FILED
NOT FOR PUBLICATION FEB 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50596
Plaintiff - Appellee, D.C. No. 2:07-cr-00132-GW-1
v.
MEMORANDUM*
RICHARD ANTHONY BIVONA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted February 18, 2011**
Pasadena, California
Before: KLEINFELD and GRABER, Circuit Judges, and ZILLY, Senior District
Judge.***
Defendant Richard Anthony Bivona challenges his sentence of 87 months
imprisonment, as well as the roughly $3 million in restitution he was ordered to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
pay. On appeal from his sentence, defendant challenges two of the enhancements
on which the district court based the total offense level, namely the enhancements
for loss amount and number of victims. With respect to restitution, defendant
argues a lesser amount should have been imposed. We have jurisdiction under 28
U.S.C. § 1291, and we affirm both the sentence and the restitution order.
The district court applied the correct burden of proof in calculating the loss
amount and number of victims. In general, facts relevant to sentencing must be
established by a preponderance of the evidence. United States v. Armstead, 552
F.3d 769, 776 (9th Cir. 2008). Although a “clear and convincing” evidence
standard applies when a sentencing factor “has an extremely disproportionate
effect on the sentence relative to the offense of conviction,” id., we have
consistently distinguished between enhancements stemming from the extent of a
conspiracy and enhancements arising from uncharged criminal conduct. See
United States v. Harrison-Philpot, 978 F.2d 1520, 1523 (9th Cir. 1992); see also
Armstead, 552 F.3d at 777; United States v. Riley, 335 F.3d 919, 926 (9th Cir.
2003). These types of enhancements are on “fundamentally different plane[s],”
978 F.2d at 1523, and due process concerns are satisfied by the preponderance of
the evidence standard when the enhancements “are based on criminal activity for
which the defendant has already been convicted.” Armstead, 552 F.3d at 777; see
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Riley, 335 F.3d at 926. In this case, the enhancements at issue relate solely to the
extent of the conspiracy, and the district court was not required to apply the clear
and convincing evidence standard. See Riley, 335 F.3d at 926; see also United
States v. Berger, 587 F.3d 1038, 1048-49 (9th Cir. 2009).
Defendant has not established the “clear error” required to reverse the
factual findings underlying the district court’s sentencing decision. See, e.g.,
United States v. Cantrell, 433 F.3d 1269, 1279-80 (9th Cir. 2006) (outlining the
standard of review). The gravamen of defendant’s appeal is that the district court
should not have considered certain hearsay statements. As defendant apparently
concedes, however, this evidence, if properly considered, supports the district
court’s findings concerning the loss amount and the number of victims. Because
the evidence had sufficient indicia of reliability, the district court’s consideration
of the evidence was proper. See U.S.S.G. § 6A1.3(a) (a sentencing court “may
consider relevant information without regard to its admissibility under the rules of
evidence applicable at trial, provided that the information has sufficient indicia of
reliability to support its probably accuracy”). Defendant’s contrary argument,
based on Shepard v. United States, 544 U.S. 13 (2005), is unpersuasive. Unlike
Shepard, this case does not involve records relating to criminal history, and
defendant cites no authority extending Shepard’s ban on the consideration of police
3 09-50596
reports outside the context of determining the exact offense for which a defendant
was previously convicted.
Because defendant did not object to the amount of restitution, we review for
“plain error.” Fed. R. Crim. P. 52(b); see Armstead, 552 F.3d at 776; see also
United States v. Zink, 107 F.3d 716, 718 (9th Cir. 1997). Defendant complains
that the amount of restitution imposed by the district court varies from the total
reflected on the Government’s spreadsheet. The disparity is easily explained. The
spreadsheet shows a sum of roughly $2.44 million, which reflects losses for the
period from 2003 to 2006. To this amount was added the losses incurred prior to
2003 by three victims, namely the County of Sacramento, Rite Aid, and Bax
Global, Inc., to arrive at a figure of $3,057,978. Thus, defendant has shown no
error, let alone “plain error,” in the amount of restitution.1
AFFIRMED.
1
On appeal, the Government concedes it committed a mathematical mistake
that favored defendant by roughly $650 (the sum of the pre-2003 and 2003-2006
losses is actually $3,058,614) and it failed to omit from the restitution figure about
$77,000 in payments made by victims who are now unidentifiable. This slight
discrepancy, which was not raised by defendant on appeal, does not constitute
“plain error” seriously affecting the “fairness, integrity, or public reputation of
judicial proceedings,” Zink, 107 F.3d at 718, and the Court declines to remand for
redetermination of the restitution amount.
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