                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 24 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-30074

                Plaintiff-Appellee,             D.C. No.
                                                2:16-cr-00007-RSM-2
 v.

NATHANIEL WELLS,                                MEMORANDUM*

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    18-30077

                Plaintiff-Appellee,             D.C. No.
                                                2:12-cr-00339-RSM-1
 v.

NATHANIEL WELLS,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

              Submitted and Submission Deferred January 13, 2020**
                         Resubmitted February 20, 2020

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                Pasadena, California

Before: RAWLINSON, BEA, and NGUYEN, Circuit Judges.

      Defendant-Appellant Nathaniel Wells pleaded guilty to one count of

Conspiracy to Commit Bank Fraud, 18 U.S.C. §§ 1344 and 1349, and the district

court held an evidentiary hearing to determine the proper application of the federal

Sentencing Guidelines, U.S.S.G. § 2B1.1 et seq., and entered findings with respect

to the fraud’s loss amount and upward adjustments on Wells’ sentence. Wells

appeals the district court’s determinations supporting the enhancements to his

sentence under the Sentencing Guidelines, its denial of two post-hearing motions,

and its order of restitution. We assume familiarity with the facts and procedural

history and discuss them only as necessary to explain our decision.

      1.     The district court did not err in determining Wells’ sentencing

enhancements related to loss amount, leadership role, and number of victims. First

of all, the district court correctly applied a preponderance of the evidence standard

in making its sentencing enhancements determinations because clear and

convincing evidence is not required when the enhancements are based on the

conduct of a conspiracy rather than on uncharged conduct. United States v.

Armstead, 552 F.3d 769, 777 (9th Cir. 2008) (“Enhancements based on the extent

of a conspiracy are ‘on a fundamentally different plane than’ enhancements based

on uncharged or acquitted conduct.” (quoting United States v. Riley, 335 F.3d 919,


                                          2
926 (9th Cir. 2003))). Second, the district court did not clearly err in crediting the

ample evidence that Wells was, at the very least, a “manager” of the conspiracy.

See, e.g., United States v. Doe, 778 F.3d 814, 826 (9th Cir. 2015) (“[T]o qualify for

the § 3B1.1(c) organizer enhancement, the defendant must have the necessary

influence and ability to coordinate the behavior of others so as to achieve the

desired criminal result.”). Further, Wells’ guilty plea to the conspiracy allows him

to be held liable for the entire loss amount reasonably foreseeable within the scope

of his conspiratorial agreement, and not just for his criminal activity. United States

v. Treadwell, 593 F.3d 990, 1002–03 (9th Cir. 2010) (“[T]o comply with USSG §

1B1.3(a)(1)(B), a district court is not required to proceed item-by-item through a

complete list of all losses attributed to a criminal conspiracy and to then make an

individualized determination whether or not each item was within the scope of the

defendant’s ‘joint undertaking’ and was ‘reasonably foreseeable’ to that

defendant.”). Finally, the district court properly included merchants and payment

processors in its count of total victims because the Sentencing Guidelines do not

require that the “victims” be financial institutions in order for the enhancement to

apply. U.S.S.G. § 2B1.1 cmt. n.1 (“‘Victim’ means . . . any person who sustained

any part of the actual loss . . . [and] includes individuals, corporations, companies,

associations, firms, partnerships, societies, and joint stock companies.”).

      2.     Wells’ argument that the district court lacked subject matter


                                           3
jurisdiction is entirely meritless. Wells mistakes the district court’s findings that

some payment processors were harmed by the conspiracy for a finding that no

“financial institution” was defrauded by it, a finding that the district court did not

make. Further, at the evidentiary hearing, the government was not required to

prove the “financial institution” element of the bank fraud statute, 18 U.S.C. §

1344, because Wells had already pleaded guilty to it. But even if the government

had been required to prove this element and had failed to do so, this would not

deprive the district court of jurisdiction. It is well-established that a court’s

subsequent finding that federal law was not in fact violated does not abrogate its

jurisdiction over the case. United States v. Ratigan, 351 F.3d 957, 963 (9th Cir.

2003) (“[C]ourts have consistently determined that the jurisdictional element of

federal crimes does not present a pure question of the court’s subject-matter

jurisdiction.”).

       3.     Wells’ argument that the district court erred in denying his motion to

withdraw his guilty plea is similarly meritless. Federal Rule of Criminal Procedure

11 permits a defendant to withdraw a guilty plea “after the court accepts the plea,

but before it imposes sentence if . . . the defendant can show a fair and just reason

for requesting the withdrawal.” Again, the district court’s finding that payment

processors were harmed by the conspiracy does not equate to a finding that no

“financial institution” was defrauded by it, and thus such finding does not conflict


                                            4
with Wells’ guilty plea. Accordingly, Wells can point to no “fair and just” reason

for which the district court should have granted his motion to withdraw the plea.

      4.      For crimes committed by fraud or deceit, the Mandatory Victims

Restitution Act requires district courts to order restitution in the amount of the

victims’ actual losses. 18 U.S.C. § 3663A(c)(1)(A)(ii). We have held that a

defendant convicted of conspiracy may be held liable for all losses that were

“reasonably foreseeable” to the defendant and done in furtherance of the

conspiracy. United States v. Thomsen, 830 F.3d 1049, 1065 n.13 (9th Cir. 2016);

Riley, 335 F.3d at 932. Thus, because the district court did not abuse its discretion

in determining that Wells, based on his role in the conspiracy, could reasonably

foresee all of the actual losses that resulted from it, its order that he pay the full

loss amount in restitution is likewise not an abuse of discretion.

      5.      Finally, the district court did not err in denying Wells’ request to an

evidentiary hearing on limited remand. Because Wells was given a “‘reasonable

opportunity’ to present information to the court,” United States v. Real–Hernandez,

90 F.3d 356, 362 (9th Cir. 1996) (quoting Fed. R. Crim. P. 32(c)(3)(A) (1994)

(current version at Fed. R. Crim. P. 32(i)(1)(B))), the district court did not abuse its

discretion.

      AFFIRMED.




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