CORRECTED 01/08/2010
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 15 2009
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 08-10237
Plaintiff - Appellee, D.C. No. 2:07-cr-135-GEB
v.
MEMORANDUM *
JOEL NATHAN WARD,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted October 6, 2009 **
San Francisco, California
Before: RYMER and TASHIMA, Circuit Judges, and ADELMAN, *** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
Joel Nathan Ward stole over $11 million of the $15 million entrusted to him
by investors. He pleaded guilty to five counts of wire fraud, two counts of mail
fraud, and two counts of money laundering under 18 U.S.C. § 1957. The district
court sentenced him to 108 months in prison and ordered restitution in the amount
of $11,300,501.53. Ward appeals his money laundering convictions based on the
intervening Supreme Court decision in United States v. Santos, 128 S. Ct. 2020
(2008), and his sentence. We affirm.
I
Where a criminal defendant seeks the benefit of a change in the law that
occurs while his appeal is pending, but he did not raise the issue in the district
court, review is for plain error. See United States v. Turmon, 122 F.3d 1167, 1169-
70 (9th Cir. 1997). In United States v. Van Alstyne, 584 F.3d 803 (9th Cir. 2009),
the Ninth Circuit interpreted the precedential impact of the Supreme Court’s
fractured opinion in Santos. The court concluded that after Santos, the word
“proceeds” in the federal money laundering statute, 18 U.S.C. § 1956, means
“profits,” rather than “receipts,” when interpreting “proceeds” as “receipts” would
present a merger problem. 584 F.3d at 814. A merger problem arises when
treating “proceeds” as “gross receipts” means a violation of a specified criminal
statute becomes a simultaneous violation of the money laundering statute, radically
increasing the sentence. See id. at 810. In Van Alstyne, the court reversed two
money laundering convictions that were each based on a payment that was a
“central component” of the underlying scheme to defraud, but upheld a money
laundering conviction that was based on a payment that was “distinct” from the
underlying mail fraud scheme and therefore, not a “crucial element” of the scheme
to defraud. Id. at 814-16.
Ward was convicted of two counts of money laundering pursuant to
18 U.S.C. § 1957. Assuming (without deciding) that Santos and Van Alstyne apply
to § 1957, Ward has not demonstrated plain error in his money laundering
convictions. Ward’s § 1957 convictions were premised on the purchase of two
cashier’s checks made payable to another of Ward’s businesses, a foreign currency
exchange trading school. Although persons who attended this school often became
investors in Ward’s fraudulent scheme, funding the school was not plainly a
“central component” or “crucial element” of Ward’s scheme to defraud. See Van
Alstyne, 584 F.3d at 814-16. The school can reasonably be viewed as existing and
operating independently of Ward’s scheme, therefore the purchase of the cashier’s
checks to fund the school can reasonably be considered “distinct” from the scheme
to defraud.
II
The undisputed Guidelines calculation recommended 108 to 135 months in
prison. Ward proposed no, or little, jail time so that he could freely begin currency
trading again, only this time in a controlled account, and try to make full
restitution. The district court rejected the proposal because it did not adequately
satisfy the sentencing goals articulated in 18 U.S.C. § 3553(a). We agree and
perceive no error. Ward’s proposal neglects almost all of the § 3553(a) sentencing
factors. The district court’s explanation for rejecting it was more than sufficient.
See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc).
We also conclude the within-Guidelines sentence was substantively
reasonable. Restitution is not the only sentencing goal of § 3553(a). Ward did not
attempt to show his case falls outside of the heartland of white-collar criminal
cases; nor did he offer any realistic sentencing alternative. There were over ninety
victims with losses in excess of $11 million. The district court thoughtfully
considered the nature, severity, and duration of Ward’s crimes, as well as Ward’s
personal history and characteristics, to reach a sentence at the low end of the
Guidelines range. This strikes us as perfectly reasonable, and well within the
district court’s discretion.
AFFIRMED.