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NOT FOR PUBLICATION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. 16-10153
Plaintiff-Appellee, D.C. No.
3:12-cr-00278-EMC-1
v.
JAMES MURRAY, AKA Jim Murray, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted October 10, 2018
San Francisco, California
Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges.
Defendant-Appellant James Murray was convicted of sixteen counts of wire
fraud, four counts of money laundering, two counts of aggravated identity theft,
and one count of contempt of court. Murray was sentenced to 180 months in
prison, three years of supervised release subject to various conditions, and $3.4
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
million in restitution payments. Murray raises numerous issues on appeal. He
challenges the legal sufficiency of one of his convictions, the calculation of his
criminal history category, the imposition of two different sentencing
enhancements, two purported errors in the court’s calculation of the amount of
loss, two purported errors in the court’s order of restitution, and the legality of two
of the special conditions of supervised release. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742. We vacate Murray’s conviction for
aggravated identity theft in Count 21, but affirm the district court on all other
issues.
First, Murray challenges the legal sufficiency of his conviction for
aggravated identity theft in Count 21. We review de novo a district court’s
determination that there is sufficient evidence to support a jury’s verdict. United
States v. Aldana, 878 F.3d 877, 880 (9th Cir. 2017). A conviction for aggravated
identity theft under 18 U.S.C. § 1028A(a)(1) requires that the fraudulent use of
another person’s identification occur “during and in relation to” certain predicate
felonies. In Murray’s case, there was insufficient evidence that Murray’s use of his
ex-wife’s identification occurred “during and in relation to” the four wire fraud
convictions charged as predicate felonies. We thus vacate Murray’s conviction for
aggravated identify theft in Count 21.
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Second, Murray challenges the district court’s imposition of an obstruction
of justice enhancement under United States Sentencing Guidelines (USSG)
§ 3C1.1. We review the district court’s factual findings for purposes of an
obstruction of justice enhancement for clear error. United States v. Castro-Ponce,
770 F.3d 819, 821–22 (9th Cir. 2014). We review de novo “the district court’s
characterization of a defendant’s conduct as obstruction of justice within the
meaning of [USSG] § 3C1.1.” Id. at 822. The obstruction of justice enhancement
should be imposed if the defendant is “convicted of a separate count for”
obstructive conduct. USSG § 3C1.1 cmt. n.5. Less than two weeks after being
released on bail following his second arrest, Murray snuck into a conference room
at his lawyer’s firm and used a firm computer to access the Internet, smuggled a
tablet into the conference room and hid it in the ceiling, and again attempted to
contact his international finance contacts. As a result of these activities in violation
of his second bond, Murray was indicted and ultimately convicted of a separate
count of contempt of court. The imposition of the obstruction of justice
enhancement was not in error.
Third, Murray challenges the district court’s imposition of a two-level
enhancement for use of a special skill under USSG § 3B1.3. We review the district
court’s interpretation of the Sentencing Guidelines de novo and its “application of
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the Sentencing Guidelines to the facts of a given 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). Murray held a Series 7 license and had years of
experience in the financial industry. These “special skills” “significantly
facilitated the commission” of his underlying offenses, USSG § 3B1.3 cmt. n.2,
because they assisted his creation of the fund and solicitation of investments. It
was not an abuse of discretion to impose the special skill enhancement.
Fourth, Murray claims that the district court should not have included his
1998 misdemeanor conviction in the calculation of his criminal history category.
We review the district court’s factual findings for clear error and its application of
the Sentencing Guidelines to the facts for abuse of discretion. United States v.
Mohamed, 459 F.3d 979, 985 (9th Cir. 2006). A court cannot include in the
defendant’s criminal history a prior sentence of less than thirteen months that was
imposed more than ten years before the commencement of the instant crime.
USSG § 4A1.2(e). Because Murray made a specific factual objection to the PSR’s
determination of the date on which his wire fraud violations commenced, the
district court was obligated by Fed. R. Crim. P. 32 to rule on the dispute.
Nevertheless, any error that may have occurred in the district court’s factual
determination, or lack thereof, was harmless because the district court ultimately
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used the correct criminal history category to determine Murray’s sentence. See
United States v. Cruz-Gramajo, 570 F.3d 1162, 1174 (9th Cir. 2009) (holding that
a potential error resulting in the same criminal history category, and thus the same
Sentencing Guidelines range, was harmless).
Fifth, Murray claims that the district court erred in refusing to offset the total
loss calculation by the amount of assets seized by the government. In United
States v. West Coast Aluminum Heat Treating Co., 265 F.3d 986, 992 (9th Cir.
2001), we held “that the victim’s loss should be offset by the victim’s benefit.” In
United States v. Bright, 353 F.3d 1114, 1119 (9th Cir. 2004), however, we refused
to offset losses where the government seized money from the defendant’s home
and company bank account. Here, the district court explained that “[t]here was no
real security interest” in the MNT fund because investors did not receive
“something sort of quid pro quo . . . for instance, stock.” Instead, the court
commented that “Mr. Murray had complete control over the assets” and “refuse[d]
any kind of payment or redemption when many of the shareholders or investors
asked for it.” Regardless of whether this was a question of fact or a mixed
question of law and fact, we find no error in the district court’s conclusion that the
victims lacked a security interest in these funds.
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Sixth, Murray contends that the district court erred by including loss
attributable to Moneris Solutions (Moneris) in the calculation of total loss. Any
error that may have occurred here was harmless.1 The district court calculated the
total loss as approximately $3.4 million. Subtracting the $279,785.37 of losses
sustained by Moneris from this total loss would result in an adjusted loss of
approximately $3.1 million. Under USSG § 2B1.1(b)(1)(I), both a $3.4 million
total loss and a $3.1 million total loss result in the same 16-level enhancement.
Seventh, Murray claims that the district court erred by awarding victim
restitution to Lisa Brigulio and Karyn McKay. “We review de novo the legality of
a restitution order.” United States v. Fu Sheng Kuo, 620 F.3d 1158, 1162 (9th Cir.
2010) (quoting United States v. Peterson, 538 F.3d 1064, 1074 (9th Cir. 2008)).
“We review the district court’s underlying factual findings for clear error.” Id.
“[W]hen the crime of conviction includes a scheme, conspiracy, or pattern of
criminal activity as an element of the offense, . . . the restitution order [may]
include acts of related conduct for which the defendant was not convicted.” United
States v. Brock-Davis, 504 F.3d 991, 999 (9th Cir. 2007) (alterations in original)
(citation omitted). It was not error, therefore, for the court to allow restitution for
1
The government argues that Murray’s objection to the inclusion of
Moneris’ losses was waived before the district court. Because we find that any
potential error was harmless, we decline to reach the issue of waiver.
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victims whose losses resulted from misrepresentations not charged directly in the
indictment. Whether or not Brigulio and McKay relied on the misrepresentations
they allegedly heard is a factual question for which the trial court receives
deference. The disputes Murray raises do not rise to the level of “clear error.”
Finally, Murray challenges the district court’s imposition of special
conditions of supervised release Nos. 8 and 10. We review de novo whether a
condition of supervised release exceeds a permissible statutory penalty or violates
the Constitution. United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009).
Under 18 U.S.C. § 3583(d), a sentencing court may order conditions of supervised
release that (1) are reasonably related to the nature and circumstances of the
offense and the history and characteristics of the defendant, the need to adequately
deter criminal conduct, to protect the public from further crimes of the defendant,
and to provide the defendant with needed services; (2) involve no greater
deprivation of liberty than is reasonably necessary to achieve these purposes; and
(3) are consistent with any pertinent Sentencing Commission policy statements.
Here, both conditions are reasonably related to the nature of the offense and the
need to protect victims from further fraud. Moreover, both conditions involve no
greater deprivation of liberty than is reasonably necessary. Condition No. 8 does
not prohibit Murray from interacting with anyone beyond a limited class of former
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victims, and condition No. 10 only prohibits Murray from using the Internet to
access information about investments, trading, and financial advice. Under the
circumstances here, these conditions do not materially infringe any especially
important liberty interests that would trigger additional procedural safeguards.
Accordingly, Murray’s conviction for aggravated identity theft in Count 21
is VACATED and this case is REMANDED to the district court for resentencing.
The district court is AFFIRMED on all other issues.
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United States v. James Murray
Combined Opinion