FILED
NOT FOR PUBLICATION JUL 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30332
Plaintiff - Appellee, D.C. No. 2:11-cr-00330-RSM-1
v.
MEMORANDUM*
TODD ALLEN HOSS,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted July 8, 2014**
Seattle, Washington
Before: ALARCÓN, TASHIMA, and MURGUIA, Circuit Judges.
Todd A. Hoss appeals from his ninety-six-month sentence that the district
court imposed based on his conviction on five counts of mail fraud in violation of
*
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).
18 U.S.C. § 1341. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291. We affirm.
First, the district court did not clearly err in reasonably estimating, as part of
the total loss in this case, that the HMI 1, LLC investors’ net loss amounted to
approximately $1.6 million and that Hoss was not due any credit against this loss
amount for the sale of the Bellevue, Washington property. See United States v.
Stargell, 738 F.3d 1018, 1024 (9th Cir. 2013) (“A calculation of the amount of loss
is a factual finding reviewed for clear error.” (citation and internal quotation marks
omitted)); U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n.3(C) (2011) (stating
a “court need only make a reasonable estimate of the loss” that “shall be based on
available information”).
The trial evidence established that, before the sale of the Bellevue property,
the HMI 1, LLC investors had lost approximately $1.6 million. The trial evidence
also established that, after HMI 1, LLC owned the Believe property, investor
Greenway spent approximately $1.6 million of his own money in order to sell the
property. Investor Greenway’s October 1, 2012 post-trial email stated that the
property sold for $1.85 million, less closing costs of $107,000, for a net sale of
approximately $1,743,000. Greenway’s post-trial email also indicated that his
expenses since trial had increased to over $1.7 million. As a result, the proceeds
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from the sale of the Bellevue property served to reimburse Greenway individually,
but there was no surplus from the sale to reduce the HMI 1, LLC investors’ loss.
Second, the district court did not plainly err by not holding an evidentiary
hearing sua sponte on the amount of loss attributable to HMI 1, LLC. See United
States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001) (holding where a defendant
“fail[s] to request an evidentiary hearing in district court” we review the court’s
decision not to hold an evidentiary hearing sua sponte pursuant to Rule 32 of the
Federal Rules of Criminal Procedure “for plain error”).
In his opening brief, Hoss asserts that he “argued for a hearing to assess the
loss . . . but the district court never addressed the request.” Defendant-Appellant’s
Opening Br. at 18. In his reply brief, however, Hoss concedes that he in fact did
not request an evidentiary hearing. Defendant-Appellant’s Reply Br. at 2 (“At the
sentencing hearing, Mr. Hoss did not accept [HMI 1, LLC loss] numbers at face
value and assumed that the court would provide an evidentiary hearing in which he
could dispute the figures . . . .”). The record also does not support Hoss’s
argument that he requested an evidentiary hearing. Additionally, as described
above, the trial evidence, which Hoss does not dispute, established that the
proceeds from the sale of the Bellevue property were insufficient to cover both
investor Greenway’s expenses and the HMI 1, LLC investors’ loss. Hoss does not
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raise any challenge to the Government’s post-trial submissions that, if valid, would
materially affect his sentence.
AFFIRMED.
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