United States v. Seth Sundberg

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 22 2012

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 11-10338

Plaintiff - Appellee, D.C. No. 5:09-cr-00928-JF-1

v.
MEMORANDUM*
SETH SUNDBERG,

Defendant - Appellant.

Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding

Submitted October 17, 2012**
San Francisco, California

Before: FISHER, TALLMAN, and CALLAHAN, Circuit Judges.

Defendant-appellant Seth Sundberg (“Sundberg”) appeals the district court’s

entry of judgment on his guilty plea. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Under Federal Rule of Criminal Procedure 11(b)(1)(K), a judge must inform

the defendant of, and determine that the defendant understands, the court’s

authority to order restitution. Despite this express requirement, a judge’s failure to

comply “is harmless error if it does not affect substantial rights.” Fed. R. Crim.

Pro. 11(h). We have held that a district court’s failure to advise a defendant of its

restitution authority is harmless if “the defendant was advised he was subject to a

fine in an amount in excess of the restitution imposed.” United States v. Crawford,

169 F.3d 590, 592 (9th Cir. 1999) (emphasis added). In this case, Sundberg

admitted the facts of the indictment, including his unlawful receipt of a $5 million

tax refund. Although the district court failed to advise Sundberg of its restitution

authority, the court affirmatively warned Sundberg that he could face “a $250,000

fine or twice the value of the gross gain or loss,” thus putting Sundberg on notice

that he could suffer a fine in excess of $10 million. Because this figure is far

higher than Sundberg’s eventual $2,488,613.38 restitution order, the error was

harmless.

AFFIRMED.