                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 20 2013

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



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50261

                  Plaintiff - Appellee,          D.C. No. 8:08-cr-00150-AG-1

            v.                                   MEMORANDUM*

JEANNE MARIE ROWZEE, AKA Jeanne
M. Rowzee,

                  Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                     Argued and submitted November 6, 2013
                              Pasadena, California

Before: FISHER and CLIFTON, Circuit Judges, and SINGLETON, Senior
District Judge.**

      Jeanne Marie Rowzee appeals her conviction and the sentence imposed

following her guilty plea to one count of conspiracy (count one) and one count of



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

      **     The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
securities fraud (count two). We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

                                           I

      Rowzee contends that the government breached the plea agreement because,

“[a]lthough the prosecutor did recommend a 70 month sentence in his sentencing

papers, he made comments at sentencing that appeared to implicitly recommend a

higher sentence.” Considering the totality of the circumstances, we hold that the

government did not breach the plea agreement when it stated that “70 months . . .

would be the minimum . . . the court should impose in a case like this,” because it

offered the statement not to argue for a higher sentence but rather in response to

Rowzee’s request for a 36-month sentence. See United States v. Moschella, 727

F.3d 888, 892 (9th Cir. 2013). This was permissible under the plea agreement.

                                          II

      Rowzee additionally argues that the district court committed Rule 11 error

because it failed to adequately inform her about the nature of the charges and failed

to establish that there was a sufficient factual basis for Rowzee’s guilty plea to the

securities fraud count. Rowzee acknowledges that the plain error standard of

review applies. Considering the totality of the circumstances and in light of her

personal characteristics, we hold that Rowzee cannot demonstrate that the district


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court committed plain error with respect to her understanding of the conspiracy

charge. As Rowzee acknowledges, the Information alleges an overt act in

furtherance of the conspiracy, and while the “nature of the offense” section of the

plea agreement omits mention of an overt act, the factual basis for the offense as

described in the plea agreement does. Although a district court that sufficiently

explains to a defendant the factual basis of charges may nonetheless err when it

does not explain the legal elements of the charges, McCarthy v. United States, 394

U.S. 459, 466-67 (1969), given Rowzee’s legal background in SEC litigation and

white collar criminal defense, as well as her acknowledgment of the truth and

accuracy of the factual basis in the plea agreement, Rowzee cannot show that the

district court plainly erred in ensuring that Rowzee understood the nature of the

conspiracy charges.

      The record also demonstrates that Rowzee was adequately informed that her

offense involved the violation of an SEC regulation, and the court did not plainly

err in its colloquy. The description of the elements of the securities fraud offense

in the plea agreement, as read during the plea colloquy, expressly incorporated the

violation of the relevant SEC regulation, 17 C.F.R. § 240.10b-5, and there is no

requirement that the regulation be specifically cited. See United States v. Tarallo,

380 F.3d 1174, 1187 (9th Cir. 2004).


                                          3
      Rowzee also fails to demonstrate that the district court erred in determining

that there was a factual basis for count two. In this case, the money invested by the

victims was used in a common enterprise (allegedly used to provide bridge loans to

companies) in exchange for a typical return of 25 percent to 35 percent within three

to four months. The investment opportunity was widely offered and the investors

did not exercise any control over the loans; only Rowzee and the other perpetrators

had authority to manage the investments. The undisputed facts therefore

demonstrate that the district court did not plainly err in determining under the test

set forth in SEC v. W.J. Howey Co., 328 U.S. 293, 301 (1946), that the challenged

investments were “securities” for purposes of the Securities Act, thus establishing a

factual basis for Rowzee’s guilty plea to the securities fraud count.

                                          III

      Rowzee next argues that count two of the Information is defective because it

failed to apprise her of the securities fraud charge. Even assuming the Information

is defective, however, Rowzee’s unconditional guilty plea waived any

nonjurisdictional defects contained therein, including any failure to allege an

element of a federal offense. See United States v. Cotton, 535 U.S. 625 (2002);

United States v. Velasco-Medina, 305 F.3d 839, 845-46 (9th Cir. 2002).




                                          4
                                           IV

      Rowzee next argues that the restitution order was improper because it

exceeded the amount of actual damages and was based on insufficient evidence.

At sentencing, however, the court ordered, “The victim’s recovery is limited to the

amount of their loss and the defendant’s [liability] for restitution ceases if and

when the victims receive full restitution.” The court therefore provided a

mechanism that would enable Rowzee to present more accurate evidence regarding

victims’ actual losses and thus reduce the total restitution amount, which is exactly

what defense counsel requested at sentencing. And because the court explicitly

stated that Rowzee is only liable until the victims receive the full restitution of their

actual loss, she cannot demonstrate that the restitution that will be imposed is

greater than the actual loss.

                                           V

      Rowzee finally argues that the district court erred in imposing mental health

and occupations restrictions as conditions of supervised release. Because Rowzee

did not object below to the conditions of supervised release, we review this claim

for plain error. United States v. Johnson, 626 F.3d 1085, 1088-89 (9th Cir. 2010).

      Rowzee first argues that the mental health condition is vague because it does

not specify whether the treatment refers solely to outpatient treatment or includes


                                           5
inpatient care. At oral argument, the parties agreed that Rowzee is not presently a

danger to herself or others based upon her mental health. The government further

acknowledged that the supervised release condition would not permit involuntary

commitment without a judicial order after notice and an opportunity to be heard.

See United States v. Esparza, 552 F.3d 1088, 1091 n.5 (9th Cir. 2009). Based on

this reading, we conclude that the condition is not overbroad.

      Rowzee also contends that the reasons for the mental health treatment

conditions are “not apparent” and unnecessary because she has a history of

voluntarily seeking help. However, the record is replete with Rowzee’s own

references to her mental health issues–including six pages of her sentencing

position that are devoted to discussion of her post-traumatic stress disorder, long-

term depression, and bipolar disorder. See United States v. Wolf Child, 699 F.3d

1082, 1090 (9th Cir. 2012) (court not required to state reasons for supervised

release conditions where “reasoning is apparent from the record”). The same

reasons support the district court’s authorizing disclosure of information to her

treatment provider and social service agencies. See United States v. Stoterau, 524

F.3d 988, 1011 (9th Cir. 2008).

      Rowzee also challenges as substantively unreasonable and overbroad the

court’s order that she provide her probation officer with access to “any and all


                                          6
business records, client lists and other records” for any business she owns in whole

or in part. We conclude, however, that the challenged condition is reasonably

related to the circumstances of Rowzee’s conviction and to the goals of deterrence

and protection of the public. See 18 U.S.C. §§ 3553(a)(1), (2) and 3583(d); United

States v. Daniels, 541 F.3d 915, 924 (9th Cir. 2008).

      AFFIRMED.




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