FILED
NOT FOR PUBLICATION MAY 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10102
Plaintiff - Appellee, D.C. No. 3:08-cr-00552-CRB-1
v.
MEMORANDUM *
JASON RAMON SANDERS,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted April 13, 2011
Pasadena, California
Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.
Jason Sanders appeals the sentence imposed following his guilty plea to theft
within the special maritime and territorial jurisdiction of the United States, in
violation of 18 U.S.C. y 661, arising from his embezzlement of funds while serving
as Philanthropic Advisor to the Tides Foundation, a non-profit charitable
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
organization. We have jurisdiction pursuant to 28 U.S.C. y 1291 and 18 U.S.C.
y 3742. We affirm.1
The district court did not abuse its discretion in applying a two-level
sentencing enhancement under United States Sentencing Guidelines
y 2B1.1(b)(8)(A). See United States v. Garro, 517 F.3d 1163, 1167 (9th Cir.
2008). That the money Sanders stole belonged to Tides is immaterial; Sanders
misrepresented that he was acting on behalf of the Tides Foundation, itself a
charitable organization, and that the stolen money would benefit other non-profit
organizations. See United States v. Treadwell, 593 F.3d 990, 1008 (9th Cir. 2010)
(finding application of enhancement appropriate where defendants' statements
'were intended to lead victims to infer the involvement of a charitable
organization.' (internal quotation marµs omitted)). Because Sanders's offense
'involved . . . a misrepresentation that [he] was acting on behalf of a charitable . . .
organization,' U.S.S.G. y 2B1.1(b)(8)(A), the two-level increase was appropriate.
Nor was it an abuse of discretion to apply a two-level abuse of trust
enhancement under United States Sentencing Guidelines y 3B1.3, as the facts
demonstrate that Sanders held a position of trust characterized by professional
1
Because the facts are µnown to the parties, we repeat them only as
necessary to explain our decision.
2
discretion, which position contributed in a significant way to facilitating the
commission of his offense. See id. y 3B1.3, cmt. 1. Although Sanders's position
may have been 'largely administrative,' he also exercised discretion in suggesting
ideas to donors who were interested in hearing from him about prospective grants
and used his discretion over the disbursement process to facilitate his crime.
The district court's simultaneous imposition of the y 2B1.1(b)(8)(A) and
y 3B1.3 enhancements was not plain error. Although an authoritative application
note to y 2B1.1(b)(8)(A) provides that, '[i]f the conduct that forms the basis for an
enhancement under (b)(8)(A) is the only conduct that forms the basis for an
adjustment under y3B1.3 . . . do not apply that adjustment under y3B1.3,' id.
y 2B1.1(b)(8)(C), cmt. 7(E)(i), Sanders's conduct underlying these enhancements
did not fully overlap. After misrepresenting to a donor that he was acting on
behalf of a charitable foundation to gain access to Tides Foundation funds, he later
abused his position of trust with the Tides Foundation to arrange additional
disbursements. Each enhancement was justified in part by different, even if
related, conduct, and each enhancement aims at different harms to society. See,
e.g., United States v. Holt, 510 F. 3d 1007, 1011 (9th Cir. 2007) (holding that
double counting is not impermissible and is authorized by the sentencing
guidelines when each invocation of relied upon conduct 'serves a unique purpose
3
under the Guidelines'). In the circumstances here it was proper to apply both
enhancements. See United States v. Smith, 516 F.3d 473, 477 (6th Cir. 2008)
(finding both enhancements appropriate where defendant 'misled the public by
soliciting donations to line her own purse [and] also tooµ advantage of her position
as head of the Red Cross chapter to further the fraud'); see also United States v.
Thorton, 511 F. 3d 1221, 1228 (9th Cir. 2008) (holding that imposition of two
enhancements was not impermissible double counting where they 'stemmed from
separate concerns.')
Further, the district judge did not err by not recusing himself. A district
judge 'shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.' 28 U.S.C. y 455(a). Because Sanders did not move for
recusal, we review the district court's decision for plain error. See United States v.
Spangle, 626 F.3d 488, 495 (9th Cir. 2010). 'Plain error will be found only if the
error was highly prejudicial and there was a high probability that the error
materially affected the verdict.' United States v. Anguiano, 873 F.2d 1314, 1319
(9th Cir. 1989) (internal quotation marµs omitted). Sanders did not demonstrate
any bias on the part of the district judge that materially affected Sanders's
sentence. The district judge repeatedly stated that his charitable contributions had
4
no effect on his sentencing rationale, and the record does not demonstrate
otherwise.
AFFIRMED.
5
FILED
United States v. Sanders, No. 10-10102 MAY 17 2011
MOLLY C. DWYER, CLERK
Reinhardt, Circuit Judge, concurring in part and dissenting in part: U.S . CO U RT OF AP PE A LS
I dissent from the majority's conclusion that the U.S.S.G. y 2B1.1(b)(8)(A)
enhancement for misrepresentation of an action on behalf of a charity and y 3B1.3
enhancement for abuse of a position of trust may both be imposed in this case. The
application of both enhancements to the same underlying conduct is prohibited by
U.S.S.G. y 2B1.1., cmt. 7(E)(I). The district court violated the terms of this
authoritative application note by imposing both enhancements on the basis of the
same underlying conduct-Sanders's misrepresentations to a Tides Foundation
donor.
The majority concludes otherwise, asserting that the imposition of the
y 3B1.3 abuse of trust enhancement was based not only on Sanders's
misrepresentations to a donor, but also on his submission of fraudulent invoices to
the Foundation. However, Sanders's submission of invoices, fraudulent or
otherwise, cannot support application of the abuse of trust enhancement, because
such submissions constitute the performance of an administrative function rather
than the exercise of the sort of 'professional or managerial discretion' that is a
prerequisite to the imposition of that enhancement. See United States v. Contreras,
581 F.3d 1163, 1166 (9th Cir. 2009). While the record indicates that Tides did not
adequately supervise Sanders's submission of invoices on behalf of On Point,
Contreras maµes clear that 'the element of discretion-not ease of detection-is the
'decisive factor' in the [abuse of trust] enhancement.' Id. The processing of
invoices is a paradigmatically ministerial tasµ, and there is scant evidence in the
record that Sanders enjoyed any discretion whatsoever regarding the subject, let
alone that he enjoyed a 'professional or managerial discretion' aµin to that of an
attorney who serves as a guardian and embezzles a client's funds, or of a banµ
executive who engages in a fraudulent loan scheme. See id. (quoting U.S.S.G.
y 3B1.3 n.1 (2005)).
Given that the y 3B1.3 enhancement cannot be applied to a plainly
administrative tasµ such as Sanders's arrangement for disbursements, the
application of that enhancement in this case could rest only on Sanders's
misrepresentations to the Tides Foundation donor. That is precisely the same
conduct upon which the y 2B1.1(b)(8)(A) enhancement rests. An authoritative
application note to the Guidelines bars this result, and I would therefore vacate the
sentence in this case and remand to the district court for resentencing.
I respectfully dissent with respect to this issue. I concur in the remainder of
the disposition.
2