NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 30 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-10076
Plaintiff - Appellee, D.C. No. 2:09-cr-00477-KJD-RJJ-
1
v.
GAIL BILYEU, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted May 17, 2012
San Francisco, California
Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.
Gail Bilyeu appeals the criminal forfeiture order and the term of supervised
release imposed by the district court. We affirm. Because the parties are familiar
with the factual and procedural history of this case, we need not recount it here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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I
When proper notice is given and forfeiture is authorized by statute, “the
district court must impose criminal forfeiture in the amount of the ‘proceeds’ of the
crime.” United States v. Newman, 659 F.3d 1235, 1239 (9th Cir. 2011). The
“proceeds” of a “fraudulently obtained loan equal the amount of the loan” and, in a
conspiracy, the “proceeds” “equal the total amount of the loans obtained by the
conspiracy as a whole.” Id. at 1244.
Despite the fact that the government listed three forfeiture statutes in the
indictment, Bilyeu had proper notice of the forfeiture because the indictment listed
specific forfeiture allegations, including the specific amount of the requested
money judgment.
Bilyeu also argues the district court erred by defining the “proceeds” of her
offense as the total amount of loans she and her co-conspirator fraudulently
borrowed. However, Bilyeu’s interpretation of the term “proceeds” is foreclosed
by Newman, 659 F.3d at 1244.
Sufficient evidence in the record supports the factual basis of the $2,654,000
criminal forfeiture order. Bilyeau agreed with the amounts alleged in the
indictment at her change of plea hearing. The government also supported its
requested forfeiture amount by filing evidentiary exhibits with the district court.
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II
The district court did not plainly err by misstating Bilyeu’s possible term of
supervised release during the Rule 11 colloquy. “[A] defendant who seeks reversal
of his conviction after a guilty plea, on the ground that the district court committed
plain error under Rule 11, must show a reasonable probability that, but for the
error, he would not have entered the plea.” United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004). Bilyeu has not demonstrated that the district court plainly
erred because the record does not show a “reasonable probability” that she would
not have entered the plea but for the error.
AFFIRMED.
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