FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50268
Plaintiff-Appellee,
D.C. No.
v.
5:12-cr-00065-VAP-2
CHRISTOPHER PAUL GEORGE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief District Judge, Presiding
Argued and Submitted September 11, 2019
Pasadena, California
Filed February 4, 2020
Before: John B. Owens, Ryan D. Nelson,
and Eric D. Miller, Circuit Judges.
Opinion by Judge Miller
2 UNITED STATES V. GEORGE
SUMMARY *
Criminal Law
The panel affirmed a sentence for mail fraud, wire fraud,
and conspiracy, in a case in which the defendant co-owned
and operated companies that defrauded nearly 5,000
homeowners out of millions of dollars.
The panel held that U.S.S.G. § 2B1.1(b)(2)(C), which
provides for a six-level enhancement if the offense “resulted
in substantial financial hardship to 25 or more victims,”
requires the sentencing court to determine whether the
victims suffered a loss that was significant in light of their
individual financial circumstances. The panel held that the
district court did not abuse its discretion in concluding that
25 or more victims suffered substantial financial hardship.
The panel wrote that the district court would not have been
required to identify specific victims by name even if it had
been asked to do so, and that it was sufficient for the
government to produce evidence for enough of the victims
to allow the sentencing court reasonably to infer a pattern.
The panel held that both but-for and proximate causation
were present.
The panel held that the district court did not abuse its
discretion in imposing a sentence within the Sentencing
Guidelines range. The panel wrote that, as the defendant
recognizes, United States v. Green, 722 F.3d 1146 (9th Cir.
2013), forecloses his argument that the restitution order
violated Apprendi v. New Jersey, 530 U.S. 466 (2000),
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GEORGE 3
because the judge, rather than a jury, determined the amount
of the loss caused by the defendant.
COUNSEL
Benjamin L. Coleman (argued), Coleman & Balogh LLP,
San Diego, California, for Defendant-Appellant.
Aron Ketchel (argued) and Tritia L. Yuen, Assistant United
States Attorneys; L. Ashley Aull, Chief, Criminal Appeals
Section; Nicola T. Hanna, United States Attorney; United
States Attorney’s Office, Los Angeles, California; for
Plaintiff-Appellee.
OPINION
MILLER, Circuit Judge:
Christopher George co-owned and operated companies
that defrauded nearly 5,000 homeowners out of millions of
dollars. A jury found him guilty of mail fraud, wire fraud,
and conspiracy, in violation of 18 U.S.C. §§ 1341, 1343, and
1349. The district court originally sentenced him to
240 months of imprisonment and ordered him to pay more
than $7 million in restitution.
George appealed. We affirmed his conviction but
vacated his sentence and remanded to the district court with
instructions to recalculate the total offense level and to
consider recent changes to the United States Sentencing
Guidelines in determining a reasonable sentence. United
States v. George, 713 F. App’x 704, 705 (9th Cir. 2018). At
resentencing, George asked the district court to apply the
4 UNITED STATES V. GEORGE
newer version of the Guidelines (reflecting the November
2015 amendments), and the government agreed. Using the
new Guidelines, the district court applied many of the same
enhancements and reduced George’s sentence by just five
months, to 235 months. It also left the restitution order in
place.
George again challenges his sentence. He focuses on the
district court’s application of section 2B1.1(b)(2)(C) of the
Guidelines, which provides for a six-level enhancement if
the offense “resulted in substantial financial hardship to 25
or more victims.” U.S.S.G. § 2B1.1(b)(2)(C) (2016). We
review the district court’s interpretation of the Sentencing
Guidelines de novo, its factual findings for clear error, and
its application of the Guidelines to the facts for abuse of
discretion. United States v. Gasca-Ruiz, 852 F.3d 1167,
1170–72 (9th Cir. 2017) (en banc). We affirm.
George argues that the district court erred in finding that
25 or more victims suffered substantial financial hardship.
Addressing that argument requires us to examine the
meaning of “substantial financial hardship,” a term we have
not previously interpreted. We conclude that section
2B1.1(b)(2) requires the sentencing court to determine
whether the victims suffered a loss that was significant in
light of their individual financial circumstances.
We begin by considering the first word in the operative
part of the provision: the adjective “substantial.” The
Supreme Court has recognized that “substantial” indicates
“considerable” or “to a large degree.” Toyota Motor Mfg.,
Ky., Inc. v. Williams, 534 U.S. 184, 196 (2002) (citing
Webster’s Third New International Dictionary 2280
(1976)); see also Black’s Law Dictionary 1728 (11th ed.
2019) (defining “substantial” as “material”); Webster’s
Third New International Dictionary 2280 (1993) (“being of
UNITED STATES V. GEORGE 5
moment: important”). By including “substantial” before
“financial hardship,” the provision excludes minor or
inconsequential financial harms. That conclusion is
supported by the noun “hardship,” which itself suggests
something more than a mere inconvenience. See Webster’s
Third New International Dictionary 1033 (1993)
(“suffering, privation”). In other words, to be substantial, the
victim’s financial hardship must be significant.
Significance and substantiality are relative concepts: to
satisfy section 2B1.1(b)(2), financial hardship must be
substantial in comparison to something else. Cf. United
States v. Munster-Ramirez, 888 F.2d 1267, 1270 (9th Cir.
1989) (examining the Guidelines’ reference to “a substantial
portion of [the defendant’s] income” and concluding that it
“must be defined in relative terms”). The most natural point
of comparison is the financial condition of the victim.
The application notes in the commentary to the
Guidelines point in the same direction. See Stinson v. United
States, 508 U.S. 36, 38 (1993) (Guidelines commentary “is
authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading
of, that guideline.”). The notes provide:
In determining whether the offense resulted
in substantial financial hardship to a victim,
the court shall consider, among other factors,
whether the offense resulted in the victim—
becoming insolvent;
filing for bankruptcy . . . ;
6 UNITED STATES V. GEORGE
suffering substantial loss of a
retirement, education, or other
savings or investment fund;
making substantial changes to his or
her employment, such as postponing
his or her retirement plans;
making substantial changes to his or
her living arrangements, such as
relocating to a less expensive home;
and
suffering substantial harm to his or
her ability to obtain credit.
U.S.S.G. § 2B1.1 cmt. n.4(F). The notes reinforce the
conclusion that our inquiry must consider how the loss
affects the victim. For some victims, a loss of, say, $10,000
might not have any of the listed effects. For others, a much
smaller loss might have such effects. The provision thus
requires a focus on the victims’ individual circumstances, a
focus that is consistent with the Sentencing Commission’s
goal in amending section 2B1.1 in 2015 to “place greater
emphasis on the extent of harm that particular victims
suffer.” Sentencing Guidelines for United States Courts,
80 Fed. Reg. 25,782-01, 25,791 (May 5, 2015).
Our interpretation of section 2B1.1(b)(2) accords with
that of other courts of appeals that have examined the
provision. As the Seventh Circuit has explained, “whether a
loss has resulted in a substantial hardship . . . will, in most
cases, be gauged relative to each victim,” and “[t]he same
dollar harm to one victim may result in a substantial financial
hardship, while for another it may be only a minor hiccup.”
United States v. Minhas, 850 F.3d 873, 877 (7th Cir. 2017);
UNITED STATES V. GEORGE 7
accord United States v. Castaneda-Pozo, 877 F.3d 1249,
1252 (11th Cir. 2017) (per curiam) (“[T]he inquiry is
specific to each victim.”); United States v. Brandriet,
840 F.3d 558, 561 (8th Cir. 2016) (per curiam) (examining
the impact of the conduct on “the cost of [the victim’s] living
expenses”).
In advocating a narrower understanding of “substantial
financial hardship,” George relies on our decision in United
States v. Merino, 190 F.3d 956 (9th Cir. 1999). In that case,
we examined a Guidelines enhancement for environmental
offenses for which “cleanup required a substantial
expenditure.” Id. at 958 (quoting U.S.S.G. § 2Q1.2(b)(3)).
According to George, because we held in Merino that a
$32,000 cleanup expenditure was not substantial, it follows
that his victims’ losses, most of which were smaller than
that, “would not be substantial.” In fact, we recognized in
Merino that substantiality depends on context: “[W]hat is a
‘substantial’ expenditure for one thing, such as buying
furniture, is not very ‘substantial’ for another, such as if one
were purchasing a dwelling for $32,000.” Id. Our
interpretation of section 2B1.1(b)(2) is faithful to that
principle.
So was the district court’s decision here. The court found
that “[t]here was clear and convincing evidence here in the
form of trial testimony from numerous victims that the
victims experienced substantial financial hardship because
of this offense.” George’s companies targeted distressed
homeowners, falsely claiming to be operating under a loan-
modification program sponsored by the federal government.
Most of the victims paid fees of between $1,000 and $3,000,
and, as the district court explained, “given the state that most
of the victims were in, that was not an insubstantial sum at
the time.” Victims were instructed to stop making payments
8 UNITED STATES V. GEORGE
on their mortgages, and some “lost their residences because
they either made their payments to [George’s companies]
instead of to their lender or, in some instances, their names
were forged on documents which led to the foreclosure of
their property.”
George concedes that his victims lost between $1,000 to
$3,000 in fees paid to his companies, but he asserts that the
loss of those amounts does not constitute substantial
financial hardship. George is right that, for some victims,
causing the loss of a few thousand dollars would not be
substantial enough to trigger the enhancement. But the
district court did not clearly err in determining that “given
the state that most of [George’s] victims were in,” a few
thousand dollars was indeed substantial. And at least
25 victims lost much more than that amount in fees—some
lost their homes; some filed for bankruptcy; and many others
borrowed money to avoid foreclosure, fell further behind on
mortgage payments, renegotiated their loans on worse terms,
or paid additional penalties and fines. The district court did
not abuse its discretion in concluding that 25 or more victims
suffered substantial financial hardship.
George objects that the district court did not identify
25 specific victims who suffered substantial hardship. We do
not agree that the district court would have been required to
identify specific victims by name even if it had been asked
to do so. We have held that estimating losses does not require
“absolute precision,” and a district court may “make a
reasonable estimate . . . based on the available information.”
United States v. Zolp, 479 F.3d 715, 719 (9th Cir. 2007). We
conclude that the same is true of counting victims. Other
courts have rejected the suggestion that a sentencing court
must “identif[y] which of the particular victims it [is]
including in its calculation.” Minhas, 850 F.3d at 879; see
UNITED STATES V. GEORGE 9
also United States v. Poulson, 871 F.3d 261, 269 (3d Cir.
2017). Instead, it was “sufficient for the government to
produce evidence for enough of the [victims] to allow the
sentencing court reasonably to infer a pattern.” United
States v. Pham, 545 F.3d 712, 720 n.3 (9th Cir. 2008).
In any event, George conceded that at least 25 of his
victims lost between $1,000 to $3,000 in fees and stopped
paying their mortgages as a result of his scheme, and he
merely raised legal challenges to the application of the
section 2B1.1(b)(2)(C) enhancement. Because he never
challenged any specific factual inaccuracies in the
presentence report, the district court correctly accepted the
report’s findings, which showed that more than 25 victims
suffered significant losses. See Fed. R. Crim. P. 32(i)(3)(A);
United States v. Christensen, 732 F.3d 1094, 1102 (9th Cir.
2013). The district court had no obligation to identify each
of the 25 victims by name.
Even if 25 or more victims suffered substantial financial
hardship, George says, the district court still should not have
applied the enhancement because his conduct was not the
cause of the hardship. Section 2B1.1(b)(2) refers to conduct
that “resulted in” substantial financial hardship, language
that we have interpreted to impose a causation requirement.
See United States v. Hicks, 217 F.3d 1038, 1048–49 (9th Cir.
2000). As relevant here, that requirement embraces two
distinct concepts: but-for causation and proximate causation.
See Burrage v. United States, 571 U.S. 204, 210 (2014). But-
for causation is a relatively undemanding standard: a but-for
cause of a harm can be anything without which the harm
would not have happened. See Stephens v. Union Pac. R.R.
Co., 935 F.3d 852, 855 (9th Cir. 2019). Proximate causation
is a more restrictive requirement that excludes some of the
improbable or remote causal connections that would satisfy
10 UNITED STATES V. GEORGE
a pure but-for cause standard. Generally, proximate
causation exists only when a harm was a foreseeable result
of the wrongful act. See United States v. Pineda-Doval,
614 F.3d 1019, 1028 (9th Cir. 2010). The government
suggests that section 2B1.1(b)(2) does not require
foreseeability, but proximate cause is a well-established
principle of the common-law, and we presume that the
Sentencing Commission did not mean to dispense with it
without saying so. Cf. Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 132 (2014); Hicks,
217 F.3d at 1049. We agree with the government, however,
that both but-for and proximate causation were present here.
The district court expressly found but-for causation, and
its finding was not clearly erroneous. George induced his
victims to pay him money and, in some cases, to stop making
mortgage payments. The court could reasonably infer that
George’s conduct was the direct cause—and certainly a but-
for cause—of the ensuing financial hardship. See United
States v. Laurienti, 611 F.3d 530, 557 (9th Cir. 2010)
(concluding that it was reasonable to infer that all of the
victims who paid into the investment scheme were in fact
“duped by the conspiracy”). Clear and convincing evidence
supports the district court’s finding that the necessary
number of victims suffered substantial financial hardship as
a result of George’s offense.
George emphasizes that he targeted victims who had
fallen behind on their mortgage payments, and he asserts that
he did not cause them financial hardship because they were
going to lose their homes anyway, even if he had not
defrauded them. “I stole only from those who were already
poor” is not often advanced as an argument in mitigation,
and we find it unpersuasive. As we have explained, a
defendant inflicts “substantial financial hardship” when he
UNITED STATES V. GEORGE 11
causes a significant adverse change in his victims’ financial
situation—including, as George did, by increasing the
desperation of those already struggling.
The proximate cause requirement is also satisfied here
because the record leaves no doubt that the consequences of
George’s actions were foreseeable. As the co-owner of the
fraudulent businesses, George personally addressed his
victims’ complaints, and he knew that his employees were
supplying false information to victims and had instructed
them to stop paying their mortgages. He has not suggested
that any intervening event was a more direct cause of the
victims’ losses. George notes that the district court did not
make an explicit proximate-cause finding, but there was no
need for it to do so. George’s arguments about proximate
cause were derivative of his arguments about but-for cause.
The district court fully explained its rejection of George’s
arguments about but-for cause, and its reasoning applied
equally to proximate cause.
In addition to disputing the application of section
2B1.1(b)(2), George raises two other challenges to his
sentence. We reject both.
First, George contends that his sentence was
substantively unreasonable under 18 U.S.C. § 3553(a). The
district court extensively discussed the applicability of the
section 3553(a) factors, including the mitigating
circumstances George presented. It also recognized the
seriousness of George’s offense, noting that it was “a large
scheme, national in scope” that had “affected thousands,
most of them already in danger of losing their residences,
including retired persons who had worked for decades,
lacked formal education, and whose only asset was the house
that they had acquired and lived in for decades.” And it
emphasized George’s leadership role in the scheme. Based
12 UNITED STATES V. GEORGE
on its consideration of all the factors, the district court did
not abuse its discretion in imposing a sentence within the
Guidelines range. See United States v. Carty, 520 F.3d 984,
993, 995 (9th Cir. 2008) (en banc).
Second, George argues that the restitution order violated
Apprendi v. New Jersey, 530 U.S. 466 (2000), because the
judge, rather than a jury, determined the amount of the loss
George caused. As George recognizes, however, we have
held that Apprendi does not apply to restitution orders. See
United States v. Green, 722 F.3d 1146, 1149, 1151 (9th Cir.
2013).
AFFIRMED.