                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                              MAR 17 2010

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

UNITED STATES OF AMERICA,                         No. 08-30382

             Plaintiff - Appellee,                D.C. No. 2:08-CR-0007-DWM

  v.
                                                  MEMORANDUM *
TONY EUGENE BARNES,

             Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                       Argued and Submitted August 3, 2009
                               Seattle, Washington

Before: PREGERSON, NOONAN, and BEA, Circuit Judges.

       Tony Eugene Barnes (“Barnes”) pleaded guilty to one count of bank fraud,

one count of conspiracy to commit bank fraud, and one count of aggravated

identity theft for stealing 31 bank account holders’ identities. The district court

sentenced Barnes to two concurrent 57-month sentences and a consecutive 24-



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
month sentence. Barnes was also ordered to pay $145,703.45 in restitution under

the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. Barnes

challenges his 57-month concurrent sentences and the restitution order. We have

jurisdiction under 28 U.S.C. § 1291. We affirm.

I.    Sentencing

      The district court applied the twelve-level sentencing enhancement because

it concluded that the loss arising from Barnes’ offense exceeded $200,000. The

district court determined that Barnes was responsible for $193,303.54 in intended

losses1 suffered by the banks, plus $12,400 in collateral losses suffered by the

individual bank account holders. The district court calculated $12,400 in collateral

losses by assigning $400 of collateral loss for each of the 31 individual victims.

The district court based its calculation on testimony by FBI Special Agent Kevin

Damuth. Agent Damuth testified regarding the time and expense typically needed

to rectify identity theft, as well as the specific collateral losses suffered by six

individual bank account holders.




      1
         Under the Sentencing Guidelines, loss is calculated according to the greater
of actual loss or intended loss. U.S.S.G. § 2B1.1(b)(1), cmt. n.3(A). Intended loss
is the “pecuniary harm that was intended to result from the offense” and “includes
intended pecuniary harm that would have been impossible or unlikely to occur.”
§ 2B1.1(b)(1), cmt. n.3(A)(ii).

                                            2
      Barnes contends that there was insufficient evidence to support the district

court’s estimate of collateral losses. “We review the district court’s determination

of the amount of loss for clear error.” United States v. Santos, 527 F.3d 1003,

1006 (9th Cir. 2008) (citing United States v. Zolp, 479 F.3d 715, 718 (9th Cir.

2007)). Facts at sentencing must be established by “a preponderance of the

evidence.” United States v. Armstead, 552 F.3d 769, 776 (9th Cir. 2008).2

      In Armstead, we held that “[i]f a person suffered pecuniary harm beyond the

amount by which the person was reimbursed, then that amount should be included

in the loss calculation.” Id. at 783. In United States v. Pham, we differentiated

between account holders reimbursed immediately by the bank, who had not

suffered any collateral loss; and account holders whose reimbursement was

delayed, who may have suffered collateral loss. 545 F.3d 712, 719-21 (9th Cir.

2009). We noted that the government need not provide evidence of collateral loss



      2
         Barnes summarily asserts that the district court should have applied the
“clear and convincing evidence” standard to the facts supporting the loss
calculation sentencing enhancement. If a sentencing factor has “an extremely
disproportionate effect on the sentence relative to the offense of the conviction” the
district court must find facts by “clear and convincing evidence.” Armstead, 552
F.3d at 776 (quoting United States v. Moreland, 509 F.3d 1201, 1220 (9th Cir.
2007)). Here, the disputed loss calculation, which resulted in a two-level increase
in Barnes’s advisory guideline range, did not have an extremely disproportionate
effect on the sentence. See id. at 777. Accordingly, the district court properly
applied the preponderance of the evidence standard.

                                          3
from every victim subject to delayed reimbursement, so long as evidence is

produced from “enough of the account holders to allow the sentencing court

reasonably to infer a pattern [of collateral loss].” 545 F.3d at 720 n.3.

      Here, the government established by a preponderance of the evidence that

the 31 individual account holders suffered an average of $400 in collateral loss.

Agent Damuth testified regarding the general collateral expenses that would be

incurred by all of the account holder victims, and the individual collateral expenses

claimed by some of the victims. In particular, Agent Damuth testified that each of

the individual account holders spent hours going to their banks, signing affidavits

and fixing their accounts, and that each of the individual account holders incurred

additional collateral expenses for gas and new checks. Under the Sentencing

Guidelines, this testimony was sufficient to “allow the sentencing court to infer a

pattern of delayed reimbursement” and reasonably estimate the average collateral

loss for the individual account holders. See Pham, 545 F.3d at 720 n.3 (citing

U.S.S.G. § 2B1.1 cmt. n.3(C)).

      Accordingly, we hold that the district court’s $400 per victim estimate and

total loss calculation was not clearly erroneous.

II.   Restitution




                                           4
      The district court’s restitution order also included its calculation of $12,400

in collateral loss to the individual bank account holders. Barnes contends that

there was insufficient evidence to support restitution in this amount. We review a

restitution order “for an abuse of discretion, provided it is within the bounds of the

statutory framework. Factual findings supporting an order of restitution are

reviewed for clear error.” United States v. Waknine, 543 F.3d 546, 555 (9th Cir.

2008) (internal quotation marks and citations omitted). We affirm.

      The MVRA requires mandatory restitution for crimes of violence and

property offenses. 18 U.S.C. § 3663A. “In light of the remedial purposes

underlying the MVRA, our precedent grants district courts a degree of flexibility in

accounting for a victim’s complete losses. Despite this flexibility, [the MVRA]

minimally requires that facts be established by a preponderance of the evidence,

and the district court may utilize only evidence that possesses a sufficient indicia of

reliability to support its probable accuracy.” Waknine, 543 F.3d at 557 (internal

citation and quotation marks omitted).

      As discussed above, the government proved by a preponderance of the

evidence that the 31 account holders suffered on average $400 in collateral losses.

Agent Damuth’s testimony possesses a sufficient indicia of reliability because of

his expertise, and because he obtained a specific accounting of the collateral losses


                                          5
suffered by 6 of the 31 account holders. Accordingly, the district court did not

abuse its discretion in ordering Barnes to pay $12,400 in restitution to individual

bank account holders.

      AFFIRMED.




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