BENNETT, Senior District Judge:
On July 14, 2010, Neil Thomsen, then a 67-year-old retired engineer turned tax preparer, was charged, as the sole defendant, with 34 federal offenses arising from a tax fraud scheme. On December 8, 2011, a jury convicted him of 32 of those offenses, after the prosecution withdrew two. He was sentenced to fifteen years of imprisonment and ordered to pay just over $500,000 in restitution. He now appeals his conviction of two offenses, the restitution order, and the calculation of his advisory guidelines sentencing range. We affirm in part, reverse in part, and remand for further proceedings.
The charges against Thomsen arose from an alleged tax fraud scheme, beginning on a date unknown and continuing through about April 15, 2009, that is, for the 2009 tax season relating to the 2008 tax year. The Indictment alleged the essence of the scheme was "that defendant THOMSEN fraudulently used the personal identification, including names and [social security numbers], of individuals, for whom he prepared tax returns or who had their tax returns prepared by an entity where defendant THOMSEN was employed, in order to file false income tax returns with the IRS and to obtain tax refunds and tax preparation fees to which he was not entitled." Indictment, ¶ 11. Two of the charges require specific mention, as they are the only convictions that Thomsen appeals: In Count 33, Thomsen was charged with fraud and misuse of visas, permits, and other documents, in violation of 18 U.S.C. § 1546(a), arising from his use, on or about April 25, 2009, of a United States passport card bearing his photograph, but the name and biographical information of another person, on an application for an Earth Class Mail account; and, in Count 34, he was charged with aggravated identity theft, in violation of 18 U.S.C. § 1028A, during and in relation to the felony passport card fraud offense.
On May 31, 2011, well before Thomsen's trial on the first Indictment, Thomsen and three co-defendants were charged in a separate Indictment, in a separate case, with conspiring, from a date unknown through about May 2011, to defraud the United States by obtaining, and aiding others to obtain, the payment of false, fictitious, and fraudulent claims against the United States, specifically, income tax refunds, in violation of 18 U.S.C. § 286 and 18 U.S.C. § 2. The second Indictment alleged overt acts in furtherance of this conspiracy between December 30, 2009, and March 29, 2010.
A Presentence Report (PSR) concerning Thomsen, filed July 20, 2012, indicates that the probation officer used the November 1, 2011, Guidelines Manual. The PSR calculated an advisory guidelines range of 135 to 168 months of imprisonment, recommended a sentence approximately in the middle of that range, and recommended restitution in the amount of $317,337. At the first of three sentencing hearings, on March 4, 2013,
On April 17, 2013, the probation officer filed an Addendum To Presentence Report (Addendum), addressing the parties' objections to the original PSR. Neither the defendant nor the AUSA objected to the use of the 2011 Guideline Manual in the original PSR as the use of the wrong year of the Manual, nor did the probation officer recognize this crucial mistake. The Addendum did, however, recalculate Thomsen's advisory guidelines sentence. Those calculations are significant to Thomsen's appeal.
Specifically, for offenses in Group One (Counts 1-4, 7-16, and 17-24), the Addendum started with a base offense level of 7, pursuant to U.S.S.G. § 2B1.1(a)(1); added 14 levels for an intended loss between $400,000 and $1,000,000, pursuant to U.S.S.G. § 2B1.1(b)(1)(H); added 6 levels for more than 250 victims, pursuant to U.S.S.G. § 2B1.1(b)(2)(C); added 2 levels for "sophisticated means," pursuant to U.S.S.G. § 2B1.1(b)(10)(C); added 2 levels for using victims' social security numbers to produce other means of identification, identified as personal tax returns, pursuant to U.S.S.G. § 2B1.1(b)(11)(C)(I); added 2 levels for abuse of a position of trust, because Thomsen was a tax preparer to whom the personal information of others had been entrusted, and he used that information for his own financial gain, pursuant to U.S.S.G. § 3B1.3; and added 2 levels for obstruction of justice, based on false testimony at trial, pursuant to U.S.S.G. § 3C1.1. These calculations resulted in an adjusted offense level of 35 for Group One.
For the offense in Group Two (Count 33), the Addendum started with a base offense level of 7, pursuant to U.S.S.G. § 2L2.2(c)(1), using the cross-reference to U.S.S.G. § 2X1.1, because Thomsen used a passport or visa in the commission of a felony, with underlying substantive offenses of mail fraud, false claims, and fraudulent use of a social security card, making the corresponding offense level the one set out in U.S.S.G. § 2B1.1. The Addendum then made the identical adjustments to the offense level that it had made for the Group One offenses. These calculations, again, resulted in an adjusted offense level of 35.
The Addendum determined that the multiple count adjustment, pursuant to U.S.S.G. § 3D1.4, required an increase of two levels to 37. The Addendum then rejected any adjustment for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a). With a criminal history category of I, these calculations resulted in an advisory guidelines range of 210 to 262 months of imprisonment. The Addendum recommended a 72-month sentence (concurrent as to each count), however, based on the 18 U.S.C. § 3553(a) factors. The Addendum then applied a mandatory sentence of 2 years, consecutively, for each of Counts 25 through 32 and 34, which would have increased the sentence to 24 years (288 months). The Addendum recommended that the mandatory 2-year sentences on these counts run concurrently, however, which raised the recommended sentence to only 96 months (8 years).
At Thomsen's final sentencing hearing, the district judge heard arguments from the parties, then imposed sentence. More specifically, the district judge stated,
The district judge concluded that some objections (nos. 17-19) would have no effect on the sentence that he would impose, then reiterated that he was "adopt[ing] probation's findings and recommendations in connection" with the remaining objections.
Next, the district judge summarized and accepted the sentencing calculations in the Addendum; described the seriousness of the offense, and his reasons for rejecting both the prosecution's request for a sentence of 416 months and the probation officer's recommendation of 96 months; and explained his application of the § 3553(a) factors. Ultimately, the district judge imposed a sentence of 15 years (180 months). The district judge also ordered restitution in the amount of $515,257.75, with a credit of $61,545, and a remaining balance of $453,712.75 to be paid to the IRS, which included the loss in the second case against Thomsen and three co-defendants. The district judge expressly ordered "that the restitution in [the second case], in the amount of $197,922.04, be made payable jointly and severally with the other co-defendants in that case."
Thomsen filed timely notices of appeal. Thomsen's request to represent himself pro se on this appeal was denied, and his current counsel was appointed. Thomsen has limited his appeal to three issues: (1) the denial of his motion for judgment of acquittal as to Counts 33 and 34; (2) the restitution order; and (3) errors in sentencing, although this last issue has numerous subissues. In his brief, Thomsen states, "Aside from counts 33 and 34, he neither challenges his conviction nor seeks to have it set aside."
Thomsen argues, first, that the district court should have granted his motion for judgment of acquittal as to Counts 33 and 34, which charged a violation of 18 U.S.C. § 1546 and a related aggravated identity theft offense, respectively. Thomsen contends that § 1546 does not apply to a passport card.
We review de novo questions of statutory interpretation. See, e.g., Fang Lin Ai v. United States, 809 F.3d 503, 506 (9th Cir. 2015); United States v. Kowalczyk, 805 F.3d 847, 856 (9th Cir. 2015). We recently stated,
Generally, we may turn to legislative history for guidance only "[w]hen a statute is susceptible to two or more meanings,... [b]ut `the plainer the language, the more convincing contrary legislative history must be.'" Schroeder v. United States, 793 F.3d 1080, 1085 (9th Cir. 2015) (quoting Church of Scientology of Cal. v. U.S. Dep't of Justice, 612 F.2d 417, 422 (9th Cir. 1979)); United States v. Crooked Arm, 788 F.3d 1065, 1073 (9th Cir. 2015) ("We may consider legislative history if the statute is ambiguous or if `the legislative history clearly indicates that Congress meant something other than what it said.'" (quoting Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir. 2001) (en banc), in turn quoting Perlman v. Catapult Entm't, Inc., 165 F.3d 747, 753 (9th Cir. 1999))). This limitation notwithstanding, we have also used legislative history to confirm an interpretation guided by other canons. See, e.g., United States v. Hui Hsiung, 778 F.3d 738, 754 (9th Cir. 2014) (noting, "The legislative history supports this statutory interpretation," based on other canons).
The parties have framed the statutory interpretation issue in this case primarily in terms of whether we should follow United States v. Krstic, 558 F.3d 1010 (9th Cir. 2009), or United States v. Franklin, No. CR 07-967 PSG, 2011 WL 3424448 (C.D.Cal. Aug. 5, 2011), aff'd, 501 Fed. Appx. 629 (9th Cir. 2012) (unpubl. mem.). We conclude that Krstic, while relevant to some extent, is not controlling on the issues presented here; that our decision on appeal in Franklin is not controlling; and that we are not convinced by the district court's interpretation of the statute in Franklin.
The text of § 1546(a) provides, in pertinent part, as follows:
18 U.S.C. § 1546(a) (emphasis added). Thomsen's argument that the meaning of this statute is "plain" is belied by our observation in Krstic that, "with this section, Congress has achieved in a single 124-word sentence a level of confusion it usually takes pages to create." 558 F.3d at 1013. The confusion, here, involves the scope of the general or catchall "other document" clauses: Are the "other documents" limited to immigration-related documents, or can they include a U.S. passport or U.S. passport card?
Although the statute is confusing, we are not without guidance. First, we observe that § 1546(a) plainly and expressly applies to "whoever" engages in the proscribed conduct, not just to "any alien." Neal, 776 F.3d at 652. The government argues this means that the statute can apply to documents, such as U.S. passports, used by U.S. citizens, not just to documents used by aliens. It is true that, some time ago, in United States v. Knight, 514 F.2d 1286 (5th Cir. 1975), the court rejected the argument that what is now the third paragraph of § 1546(a)
Id.
The government's argument that "whoever" demonstrates that § 1546 applies to U.S. passports, because it applies to American citizens, goes too far. Rather, we conclude that the use of "whoever" in § 1546(a) identifies only the status of the perpetrator, not the nature of the documents involved in the proscribed conduct. For example, looking only to the plain text of § 1546(a), it is clear that a United States citizen could violate this provision by using an alien registration receipt card, which is an immigration-related document, knowing that it was forged to bear his or her name, perhaps to disguise his or her identity as a fugitive. See 18 U.S.C. § 1546(a) (providing for the punishment of "whoever ... uses... [an] alien registration receipt card ... knowing it to be forged"). Thus, the fact that the statute applies prohibitions on the conduct of United States citizens does not mean that the documents to which it applies necessarily include documents that are not immigration-related, such as U.S. passports issued to U.S. citizens.
Continuing our examination of the plain text of the statute, we note that the words "immigrant and nonimmigrant" precede the list of documents to which § 1546(a) applies. If "immigrant and nonimmigrant" modify all of the listed documents, then the scope of the statute would seem to be restricted to immigration-related documents. We agree with the district court in Franklin that the plain text of § 1546(a) does not preclude a reading of the adjectives "immigrant and nonimmigrant" as modifying all of the listed documents. 2011 WL 3424448 at *5. Under that reading, the provision would only apply to documents that are immigration-related. Id.
That is not the end of the inquiry, however. Rather, reading the whole statutory text, considering its purpose and context, see Leal-Felix, 665 F.3d at 1042, and, most importantly, "avoid[ing] a literal interpretation of the statute that produces an `absurd' result," Shill, 740 F.3d at 1353; Thompson, 728 F.3d at 1018, we conclude that "immigrant and nonimmigrant" cannot be read to apply to all of the listed documents. As the United States points out, a "nonimmigrant alien registration receipt card" does not exist, and 8 U.S.C. § 1101(a)(6) defines "border crossing identification card," not an "immigrant border crossing identification card" or a "nonimmigrant border crossing identification card." Furthermore, "immigrant visa" and "nonimmigrant visa" are defined in the 1952 legislation that also amended § 1546(a) to include "immigrant and nonimmigrant" immediately before "visa," 66 Stat. 163, 169, 275 (1952), codified at 8 U.S.C. § 1101(a)(16).
Looking further at the plain text of the statute, see Neal, 776 F.3d at 652, we find that the words "passport" and "passport card" are conspicuous by their absence from § 1546(a). Congress could easily have included "passport" in the list in § 1546, if it had intended § 1546 to apply to "passports." Indeed, § 1546(a) is the only statute in the group of statutes (18 U.S.C. §§ 1541-1547) relating to "passports and visas" that does not contain the word "passport." This omission from the statute's plain text — which we must consider intentional — suggests that "passports" do not fall within the scope of the statute. In contrast, § 1543 explicitly prohibits some of the same kinds of conduct involving "passports" that § 1546 prohibits as to the listed documents.
It is true, as the government argues, that the prosecution has the discretion to decide what charge to file when more than one statute prohibits the conduct in question. United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) ("This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants."); accord United States v. Maes, 546 F.3d 1066, 1068 (9th Cir. 2008). That argument strikes us as beside the point, however, in the context of a group of related statutes, where it would be particularly odd to construe two provisions to state duplicate prohibitions on some of the same conduct involving some of the same documents.
Rather, in this context, the difference in language between the provisions strongly suggests that the purpose of the two statutes was to address different kinds of documents, "passports" in § 1543 and immigration-related documents in § 1546. See White v. Lambert, 370 F.3d 1002, 1011 (9th Cir. 2004) ("It is axiomatic that when Congress uses different text in `adjacent' statutes it intends that the different terms carry a different meaning."), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc);
As the Supreme Court has explained,
Yates v. United States, ___ U.S. ___, 135 S.Ct. 1074, 1086, 191 L.Ed.2d 64 (2015).
The government's argument that § 1546(a) applies to more than immigration-related documents might be more persuasive if § 1546(a) referred simply to "document[s]," rather than to "other documents," that are "prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States." Here, the use of "other" plainly suggests that the "document[s]" are documents like the ones preceding them in the list, that is, immigration-related documents. Yates, ___ U.S. at ___. 135 S.Ct. at 1086.
Although the district court in Franklin found reasons not to settle on the interpretation suggested by application of ejusdem generis, we do, in light of still other canons of interpretation.
The district court in Franklin applied the principle that courts must not interpret a statute in isolation, but must consider "the context of the corpus juris of which they are a part." Franklin, 2011 WL 3424448 at *5 (quoting Branch v. Smith, 538 U.S. 254, 281, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003)); accord Leal-Felix, 665 F.3d at 1042. We agree that resort to this principle is also appropriate, but we disagree with the interpretation based on this principle reached by the district court in Franklin.
The district court in Franklin concluded that the principle of considering the statute's
Franklin, 2011 WL 3424448 at *7 (footnote omitted). It is here that we believe the district court in Franklin went astray.
Even though "passports" are documents prescribed by § 1324a(b)(1)(B)(I) as evidence of authorized employment in the United States, it does not necessarily follow that § 1546(a) applies to passports. We note that immigration-related documents are also prescribed by § 1324a(b)(1) as establishing both employment authorization and identity, specifically, a "resident alien card, alien registration card" — which are listed in § 1546(a) — "or other document designated by the Attorney General" meeting certain requirements. 8 U.S.C. § 1324(b)(1)(B)(ii) (emphasis added). Immigration-related documents are also found among "other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable for purposes of this section." 8 U.S.C. § 1324a(b)(1)(C)(ii) (emphasis added); see, e.g., 8 C.F.R. § 274a.12.
In short, where the canon ejusdem generis leads to the conclusion that the general "other documents" clause is limited to immigration-related documents, the relevant context of the corpus juris of which § 1546(a) is a part includes the provisions of § 1324a(1)(b) referring to immigration-related documents. Furthermore, to the extent that § 1546 echoes, not merely references, language from § 1324a(b)(1), it echoes the provisions specifically describing immigration-related documents, 8 U.S.C. § 1324a(b)(1)(B)(ii) and 8 U.S.C. § 1324a(b)(1)(C)(ii), not the provision identifying "passports," 8 U.S.C. § 1324a(b)(1)(B)(I). Reference to the IRCA does not require an interpretation of § 1546(a) as applying to U.S. passports.
We hold that § 1546(a) does not apply to U.S. passports or U.S. passport cards. Thus, the district court erred by denying Thomsen's motion for judgment of acquittal as to Counts 33 and 34.
Thomsen next contends that the district court improperly included amounts from the dismissed case and made other errors in determining the amount of restitution. This issue has both legal and factual aspects.
We have explained,
United States v. Inouye, 821 F.3d 1152, 1155-56 (9th Cir.2016). Thus, the proper scope of the conduct on which restitution can be based is a legal question; what conduct by Thomsen falls within that scope is a question of fact.
As to the legal question, it was once the case that a defendant could be required to pay restitution only to the victims of the offenses of which he was convicted, as Thomsen now argues. See Hughey v. United States, 495 U.S. 411, 422, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) ("Petitioner pleaded guilty only to the charge that he fraudulently used the credit card of Hershey Godfrey. Because the restitution order encompassed losses stemming from alleged fraudulent uses of cards issued to persons other than Godfrey, such portions of the order are invalid."). Subsequently, however,
United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 927 n. 10 (9th Cir. 2001); accord United States v. Brock-Davis, 504 F.3d 991, 998-99 (9th Cir.2007) (also recognizing the amendments abrogating
We have explained,
United States v. Eyraud, 809 F.3d 462, 467 (9th Cir. 2015). Restitution is mandatory, pursuant to § 3663A(a)(1) for "an offense described in subsection (c)," which includes "an offense against property under this title, ... including any offense committed by fraud or deceit." 18 U.S.C. § 3663A(c)(1)(A)(ii).
Restitution is mandatory in this case, because we have recognized that § 3663A(c)(1)(A)(ii) applies to mail fraud, as prohibited by 18 U.S.C. § 1341, United States v. Grice, 319 F.3d 1174, 1177 (9th Cir. 2003), and Thomsen was convicted of several mail fraud offenses (Counts 1 through 4). Similarly, other courts have held that, because they are offenses under Title 18, convictions on charges of false claims for tax refunds, in violation of 18 U.S.C. § 287, like Thomsen's convictions on Counts 7 through 16, and convictions on charges of identity theft, in violation of 18 U.S.C. § 1028A, like Thomsen's convictions on Counts 25 through 32 and 34, also fall under § 3663A(c)(1)(A)(ii). See United States v. Cohan, 798 F.3d 84, 89 (2d Cir. 2015) (§ 1028A); United States v. Blanchard, 618 F.3d 562, 577 (6th Cir. 2010) (§ 287).
Under the mandatory restitution provision,
18 U.S.C. § 3663A(a)(2) (emphasis added). For a fraud offense, the district court is required to order restitution in the amount of the victim's actual loss. 18 U.S.C. §§ 3663A(c)(1)(A)(ii), 3664(f)(1)(A).
More specifically, in the case of a conviction for a crime or crimes that require proof of a "scheme, conspiracy, or pattern of criminal activity," such as mail fraud,
In re Her Majesty the Queen in Right of Canada, 785 F.3d 1273, 1276 (9th Cir. 2015) (emphasis added). "In other words, `when 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.'" Brock-Davis, 504 F.3d at 999 (quoting United States v. Lawrence, 189 F.3d 838, 846-47 (9th Cir.1997), with emphasis added); accord Grice, 319 F.3d at 1178 ("[P]ermitting restitution under the MVRA for related, but uncharged mail fraud conduct occurring prior to and continuing past the MVRA's enactment is consistent with the text of the statute and related authority." (emphasis added)).
Here, the district court did not err, as a matter of law, in concluding that awarding restitution for related conduct beyond the conduct for which Thomsen was specifically convicted was within statutory bounds. Inouye, 821 F.3d at 1155-56. This is so, because (1) Thomsen was convicted of mail fraud offenses, which required proof of a "scheme" element, see French, 748 F.3d at 935, and (2) pursuant to § 3663A(a)(2), restitution for such offenses is not limited to harm caused by the particular counts of conviction, but may be based on related, uncharged conduct that is part of a fraud scheme, see In re Her Majesty, 785 F.3d at 1276; Brock-Davis, 504 F.3d at 999; Grice, 319 F.3d at 1178.
The disputed factual question, here, is whether the district court properly found that all of the losses alleged by the United States as the basis for restitution, including losses from conduct charged only in the second case, were losses from "related conduct." See In re Her Majesty, 785 F.3d at 1276.
To prove the necessary close relationship to the scheme of conviction, it is not enough to show another fraud against the victim that had "aspects in common with the scheme" of conviction, or even to show that both frauds were "built upon the same central falsity." In re Her Majesty, 785 F.3d at 1276. Rather, there must be a "causal" link between the two, and that link may be lacking where the fraud against the victim and the fraud scheme of conviction "were accomplished by different means, had different victims, and took place primarily in different [locations]." Id. at 1276-77. To put it another way, the fraud against the victim must not be "linked too tangentially to be part of the same `scheme, conspiracy, or pattern of criminal activity.'" Id. at 1277 (quoting § 3663A(a)(2)).
Applying these standards, we rejected Canada's restitution claim based on the biofuel subsidy fraud committed by the owners of a Canadian plant, while awarding restitution to the United States for fraudulent use of biodiesel credits, explaining the schemes were parallel, but different:
In re Her Majesty, 785 F.3d at 1276-77 (footnote omitted).
In contrast, the necessary "relatedness" was shown in Brock-Davis, which involved a conviction for conspiracy to manufacture methamphetamine in Missoula, Montana. 504 F.3d at 998. The defendant challenged the award of restitution for damage to and clean up of a motel room in Kalispell, Montana, even though there was, at least arguably, no proven methamphetamine manufacturing in that motel room, and nothing in the indictment or the plea hearing mentioned Kalispell, that motel, or its owner. Id. We explained why the loss for the Kalispell motel room was sufficiently "related" to the conspiracy of conviction to permit a restitution award, as follows:
Brock-Davis, 504 F.3d at 999 (emphasis added).
Similarly, in Grice, which involved mail fraud convictions, we held that losses from before the date of the defendant's first mail fraud offense were properly included in the restitution order. 319 F.3d at 1178. In Grice, the defendant directed delivery to herself of dividend checks payable to her son by filing change-of-address forms, and she cashed those checks even after her son's eighteenth birthday when she was no longer entitled to do so. Id. at 1176, 1178. Her first mail fraud offense, however, was four years after her son turned eighteen, and she argued that, prior to that, the checks just kept coming to her after it became illegal to cash them, so they were not part of the mail fraud scheme. Id. at 1178. We disagreed:
Grice, 319 F.3d at 1178-79.
Here, as Thomsen points out, the United States repeatedly refers to his "multi-year fraudulent scheme" in its brief, but nowhere identifies evidence establishing — or identified by the district court as the basis for a finding — that the scheme charged in the second case, in which Thomsen was not convicted, was, in fact, the same scheme as, or was related to, the scheme charged in the first case, in which Thomsen was convicted. At most, the United States has shown that both schemes were designed to obtain tax refunds by fraud and that Thomsen was involved in both of them. That is not enough. See In re Her Majesty, 785 F.3d at 1276 (sufficient "relatedness" is not shown simply from the fact that the claimed loss had "aspects in common with the scheme" of conviction, or even that both had been "built upon the same central falsity"). As in In re Her Majesty, the losses in the first and second cases against Thomsen "were accomplished by different means, had different victims, and took place primarily in different [locations]," id. at 1276-77; and cf. Grice, 319 F.3d at 1178-79 (finding that the fraud for which restitution was sought was conducted by the same modus operandi), and, here, also during different time frames, cf. Brock-Davis, 504 F.3d at 999 (conduct not mentioned in the indictment was related, for purposes of restitution, because it was not only of the same kind
Specifically, the frauds in the first case against Thomsen were accomplished by Thomsen himself, acting alone, apparently all in California, using the mails, while the frauds charged in the second case involved different victims, were accomplished by wire fraud, and involved at least three other co-defendants working in multiple states. As originally charged, the second case did not involve any of the same offenses as those charged in the first case. There is undeniably some relationship between a § 286 offense of conspiracy to obtain payment of false claims, as charged in the second case, and the substantive § 287 offense of actually making a false claim, as charged in the first case. Nevertheless, the difference between a conspiracy, involving multiple co-defendants to accomplish the fraud, and a substantive offense, involving a single person from start to finish, actually highlights the difference in the modus operandi of the false claim offenses in the two cases. Cf. Grice, 319 F.3d at 1178-79 (noting the use of an identical modus operandi to commit the offenses for which restitution was sought and the offense of conviction). The allegation that the conspiracies in the second case began on "unknown" dates does nothing to tie the earlier and later offenses together in the absence of any evidence of actual temporal overlap. Cf. Brock-Davis, 504 F.3d at 999 (conduct not mentioned in the indictment was related, for purposes of restitution, because it was shown by the evidence to be at the same time).
The addition of charges of aggravated identity theft, in violation of 18 U.S.C. § 1028A, in the Superseding Indictment in the second case, based on filing of tax returns, which are similar to such charges in the first case, does not create sufficient "linkage" between the earlier and later conduct. Section 1028A offenses do not involve proof of a "scheme" as an element, so that restitution based on those offenses would be appropriate only for conduct resulting in convictions. See Gamma Tech Indus., Inc., 265 F.3d at 927 n. 10. Finally, the time frame and the dates of the overt acts in furtherance of the original conspiracy charged in the second case (and, indeed, the overt acts in furtherance of the additional wire fraud conspiracy added later) do not involve any temporal overlap at all with the dates of the offenses charged in the first case. Compare Brock-Davis, 504 F.3d at 999 (conduct not mentioned in the indictment was related, for purposes of restitution, because it was not only of the same kind and involved the same participants, but was at the same time).
In short, the district court clearly erred in holding that the conduct at issue in the second case was sufficiently "related" to the conduct at issue in the first case to warrant inclusion of losses in the second case in the order for restitution pursuant to 18 U.S.C. § 3663A(a)(2). See Inouye, 821 F.3d at 1155-56 (factual findings for restitution are reviewed for clear error). Consequently, although ordering restitution for related conduct that did not result in a conviction was within "statutory bounds," the order for restitution, here, was an abuse of discretion. Id.
Thomsen argues the district court erred in calculating Thomsen's advisory guidelines sentence. He asserts the following alleged sentencing errors: (1) use of the wrong Guidelines Manual; (2) miscalculation of the "intended loss"; (3) misapplication of the "identity theft" enhancement; (4) misapplication of the "sophisticated means" enhancement; (5) misapplication of the U.S.S.G. § 2L2.2(c)(1)(A) cross-reference to U.S.S.G. § 2X1.1; (6) misapplication of the "abuse of trust" enhancement; and (7) misapplication of the "obstruction of justice" enhancement.
"The district court must correctly calculate the recommended Guidelines sentence" before sentencing a defendant. United States v. Hymas, 780 F.3d 1285, 1292 (9th Cir. 2015) (brackets and citation omitted); accord United States v. Bernardo, 818 F.3d 983, 985 (9th Cir. 2016) ("`Even though the Guidelines are advisory, they are still the "starting point and the initial benchmark" for the sentencing process.'" (quoting United States v. Ellis, 641 F.3d 411, 415 (9th Cir. 2011), in turn quoting Kimbrough v. United States, 552 U.S. 85, 108, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007))). More specifically, "we `must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.'" Bernardo, 818 F.3d at 985 (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)); United States v. Johnson, 812 F.3d 757, 761 (9th Cir. 2016) (adding to the list of procedural errors "`treating the Guidelines as mandatory, failing to properly consider the [18 U.S.C.] § 3553(a) factors, using clearly erroneous facts when calculating the Guidelines range or determining the sentence, and failing to provide an adequate explanation for the sentence imposed'" (quoting United States v. Christensen, 732 F.3d 1094, 1100 (9th Cir. 2013))). In doing so,
Bernardo, 818 F.3d at 985.
Thomsen challenges the calculation of the number of victims under U.S.S.G. § 2B1.1(b)(2)(C) from the 2011 Guidelines Manual. He argues that version of the guideline was first included in the 2009 Guidelines Manual, effective November 1, 2009. Thus, he argues, it was not in effect at the time of the offenses for which he was convicted, causing an ex post facto
A district court properly applies the version of the Sentencing Guidelines in effect at the time of sentencing, unless doing so would violate the ex post facto clause. U.S.S.G. §§ 1B1.11(a), (b)(1). "To implicate ex post facto concerns, amendments to the Sentencing Guidelines must present `a sufficient risk of increasing the measure of punishment attached to the covered crimes.'" United States v. Waters, 771 F.3d 679, 680 (9th Cir. 2014) (quoting Peugh v. United States, ___ U.S. ___, 133 S.Ct. 2072, 2082, 186 L.Ed.2d 84 (2013)). There is little doubt that use of the "wrong" version of U.S.S.G. § 2B1.1(b)(2) in this case resulted in "`a sufficient risk of increasing the measure of punishment'" for Thomsen's convictions to raise an ex post facto problem. Id. (quoting Peugh, ___ U.S. ___, 133 S.Ct. at 2082). Here, the "wrong" version of the applicable guideline increased Thomsen's advisory guidelines range by six levels; the United States does not argue that it is clear that the district court would have applied the same sentence under the older guideline, but rather concedes that remand is appropriate; and the only other Circuit Court of Appeals to consider whether the amendment of this guideline violated the ex post facto clause under the Peugh standard also reversed for resentencing. See United States v. Diaz, 515 Fed.Appx. 595, 595-96 (7th Cir. 2013) (unpubl. mem.).
Upon remand, the district court must correct the ex post facto violation. Moreover, the commentary to § 1B1.11 provides that "if an earlier edition of the Guidelines Manual is used, it is to be used in its entirety, except that subsequent clarifying amendments are to be considered." U.S.S.G. § 1B1.11, cmt. n.1 (2008 & 2015). Thus, the correct Guidelines Manual for Thomsen's entire resentencing, on remand, is the 2008 version.
Thomsen claims the district court incorrectly calculated "intended loss" under U.S.S.G. § 2B1.1(b)(1). U.S.S.G. § 2B1.1(a)(1) provides for level increases for losses exceeding certain amounts in, inter alia, fraud cases. See United States v. Gonzalez Becerra, 784 F.3d 514, 516 n.2 (9th Cir. 2015) ("U.S.S.G. § 2B1.1(b)(1) sets out a schedule in which greater amounts of actual or intended monetary losses are coupled with correspondingly greater increases to a defendant's offense level."). A district court's method of calculating loss under the guidelines is reviewed de novo, and the determination of the loss amount is reviewed for clear error. United States v. Aubrey, 800 F.3d 1115, 1132 (9th Cir. 2015); United States v. Del Toro-Barboza, 673 F.3d 1136, 1153-54 (9th Cir. 2012). A district court must make "a reasonable estimate of the loss based on available information." United States v. Zolp, 479 F.3d 715, 719 (9th Cir. 2007).
U.S.S.G. § 2B1.1(a)(1), cmt. n. 3(A)(i)-(ii) (2008), explains that "loss is the greater of actual loss and intended loss" and how each kind of loss is determined. More importantly, here, when calculating loss amounts, the district court is allowed to consider all relevant conduct that is "part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2) (2008); United States v. Newbert, 952 F.2d 281, 284 (9th Cir. 1991). This allows the court to include charged, uncharged, and even acquitted conduct in the determination of loss. United States v. May, 706 F.3d 1209, 1213 (9th Cir. 2013).
Upon remand, the district court should make factual findings supporting the amount of intended loss and apply the appropriate enhancement pursuant to U.S.S.G. § 2B1.1(a)(1) (2008).
Next, Thomsen argues that the district court erroneously applied the identity theft specific offense characteristic under U.S.S.G. § 2B1.1(b)(11)(C) (2008). We agree. The only basis on which the Addendum recommended a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(11) (2008) was pursuant to U.S.S.G. § 2B1.1(b)(11)(C)(i) (2008), as follows:
Addendum at 7 (emphasis in the original).
U.S.S.G. § 2B1.1(b)(10)(C)(i) (2008). Application Note 9 to the 2008 version of this guideline defines "means of identification" for purposes of this guideline, as that term is defined 18 U.S.C. 1028(d)(7), with certain limitations. U.S.S.G. § 2B1.1, cmt. n. 9 (2008). "Personal tax returns" are conspicuous by their absence from the list of "means of identification" in 18 U.S.C. § 1028(d)(7). The United States has not cited, and we have not found, any decision of this court or any other Circuit Court of Appeals holding that "tax returns" are "means of identification" within the meaning of either 18 U.S.C. § 1028(d)(7) or any version of U.S.S.G. § 2B1.1(b)(10)(C)(I) (now U.S.S.G. § 2B1.1(b)(11)(C)(I)).
Thomsen also claims the district court incorrectly applied the "sophisticated means" enhancement, U.S.S.G. § 2B1.1(b)(9)(C) (2008).
Next, Thomsen appeals the application of the U.S.S.G. § 2L2.2(c)(1)(A) cross-reference to U.S.S.G. § 2X1.1. This cross-reference resulted in the same base offense level and the same enhancements pursuant to U.S.S.G. § 2B1.1 for his Group Two offense (Count 33) as for his Group One offenses (Counts 1-4, 7-16, and 17-24). Because we have vacated Thomsen's conviction on Count 33, the only count in Group Two, no cross-reference is applicable. The district court must recalculate the sentence upon remand.
Thomsen's penultimate ground for appeal is that the application of the U.S.S.G. § 3B1.3 enhancement for "abuse of trust" was plain error. We disagree.
Thomsen is correct that the only basis on which the probation officer recommended the two-level enhancement for "abuse of trust" pursuant to U.S.S.G. § 3B1.3 (for both groups of offenses) was that "the defendant was a tax preparer, who was entrusted with the personal information of others, which he used for his own financial gain," which the probation officer believed "constitute[d] an abuse of a position of trust." We have repeatedly held that, "`[t]o support the abuse of trust enhancement, "a position of trust ... must be established from the perspective of the victim."'" United States v. Technic Servs., Inc., 314 F.3d 1031, 1048 (9th Cir. 2002) (quoting United States v. Brickey, 289 F.3d 1144, 1154 (9th Cir. 2002), in turn quoting United States v. Hill, 915 F.2d 502, 506 n.3 (9th Cir. 1990)), overruled on other grounds by United States v. Contreras, 593 F.3d 1135, 1136 (9th Cir. 2010) (en banc) (per curiam); see also United States
We have recognized that "victims of fraud are not limited to the entities that bear the ultimate financial burden, but also include those who bear emotional, financial and other burdens." United States v. Peyton, 353 F.3d 1080, 1091 (9th Cir. 2003) (concluding that American Express was not the only "victim" of a U.S. Postal Service supervisor who falsely procured American Express credit cards in the names of coworkers, but also those people named on the credit cards who were injured, because their credit histories were adversely affected). There was no plain error in application of the "abuse of trust" enhancement, here, where persons in whose names Thomsen filed fraudulent tax returns by using personal information provided to him in his employment as a tax preparer were subjected to emotional and other burdens as a result of his conduct. Thus, the district court properly applied the "abuse of trust" enhancement.
Thomsen lastly asserts that the district court erroneously applied a two-level enhancement for "obstruction of justice" under U.S.S.G. § 3C1.1. We disagree.
The Supreme Court has observed that, when applying an enhancement for "obstruction of justice" pursuant to U.S.S.G. § 3C1.1 for committing perjury, "it is preferable for a district court to address each element of the alleged perjury in a separate and clear finding," but "[t]he district court's determination that enhancement is required is sufficient ... if, as was the case here, the court makes a finding of an obstruction of, or impediment to, justice that encompasses all of the factual predicates for a finding of perjury." United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). Here, the district judge's findings in support of the "obstruction of justice" enhancement based on Thomsen's false testimony encompassed not only falsity of the testimony and obstruction of justice, but other elements. See id. at 94, 113 S.Ct. 1111 (stating the elements of perjury). The district judge encompassed intent to provide false testimony when he told Thomsen that he "d[idn't] understand how someone who can be this smart, this smart, could come up with the stories that you came up with while you were on the witness stand" to attempt to exonerate himself. His findings also encompassed materiality, because he found that the false testimony was intended to suggest that Thomsen was not the person who committed the offenses. Thus, the district court did not err in imposing this enhancement.
During oral argument, we requested that the United States confer with counsel for Thomsen about the scope of evidence that the district court may consider, on any remand, as to the number of victims under the 2008 Guidelines Manual. We have been notified that the parties have conferred and jointly agree that the record on remand as to the number of victims will be limited to the following: (1) the current record before the district court; (2) one additional government witness who will testify based upon the existing record; and (3) a summary chart that the witness may use to aid in his/her testimony. We find that the parties' request is reasonable, and grant it. See, e.g., United States v. Matthews, 278 F.3d 880, 889 (9th Cir. 2002) ("[W]e conclude that there is no reason to limit the district court's authority
We reverse the district court's denial of Thomsen's Motion For Judgment Of Acquittal as to Counts 33 and 34, and vacate those convictions. We reverse the order of restitution and sentence of incarceration, and remand for redetermination of both.
In Franklin, we affirmed a United States citizen's conviction pursuant to § 1546(a) for possession of a United States passport bearing his photograph, but the name and other identifying information of his cousin, knowing that the passport had been procured by means of a false claim and statement and by fraud and to have been unlawfully obtained, "for the reasons enumerated by the district court." 501 Fed.Appx. at 630. Our unpublished memorandum opinion in Franklin is not precedent. See 9th Cir. R. 36-3. The district court in Franklin applied several canons of statutory interpretation to reach its conclusion that a defendant could be convicted under § 1546(a) for possession of a U.S. passport, but we do not agree, for the reasons set out in the body of this opinion.
18 U.S.C. § 1543 (emphasis added). Section 1546(a) applies to one who "utters, ... possesses, obtains, accepts, or receives" an identified document, which § 1543 does not. Section 1543 applies to "furnish[ing]" a document identified, but § 1546(a) does not. We need not decide whether "furnishing" and "uttering" proscribe similar or equivalent conduct; we simply note the differences in the terms used. Here, Thomsen was charged in Count 33 with "knowingly us[ing], possess[ing] and utter[ing]" a document to which § 1546(a) applies. Thus, in Thomsen's case, the two statutes would overlap as to the "us[ing]" of a passport, if both apply to passports.
18 U.S.C. § 3663(a)(2) (emphasis added). The pertinent parts of § 3663(a)(2) and § 3663A(a)(2), the statute applicable here, are identical, as will be seen from the quotation of the latter statute in the body.
