FILED
NOT FOR PUBLICATION
OCT 30 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10317
Plaintiff-Appellee, D.C. No.
3:16-cr-00483-WHA-1
v.
MICHAEL F. HARRIS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted October 17, 2018
San Francisco, California
Before: THOMAS, Chief Judge, and KLEINFELD and GRABER, Circuit Judges.
Michael Harris appeals the district court’s imposition of a 12-level
sentencing enhancement under U.S.S.G. § 2B1.1. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We review the district court’s factual findings for clear error and its
application of the Sentencing Guidelines to the facts of the case for abuse of
discretion. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.) (en banc),
cert. denied, 138 S. Ct. 229 (2017). Reversal under an abuse of discretion
standard is possible only when the district court improperly calculates the
Guidelines range or rests its decision on a clearly erroneous finding of a material
fact. United States v. Lloyd, 807 F.3d 1128, 1139 (9th Cir. 2015). Clear error will
not be found if the district court’s account of the evidence is plausible in light of
the entire record. Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002).
If there was an error, we consider whether it was harmless. Fed. R. Crim. P. 52(a).
At issue is the district court’s “actual loss” calculation at sentencing. The
district court found that Harris’s false statements resulted in an “actual loss” of
more than $250,000 and imposed an 18-month sentence. The court reached its
actual loss conclusion by combining (1) $171,670 in distributions that Harris made
to himself from the Harris trust; and (2) a $150,000 payment the trust made to
Harris’s wife. Harris contests both findings.
I
The district court did not clearly err by finding an actual loss of $171,670 in
distributions that Harris made to himself from the Harris trust. Under U.S.S.G. §
2
2B1.1, actual loss is the “reasonably foreseeable pecuniary harm that resulted from
the offense.” U.S.S.G. § 2B1.1, cmt. n.3(A)(i). Pursuant to United States v.
Harris, 854 F.3d 1053 (9th Cir. 2017) (per curiam), the payments Harris received
from the trust would have gone to the individuals owed restitution through a
garnishment writ absent his false statements. Further, Harris rendered the funds
unavailable for any future payment of restitution by spending them on personal
expenses. The district court did not err in concluding that inability for those owed
to access the expended funds was a “reasonably foreseeable pecuniary harm”
resulting from Harris’s offense.
Harris argues that his concealment did not cause any actual loss; instead, he
“simply failed to pay a federal debt as quickly as otherwise might have been
required.” But, as numerous cases in the bankruptcy context demonstrate,
concealed funds available for the payment of restitution are appropriately included
in actual loss calculations. See, e.g., United States v. Lawrence, 189 F.3d 838, 845
(9th. Cir. 1999) (determining funds concealed from creditors when the defendant
placed them in a trust could properly be included in a loss calculation for
sentencing purposes); United States v. Lindholm, 24 F.3d 1078, 1084–86 (9th Cir.
1994) (finding that fraudulent statements on bankruptcy applications that the
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defendant filed to avoid having to make payments that he had the ability to pay
caused actual loss to creditors).
II
We need not decide whether the district court erred in including the
$150,000 distribution to Harris’s wife in its actual loss calculation, because any
error was harmless. At sentencing, an error is harmless when the sentencing court
(1) acknowledges that the correct Guidelines range is in dispute and performs the
sentencing analysis twice, beginning with both the correct and the incorrect range;
or (2) when it “chooses a within-Guidelines sentence that falls within both the
incorrect and the correct Guidelines range and explains the chosen sentence
adequately.” United States v. Leal-Vega, 680 F.3d 1160, 1170 (9th. Cir. 2012)
(quoting United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th Cir.
2011)).
Both are true here. Had the loss amount only included the $171,670, the
court would have applied a 10-level enhancement. U.S.S.G. § 2B1.1(b)(1). At the
sentencing hearing, the district court inquired whether the 18-month sentence
would still be appropriate without the $150,000 payment. After conducting the
analysis, the district court then concluded that, even if the $150,000 were excluded,
the 18-month sentence would still be within the Guidelines range. Thus, any error
4
in the inclusion of the amount was harmless, and we need not decide whether any
error occurred.
AFFIRMED.
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