                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 11 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 13-10281

              Plaintiff - Appellee,             D.C. No. 2:09-cr-00494-KJD-
                                                VCF-1
  v.

TARL BRANDON,                                   MEMORANDUM*

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-10282

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00209-KJD-
                                                 VCF-1
  v.

TARL BRANDON,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-10283

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00407-KJD-
                                                 GWF-1
  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
TARL BRANDON,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                    Argued and Submitted November 19, 2014
                            San Francisco, California

Before: NOONAN, FERNANDEZ, and IKUTA, Circuit Judges.

      Tarl Brandon appeals his convictions for Mail Fraud, Wire Fraud, Bank

Fraud, and Conspiracy; Brandon also appeals his 168 month sentence, and the

district court’s forfeiture and restitution orders. We have jurisdiction under 28

U.S.C. § 1291. We affirm the conviction, sentence, and forfeiture order, and

reverse and remand the restitution order.

      The district court’s inadvertent provision to the jury of transcripts of

recorded conversations not admitted into evidence was an error in the trial process,

not an error in the trial framework resulting in structural error. See Neder v. United

States, 527 U.S. 1, 8 (1999). The district court did not err by declining to conduct

an evidentiary hearing and denying Brandon’s motion for a new trial based on this

error. The evidence admitted at trial was overwhelming, including recorded

conversations of Brandon describing the loan fraud schemes, and the extrinsic

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transcripts were either largely unintelligible or largely exculpatory. The extrinsic

transcripts were thus unimportant in relation to the other material considered by the

jury, and the error was harmless beyond a reasonable doubt. See United States v.

Khan, 993 F.2d 1368, 1376 (9th Cir. 1993).

      The district court did not err by admitting testimony that Brandon had

previously been investigated by the FBI for mortgage fraud. The testimony was

admissible to show Brandon’s motive for keeping his name off the fraudulent loan

documents. See Fed. R. Evid. 404(b)(2). Even if the testimony was admitted in

error, the error was harmless. The other evidence presented at trial was

overwhelming, the testimony about the prior investigation was isolated and brief,

and the district court appropriately instructed the jury on the use of that testimony.

Thus, “it is more probable than not that the error did not materially affect the

verdict.” See United States v. Bailey, 696 F.3d 794, 803 (9th Cir. 2012).

      We review a sentence for procedural error and substantive reasonableness,

applying an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51

(2007). A sentencing court’s findings of fact are reviewed for clear error. Id. The

district court did not err in accepting the sales value of the houses reported in the

tax assessor records to establish the amount recovered by the lenders. See U.S.S.G.

§ 2B1.1 cmt. 3(E)(ii); United States v. Morris, 744 F.3d 1373, 1375 (9th Cir.


                                           3
2014). The district court’s finding of a loss amount between $2.5 million and $7

million was a reasonable estimate given the available information. See United

States v. Garro, 517 F.3d 1163, 1167 (9th Cir. 2008). Thus, applying an 18-level

sentence enhancement under U.S.S.G. § 2B1.1(b)(1) for a loss between $2.5

million and $7 million was not an abuse of discretion.

      The district court’s finding, based in part on related transactions not charged

in the indictments, that Brandon derived more than $1 million from financial

institutions and had ten or more victims, was not clearly erroneous. Acts that were

part of the same “common scheme or plan as the offense of the conviction,” §

1B1.3(a)(2), including “charged, uncharged, and acquitted conduct,” may be

considered, United States v. Peyton, 353 F.3d 1080, 1089 (9th Cir. 2003),

overruled on other grounds by United States v. Contreras, 593 F.3d 1135 (9th Cir.

2010) (en banc) (per curiam). The evidence supports the district court’s holding

that the uncharged transactions it relied on were part of the same common scheme

as the offense of the conviction. Thus, imposing 2-level sentence enhancements for

deriving more than $1 million from financial institutions under § 2.B1.1(b)(16)(A)

and for ten or more victims under § 2.B1.1(b)(2)(A)(i) was not an abuse of

discretion. Brandon’s argument that United States v. Brown, No. 12-10227, 2014

WL 5786702, at *10 (9th Cir. Nov. 7, 2014), changes this result, because Brown


                                         4
held that a court may consider only those victims whose losses were included in

the § 2B1.1(b)(1) loss calculation in the number of victims calculation, was

waived. This rule was established in United States v. Armstead, 552 F.3d 769, 780-

81 (9th Cir. 2008) (citing § 2B1.1, cmt. 1). Because the rule was already

established and Brandon did not argue the issue in the district court or in his briefs

on appeal, the argument was waived. Smith v. Marsh, 194 F.3d 1045, 1052 (9th

Cir. 1999); Pierce v. Multnomah Cnty., 76 F.3d 1032, 1037 n.3 (9th Cir. 1996).

      The court’s finding that creating false identities, engineering simultaneous

loan closings, and funneling proceeds through a shell company constituted

sophisticated means was not clearly erroneous. See United States v. Jennings, 711

F.3d 1144, 1145 (9th Cir. 2013). The district court thus did not abuse its discretion

by imposing a 2-level sentence enhancement for the use of sophisticated means

under § 2B1.1(b)(10)(C). The court’s finding that Brandon’s exercise of decision-

making authority, recruitment of straw buyers, and claim of the lion’s share of the

proceeds indicated he was an organizer or leader was not clearly erroneous. The

district court did not clearly err in finding that the scheme included five or more

criminally culpable participants where several straw buyers allowed their identities

to be used in the fraud. Thus, the district court did not abuse its discretion by

imposing a 4-level enhancement under § 3B1.1(a).


                                           5
      The district court did not abuse its discretion by imposing a 168 month

sentence. The court correctly calculated the sentence range under the Sentencing

Guidelines, and imposed a sentence at the low end of the range based on

consideration of the factors required by 18 U.S.C. § 3553(a). Further, the court did

not abuse its discretion by sentencing Brandon to 168 months while two of his co-

conspirators received sentences of time served and one year. Neither of the co-

conspirators participated in all three conspiracies for which Brandon was

convicted, neither reaped the same level of profits as Brandon, and only Brandon

did not accept responsibility for his criminal acts. Because Brandon was not

similarly situated to his co-conspirators, imposing a 168 month sentence was not

an abuse of discretion. See United States v. Carter, 560 F.3d 1107, 1121 (9th Cir.

2009).

      We affirm the district court’s forfeiture order. This district court correctly

used the total amount of the loans fraudulently obtained by the conspiracy,

including loans obtained through charged and uncharged-but-related conduct, in its

calculation. See United States v. Newman, 659 F.3d 1235, 1244 (9th Cir. 2011).

Brandon was provided notice as required under Federal Rule of Criminal

Procedure 32.2(a), and there was no fatal variance between the amount stated in the

indictments and the final amount ordered by the district court.


                                          6
      We reverse the district court’s restitution order, and remand for

recalculation. A court must order restitution to the victims of any wire or mail

fraud offense, 18 U.S.C. § 3663A(a)(1), unless determining complex issues related

to the losses would burden the sentencing process, id. § 3663A(c)(3)(B). The

government stated it could only determine the losses sustained on the three loans

that remained with the original lenders, and requested a restitution order in that

amount. We reverse and remand for recalculation of restitution to the lenders still

holding the three original loans, unless the losses sustained by the other original

lenders can be ascertained without undue burden.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.




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