NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 20-50256
20-50258
Plaintiff-Appellee,
D.C. Nos. 2:16-cr-00538-RGK-4
v. 2:16-cr-00538-RGK-5
JAMIE MATSUBA and TAKAHARO MEMORANDUM
THOMAS MATSUBA,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted September 7, 2021**
San Francisco, California
Before: OWENS and BUMATAY, Circuit Judges, and MOLLOY,*** District
Judge.
Following a seven-day jury trial, Jamie Matsuba and Takaharo Thomas
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.
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Matsuba were convicted of mortgage fraud and conspiracy to commit mortgage
fraud, wire fraud, and identity theft based on a multi-million-dollar foreclosure
rescue scheme targeting distressed homeowners in the Los Angeles area from 2008
to 2015. They were sentenced, by application of an 18-level loss enhancement, to
135 months and 168 months, respectively. We previously affirmed their
convictions but remanded the case for resentencing based on the district court’s
loss and restitution calculations. United States v. Matsuba, 809 F. App’x 390 (9th
Cir. 2020). Following remand, the district court once again applied the 18-loss
enhancement but reduced the restitution award. The defendants once again appeal.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm the
defendants’ sentences but remand the restitution award on limited grounds.
1. Because the district court explicitly determined that the rents at issue were
a “loss” under §2B1.1(b)(1) of the United States Sentencing Guidelines, the court
was not required to engage in the “gain” substitution analysis as argued by the
defendants. Nor did the district court err in its characterization. The rent that the
Matsubas charged the original homeowners and other tenants after acquiring the
properties provides a reasonable basis for estimating actual loss to the victims
because of their fraud. In considering a similar scheme we concluded that it was
“pellucid that the rents [the defendant] received represent a value that he took from
the owner-victims. It is, by the way, the very value (perhaps among others) that he
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intended to take from them. Thus, the use of that figure has the virtue of
representing actual loss, intended loss and even the offender’s gain.” United States
v. Harper, 32 F.3d 1387, 1392 (9th Cir. 1994) (applying USSG §2F1.1 (1994)).
That conclusion remains consistent with the Guideline definition of loss. See
USSG §2B1.1, comment. (n.3(A)) (2018). And the possibility that mortgage
lenders could also be victims of the Matsubas’ scheme does not prevent those
divested of the rent payments from being victims as well.
2. The record supports a loss amount of $3.5 to $9.5 million. As we have
previously recognized, “[t]he court need not make its loss calculation with absolute
precision; rather it need only make a reasonable estimate of the loss based on the
available information.” United States v. Zolp, 479 F.3d 715, 719 (9th Cir. 2007);
USSG §2B1.1, comment. (n.3(C)). Here, the range adopted by the district court
was consistent with the government’s loss calculation (approximately $19 million)
less reductions proposed by the defendant’s sentencing expert (approximately $13
million). And, as stated by the district court, that determination was
“conservative.” See United States v. Armstead, 552 F.3d 769, 780 (9th Cir. 2008)
(reiterating that “deference to a district court’s loss calculation is warranted
because the district court is in a unique position to assess the evidence”) (citation
and internal quotation marks omitted). Accordingly, the district court did not
clearly err in its calculation of the loss amount. See United States v. Garro, 517
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F.3d 1163, 1167 (9th Cir. 2008).
3. Regarding restitution, we decline to revisit the district court’s valuation
methodology or the reliability of the underlying evidence in this appeal. See
United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995). Nevertheless, the
government “acknowledges error with respect” to certain aspects of the restitution
award, specifically involving mortgage payments offsets and incorrectly identified
victims. Given the government’s concession, a limited remand is appropriate to
permit the district court to ensure all restitution offsets have been included and the
proper victims named.
4. Finally, the defendants fail to show this matter is a “rare and
extraordinary circumstance” that requires reassignment to a different district judge.
Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 1045 (9th Cir. 2015).
We remand for the limited reconsideration of the restitution award
consistent with this disposition. AFFIRMED IN PART, VACATED AND
REMANDED IN PART.
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