                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 08-30078
                Plaintiff-Appellee,
               v.                             D.C. No.
                                          6:7-cr-00012-CCL
SCOTT WILLIAM HILGERS,
                                              OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
               for the District of Montana
       Charles C. Lovell, District Judge, Presiding

                 Argued and Submitted
           December 8, 2008—Portland, Oregon

                   Filed March 11, 2009

  Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
              Jay S. Bybee, Circuit Judges.

              Opinion by Judge O’Scannlain




                           3207
                  UNITED STATES v. HILGERS               3209




                         COUNSEL

Steven C. Haddon, Haddon Law Office, Helena, Montana,
argued the cause for the defendant-appellant and submitted a
brief.

Carl E. Rostad, Assistant United States Attorney, Great Falls,
Montana, argued the cause for the plaintiff-appellee and sub-
mitted a brief. William M. Mercer, United States Attorney,
was on the briefs.


                         OPINION

O’SCANNLAIN, Circuit Judge:

   We must decide whether an above-Guidelines prison sen-
tence of a mortgage broker convicted of wire fraud is reason-
able.

                              I

                              A

   Scott Hilgers was a mortgage broker, that is, one who finds
homeowner buyers for institutional mortgage lenders. Hilgers
brokered mortgages on four separate residences in Helena,
Montana, for property owner Todd Rice. Each mortgage was
for 100% of the property’s value in varying principal amounts
totaling $686,000. Because Rice did not have sufficient
income to qualify for even one of these mortgages, Hilgers
3210               UNITED STATES v. HILGERS
and Rice agreed to use counterfeit W-2 statements to deceive
lenders. In addition, because it is easier to get a loan for a
house in which the owner will live, Rice represented in paper-
work for each of the four mortgages that the property in ques-
tion would be his primary residence. In fact, none of the four
houses were Rice’s primary residence.

   The mortgage lenders indicated that, if they had known
about the misrepresentations, they would not have funded the
loans. If they were compelled to lend, they at least would
have charged higher rates of interest and required a 10%
down payment in each case. Each lender indicated that it had
suffered no loss but would suffer losses if Rice were to
default on the loans. One mortgage lender indicated that it
would have demanded $1,539 in fees had Rice provided accu-
rate information on his loan application.

                               B

   Hilgers and Rice pled guilty to wire fraud in violation of 18
U.S.C. § 1343. The probation officer computed the offense
level, with the base offense level at seven. The offense level
was increased by eight levels because the intended loss
amount was $70,139. The officer calculated this number by
considering the down payments that would have been
required had the lenders been forced to lend the money know-
ing the true facts ($686,000 x 10%), as well as the lost $1,539
in fees. Two levels were added for abuse of a position of trust
or use of a special skill, because Hilgers was licensed, trained,
and knowledgeable about the mortgage industry. The offense
level was reduced by two points for acceptance of responsibil-
ity, and by another point for timely notification of the plea.
The resulting offense level was fourteen. Hilgers had a long
criminal history, including convictions for passing bad
checks, embezzlement, and other fraudulent conduct. His
criminal history category was Category V. The Probation
Officer thus set the Guidelines range at 33 to 41 months.
                      UNITED STATES v. HILGERS                       3211
                                    C

  The pre-sentence report also touched on a few miscella-
neous matters. A note from a state probation officer expressed
concerns that Hilgers was financially manipulating his wife
and mother, and reported:

         Victims have repeated over and over that Hilgers
      presented himself as an honest individual who
      gained their trust, could then look them straight in
      the eye, and knowingly tell the most outrageous lies.
      I have heard the phrase “this guy is a master manipu-
      lator” on way too many occasions.

   Hilgers wrote a letter to the sentencing judge in which he
claims to have “accepted full responsibility for [his] unethical
and criminal behavior from the initial moments of the investi-
gation.” He stated that he “can offer no excuses for [his] role
in this despicable criminal act,” but then went on to state that,
“[p]erhaps, [he] was under considerable pressures from sev-
eral realtors, property owners and the actual lender to com-
plete these transactions,” particularly because the incomes of
everyone involved in the process were based on volume com-
mission.

                                    D

   At sentencing, Hilgers objected to the loss calculation per-
formed by the probation officer, stating that it was too specu-
lative. The trial judge agreed, setting Hilgers’ offense level at
seven1 and noting that the Guidelines sentence for an offense
  1
    The court computed the base office level at seven, with a two-point
increase for abuse of a special skill or position of trust, and a two-point
decrease for acceptance of responsibility. The one-point timely plea
decrease is not available unless the offense level prior to the acceptance-
of-responsibility reduction is at least sixteen.
3212                   UNITED STATES v. HILGERS
level of seven and criminal history Category V was 12 to 18
months.2

   Nevertheless, immediately upon calculating the Guidelines
range excluding any loss amount enhancement, the sentencing
court found that “a reasonable sentence would be above the
[defendants’] guidelines ranges.” The court went on to state,
“I have to set the guidelines aside because we are outside the
heartland, and I have to fashion a sentence based on the statu-
tory factors.”

   After hearing from the defendants, the district judge sen-
tenced Hilgers to five years in prison, to be followed by five
years of supervised release. Hilgers timely appeals.

                                     II

   [1] Hilgers argues that “the Guidelines were not utilized in
crafting the sentence imposed.” Because he did not raise this
claim below, review is for plain error. See United States v.
Knows His Gun, 438 F.3d 913, 918 (9th Cir. 2006). “[G]iven
the District Court’s ruling [that] it was setting aside the
Guidelines,” Hilgers asserts, “it failed to keep the Guidelines
in mind throughout the sentencing process.” However, the
trial judge pointed out that his reference to setting aside the
Guidelines was part of a clarification. Hilgers’ attorney had
objected to the judge “departing from . . . consideration of”
the Guidelines. The judge reminded counsel that a “depar-
ture” from the Guidelines is a term of art, pointing out that the
word “depart” “sometimes has a pretty technical” meaning.
Here, as in United States v. Carty, 520 F.3d 984, 994 (9th
Cir.) (en banc), cert. denied, 128 S. Ct. 2491 (2008), “[t]o the
extent the sentencing judge’s initial characterization was
inopportune, we cannot say that it was significant procedural
  2
   The government does not appeal the district court’s decision not to use
the loss figures provided by the probation officer. Thus, the correctness of
that decision is not before us.
                   UNITED STATES v. HILGERS                 3213
error because the court corrected itself.” Absent the court’s
remark about setting aside the Guidelines, Hilgers can offer
no evidence that an error (much less plain error) occurred.

   [2] A defendant has no right to a Guidelines sentence. See
id. at 991 (“[T]he Guidelines factor [should not] be given
more or less weight than any other.”). The mere fact that the
Guidelines sentence is substantially more or less severe than
the sentence imposed hardly demonstrates that the Guidelines
were not considered. See Gall v. United States, 128 S. Ct. 586
(2007) (upholding a sentence of probation as reasonable
where the Guidelines sentence was 30 to 37 months).

   [3] Hilgers also argues that the trial judge failed to “ade-
quately . . . explain the sentence selected, including any devia-
tion from the Guidelines range.” Carty, 520 F.3d at 993.
Although the judge merely mentioned that the case is out of
the heartland when deciding to impose a non-Guidelines sen-
tence, the rest of the facts found at sentencing (e.g., that Hil-
gers is a con man in need of a long period of incarceration for
deterrence) expand on the simple “heartland” explanation.
There is no plain procedural error in this case.

                               III

   As to the substantive sentencing issue, review of a district
court’s sentence is for reasonableness. Gall, 128 S. Ct. at 591.
The court noted that Hilgers had “quite a criminal history”
and had “repeatedly been engaged in fraudulent conduct in
the past [including] similar fraudulent conduct.” “[T]he record
reflects,” the court asserted, “that [Hilgers is] a con man
[with] . . . a very sordid history with the Department of Cor-
rections.” The court told Hilgers: “Even your current victims,
including your mother, seem to still think highly of you, and
you have cheated and committed fraud on your own mother.
Repeatedly here.” Even though “the nature of this offense is
not uncommon in the real estate industry,” the district judge
found that Hilgers had “stretched it . . . to the maximum.” He
3214                  UNITED STATES v. HILGERS
was “the person in the position to facilitate the crime, and
[was] the person without whom the crime would not have
occurred.”

   The court then discussed the § 3553 factors, noting that it
had given consideration to the requirement that the sentence
imposed reflect the seriousness of the offense and promote
respect for the law, and the requirement to impose just pun-
ishment for the offense. On deterrence, the court stated: “I
don’t know if there is an effective way to deter a repeated con
man from cheating and defrauding others, but I think that a
five-year consecutive sentence in this case will go a long way
to accomplishing that result.” The court also stated that the
interests of protecting the public would be served by the sen-
tence. Considering the kinds of sentences available, the court
noted that probation was not authorized. The court asserted
that the punishments imposed on Hilgers and Rice (who
received one year in prison but had neither abused a special
skill nor amassed any criminal history) were free of unwar-
ranted sentencing disparities.3

   [4] In challenging the sentence, Hilgers emphasizes that it
is much higher than the Guidelines sentence. However, an
appeals court may not presume that an out-of-Guidelines sen-
tence is unreasonable. Carty, 520 F.3d at 994. Furthermore,
section 2B1.1(b) of the Guidelines was clearly written with
the assumption that the amount of loss could be ascertained.
Ascribing a loss of $0 to Hilgers’ conduct because the losses
may or may not happen clearly understates the seriousness of
the violation. It is appropriate for the district court to tailor the
sentence to the seriousness of the defendant’s conduct, see 18
U.S.C. § 3553(a)(1), and the district court’s consideration of
the large potential loss that could result from Hilgers’ action
was not unreasonable.
  3
   Rice’s sentence is not before us.
                        UNITED STATES v. HILGERS                         3215
   [5] It is true that a more compelling reason should be
required where the deviation is large. See Gall, 128 S. Ct. at
597 (“We find it uncontroversial that a major departure
should be supported by a more significant justification than a
minor one.”). The departure here is large — Hilgers was sen-
tenced to 3 years longer than the top of the Guidelines range
and almost three times the uppermost Guidelines sentence of
eighteen months. However, given the various factors consid-
ered by the district court — chief among them the inadequacy
of the Guidelines sentence in reflecting the potential loss to
the victims — we cannot say that a five-year sentence was
unreasonable. The district court’s conclusion that a significant
sentence was necessary to accomplish the purposes of the
Sentencing Reform Act is supported by its findings as to Hil-
gers’ past criminality, his lack of response to prior sentences,
his personal characteristics and his lack of remorse.

   AFFIRMED.4




  4
    Hilgers alleges that the district court judge improperly considered dur-
ing sentencing certain financial dealings between Hilgers and his mother,
as well as between Hilgers and his wife. Because Hilgers did not object
to the factual accuracy of the Pre-Sentence Report (“PSR”), the district
court was entitled to treat the factual assertions therein as established. Fed.
R. Crim. Proc. 32(i)(3)(A). The trial court did not plainly err when it
found, based on the facts as reported in the PSR, that Hilgers had
defrauded his mother and his wife.
