, since Ferguson’s dishonesty might well make some self
employment too dangerous to the public but other self employment safe for the
public. It is quite possible that no employer would want to hire Ferguson after he
is released from prison, so that some sort of self employment will be the only
legitimate means of supporting himself after release. See 18 U.S.C. § 3583(d)(1);
18 U.S.C. § 3553(a); United States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003)
(explaining that conditions of supervised release “are permissible only if they are
reasonably related to the goal of deterrence, protection of the public, or
rehabilitation of the offender”).
Accordingly, the conviction is AFFIRMED, but the sentence is VACATED
and the case is REMANDED FOR RESENTENCING.
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