                                                                           FILED
                           NOT FOR PUBLICATION                             APR 01 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50486

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02242-JM-5

  v.
                                                 MEMORANDUM*
AIDA AGUSTI CASTRO,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50487

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02242-JM-4

  v.

STEPHEN KENNETH CHRYSLER,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50609

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02242-JM-4

  v.


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

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-50229

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02242-JM-5

  v.

AIDA AGUSTI CASTRO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Southern District of California
                 Jeffrey T. Miller, Senior District Judge, Presiding

                       Argued and Submitted March 6, 2014
                              Pasadena, California

Before: PAEZ, N.R. SMITH, and HURWITZ, Circuit Judges.


       Defendant Aida Agusti Castro appeals her conviction for four counts of wire

fraud under 18 U.S.C. § 1343 and the district court’s restitution order. Defendant

Stephen K. Chrysler appeals his conviction for five counts of wire fraud under 18

U.S.C. § 1343, his sentence, and the district court’s restitution order. We affirm

Castro’s and Chrysler’s convictions, affirm Chrysler’s sentence, affirm the



                                       Page 2
restitution award against Castro, and dismiss as untimely Chrysler’s appeal of the

restitution award.

      1. The district court did not abuse its discretion in admitting lender

verification documents into evidence under Federal Rules of Evidence 803(6) and

902(11). See United States v. Fuchs, 218 F.3d 957, 965 (9th Cir. 2000). A number

of the verification documents appeared trustworthy on their face; verification steps

were recorded on forms containing company letterhead, and the underwriter who

conducted the verification signed the form. Moreover, the reliability of all of the

documents was further buttressed by testimony that confirmed lenders engaged in

verification practices. Contrary to Defendants’ arguments, there is no indication

that anyone involved in verifying the loan applications in this case was forging

verification documentation, or that this practice was so rampant in the industry as

to render all verification documentation untrustworthy.

      2. The district court correctly held that the verification documents did not

implicate the Confrontation Clause. Business records “created for the

administration of an entity’s affairs and not for the purpose of establishing or

proving some fact at trial . . . are not testimonial” and may be admitted absent

confrontation. Melendez-Diaz v. Massachussetts, 557 U.S. 305, 324 (2009); see

also United States v. Rojas-Pedroza, 716 F.3d 253, 1267 (9th Cir. 2013). Here,


                                        Page 3
there was ample evidence that the verification documents were created for the

purpose of determining whether a loan application should be approved, and not for

use in court. Borrowers testified that they had been warned banks might call to

verify certain information. An accountant and a purported customer testified that

they received verification calls related to loan applications. Lender employees

testified that verification was a key part of the loan application process.

      3. The district court did not err in denying Castro’s and Chrysler’s motions

for judgment of acquittal. In ruling on sufficiency-of-the-evidence challenges,

courts consider “the evidence in the light most favorable to the prosecution” and

ask whether, viewing the evidence in this light, “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Here, the verification documents,

lender testimony, borrower testimony, other witness testimony, and the steps

Castro and Chrysler took to obtain supporting documentation for the fraudulent

loan applications they submitted all support the inference that misrepresentations

in the applications were material.

      4. The district court did not afford excessive or presumptive weight to the

Sentencing Guidelines recommended range in sentencing Chrysler. See United

States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (en banc). The record reflects


                                        Page 4
that the district court carefully considered all of the sentencing factors in 18 U.S.C.

§ 3553(a). In fact, the court repeatedly mentioned Chrysler’s family circumstances

and his lack of prior criminal history. Ultimately, however, the court determined

that a custodial sentence of thirty-seven months, the low end of the Guidelines

range, gave proper consideration to Chrysler’s equities, the seriousness of the

offense, the need for deterrence, and the need to avoid unwarranted sentencing

disparities.

       5. We dismiss Chrysler’s appeal of the restitution award as untimely under

Federal Rule of Appellate Procedure 4(b). Rule 4(b)(1) provides that “[i]n a

criminal case, a defendant’s notice of appeal must be filed in the district court

within 14 days after the later of: (i) the entry of either the judgment or the order

being appealed; or (ii) the filing of the government’s notice of appeal.” Subsection

(b)(2) creates a limited exception to the requirements set out in subsection (b)(1),

providing that a premature notice of appeal “filed after the court announces a

decision, sentence, or order—but before the entry of the judgment or order—is

treated as filed on the date of and after the entry.” However, subsection (b)(2) does

not aid Chrysler because his three notices of appeal of the district court’s

restitution award were all filed months before the district court had even held a

restitution hearing. Although the timeliness requirement of Rule 4(b) is not


                                        Page 5
jurisdictional, when the government does object, dismissal is mandatory. United

States v. Sadler, 480 F.3d 932, 938–42 (9th Cir. 2007). Here, by raising the issue

in its answering brief, the government timely raised the defect. Id. at 940–41.

      6. Our case law forecloses Castro’s argument that Apprendi v. New Jersey,

530 U.S. 466 (2000) applies to restitution. United States v. Green, 722 F.3d 1146,

1149–51 (9th Cir. 2013). No recent Supreme Court case is clearly irreconcilable

with our rule, and we are therefore bound to follow Green. See Miller v. Gammie,

335 F.3d 889, 900 (9th Cir. 2003) (en banc).

      7. The district court did not abuse its discretion in ordering Castro to pay

restitution for losses arising out of uncharged and acquitted conduct. “[W]hen

someone is convicted of a crime that includes a scheme, conspiracy, or pattern of

criminal activity as an element of the offense, the court can order restitution for

losses resulting from any conduct that was part of the scheme, conspiracy, or

pattern of criminal activity.” United States v. Reed, 80 F.3d 1419, 1423 (9th Cir.

1996) (emphasis omitted); see also United States v. Brock-Davis, 504 F.3d 991,

998–99 (9th Cir. 2007); United States v. Grice, 319 F.3d 1174, 1177–78 (9th Cir.

2003). The elements of 18 U.S.C. § 1343 include “a scheme to defraud.” United

States v. Shipsey, 363 F.3d 962, 971 (9th Cir. 2004). Consequently, the restitution

award in a wire fraud case may include losses stemming from uncharged and


                                        Page 6
acquitted conduct if the district court determines, by a preponderance of the

evidence, that the losses all stem from the same scheme. See 18 U.S.C. § 3664(e);

United States v. Booth, 309 F.3d 566, 571, 575–76 (9th Cir. 2002). Here, the

consistent role Castro played in preparing the fraudulent loan applications that did

correspond to charged and convicted offenses, as evidenced by numerous trial

witnesses, supported an inference that all of the losses included in the restitution

order stemmed from loans that were part of the same common scheme.

      9. Finally, the district court’s restitution order comports with United States

v. Yeung, 672 F.3d 594 (9th Cir. 2012). The district court awarded restitution

based on the unpaid principal balance of a loan only when the government

presented evidence that the unpaid principal balance reflected the actual losses

sustained by the victims. See id. at 601–02. And, in calculating offsets to victim

losses, the district court only used the subsequent sale price of the collateral instead

of the value of the collateral at the time the victims took control of the property,

see id. at 604, when the government submitted evidence that the subsequent sale

price was higher than the value of the collateral at the time the victim took control

of the properties.



      DISMISSED in part, AFFIRMED in part.


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