FILED
NOT FOR PUBLICATION OCT 09 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10186
Plaintiff - Appellee, D.C. No. 2:07-cr-00051-RLH-
PAL-1
v.
CONNIE FARRIS, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Submitted October 7, 2014**
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.
Connie Farris appeals the sentence imposed by the district court after she
was found guilty of 39 counts of mail fraud. We have jurisdiction under 28 U.S.C.
§ 1291. We review the district court’s sentencing decisions for abuse of discretion.
*
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).
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008). We affirm in-part,
vacate in-part, and remand to the district court.
I
The district court permissibly calculated the offense level and guidelines
range at Farris’s sentencing hearing. As a basis for the loss amount and number of
victims, the district court considered charts produced in relation to five fraudulent
loans Farris marketed while leading a group of companies referred to as Global
Express. The district court properly considered this evidence as relevant conduct
under the Guidelines. The fact that the charts were initially produced in a related
civil enforcement action does not preclude their use in a criminal case. See Pepper
v. United States, ___ U.S. ___, 131 S.Ct. 1229, 1241, (2011) (noting that district
courts may base sentencing decisions on all § 3553(a) factors, subject to
reasonableness review).
II
The district court’s non-specific resolution of the loss amount and number of
victims for purposes of calculating the Guidelines offense level was not error, as
Farris did not propose a specific objection to the loss amount calculation. See
United States v. Stoterau, 524 F.3d 988, 1011 (9th Cir. 2008) (noting that a district
court is required to rule on whether a particular submission may be considered in
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sentencing only where there is a specific factual objection). Farris’s concerns
about the reliability of the charts were not expressed at trial. She, in fact, stipulated
to their introduction. Her objections are therefore forfeited, and thus subject to
plain error review. See Puckett v. United States, 556 U.S. 129, 134 (2009).
Farris’s claim that the district court erred in assessing the loss amount and number
of victims fails under plain error review.
III
The district court did not err by applying the aggravating role adjustment
under Chapter Three of the Guidelines. Because Farris did not raise this issue
before the district court, this court may review only for plain error. United States
v. Rose, 20 F.3d 367, 373 (9th Cir. 1994). A court may apply the leader or
organizer aggravating role adjustment when conduct is “otherwise extensive” even
if there are not more than five criminally responsible participants in the crime. See
United States v. Booth, 309 F.3d 566, 577 (9th Cir. 2002) (quoting U.S.S.G.
§ 3B1.1(a)). Evidence at trial showed that Farris perpetrated an elaborate fraud
involving millions of dollars, many employees, and victims across several states.
The district court’s decision to apply the adjustment was not error, much less error
that is “obvious” or “clear,” as the plain error standard requires. See United States
v. Olano, 507 U.S. 725, 734 (1993).
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IV
The district court’s restitution order is inconsistent with the offense level
calculation and is not adequately justified on the record. The district court ordered
restitution in the amount of $31,651,640.29 at sentencing without a detailed
recitation of the basis for the calculation. Presumably, the restitution order
represented losses traceable to Farris’s five fraudulent loan transactions and her
activities to market the Global Express Real Estate Investment Fund. The
restitution order was later amended by order of the district court to $32,773,967.48
to correct a computation error.
The restitution amount ordered is incompatible with the district court’s
decision to sustain Farris’s objection to the loss amount. The district court found
that the loss amount, although then not expressly determined, should be limited to
the five fraudulent loan transactions. That predicate decision as to the base offense
level is not consistent with the restitution the court ordered, which was apparently
based on both the five fraudulent loans and Farris’s activities marketing the Real
Estate Investment Fund. The district court’s restitution order is therefore vacated
and the case remanded for further findings or recalculation in accordance with the
district court’s decision to sustain Farris’s loss amount objection.
AFFIRMED IN-PART and VACATED IN-PART; REMANDED.
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