FILED
NOT FOR PUBLICATION JUN 08 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10134
Plaintiff - Appellee, D.C. No. 2:10-cr-00287-GMN-
VCF-1
v.
LANCE KELLOW, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Argued and Submitted May 12, 2015
San Francisco, California
Before: KOZINSKI, PAEZ and CLIFTON, Circuit Judges.
1. The district court didn’t abuse its discretion in applying a sophisticated-
means enhancement. The evidence showed that defendant shuffled funds between
multiple bank accounts in furtherance of the mortgage fraud, and that sort of
conduct is sufficiently “complex” to constitute sophisticated means. See United
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
States v. Jennings, 711 F.3d 1144, 1147 (9th Cir. 2013); see also U.S.S.G.
§ 2B1.1(b)(10) & n.9.
2. Nor did the district court abuse its discretion by applying an abuse-of-
trust enhancement. The evidence showed that defendant’s position as a mortgage
broker “significantly facilitated the commission . . . of the offense,” because his
brokerage company was involved in the fraud scheme and he knew how to falsify
mortgage applications based on his background. See U.S.S.G. § 3B1.3; United
States v. Thornton, 511 F.3d 1221, 1227 (9th Cir. 2008).
3. The district court properly denied a minor-participant reduction. See
U.S.S.G. § 3B1.2(b) & n.5. The testimony at trial established that defendant was
very involved in preparing loan applications and bolstering the straw buyer’s
credit. As such, defendant wasn’t “substantially less culpable than the average
participant” in a mortgage fraud scheme. United States v. Hurtado, 760 F.3d 1065,
1068–69 (9th Cir. 2014) (emphasis omitted).
4. There was no impermissible disparity between defendant’s sentence and
those of his co-defendants, because defendant and his co-defendants weren’t
similarly situated. Both co-defendants pled guilty to only one count and accepted
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responsibility for the mortgage fraud, whereas defendant went to trial and was
convicted on five counts. “Failure to afford leniency to those who have not
demonstrated those attributes on which leniency is based is unequivocally
constitutionally proper.” United States v. Carter, 560 F.3d 1107, 1121 (9th Cir.
2009) (internal quotation marks and alterations omitted).
5. The district court didn’t err in ordering $834,500 in restitution. The
district court thoroughly explained the basis for the restitution amount, and
defendant does not indicate why that explanation was insufficient.
6. The district court didn’t err by ordering forfeiture of $2,766,400.
Defendant makes no argument that the forfeiture amount was improper. He claims
only that he received insufficient notice of the amount. But the government
informed defendant all along that it would seek forfeiture of all the proceeds of his
criminal activity, and the criminal forfeiture rule specifically states that “[t]he
indictment . . . need not . . . specify the amount of any forfeiture money judgment
that the government seeks.” Fed. R. Crim. P. 32.2(a).
7. Sufficient evidence supports defendant’s conviction. In the light most
favorable to the government, the evidence at trial established that defendant
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knowingly engaged in the mortgage fraud conspiracy by, among other things,
helping falsify mortgage applications and recruiting the straw buyer.
AFFIRMED.