                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 12 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-30231

              Plaintiff - Appellee,              D.C. No. 6:15-cr-00001-SEH-1

 v.
                                                 MEMORANDUM*
ERIKA RAE BROWN,

              Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                              Submitted July 6, 2016**
                                Seattle, Washington

Before: TASHIMA, McKEOWN, and M. SMITH, Circuit Judges.

      Erika Rae Brown appeals her sentence for one count of money laundering in

violation of 18 U.S.C. § 1957. The district court imposed a 56-month sentence




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
based on its calculation of actual loss to the victims of $3,741,047.82.

U.S.S.G. § 2B1.1(b), cmt. n.3(A).

      We review the district court’s interpretation of the Sentencing Guidelines de

novo and its findings of fact for clear error. See United States v. Hornbuckle, 784

F.3d 549, 553 (9th Cir. 1990).1 We review sentencing decisions for abuse of

discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).

We affirm the sentence.

      Brown argues that the district court erred by applying an 18-level increase in

the offense level because the district court should have used the gain to Brown

rather than the actual loss in calculating the loss. The Guideline defines “actual

loss” as “the greater of actual or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A).

The gain to the defendant is relevant only where “there is a loss but it reasonably

cannot be determined.” Id. at cmt. n.3(B). Here, the actual loss to the victims is

reasonably determinable by the amount of the fraudulently obtained loan. That

Brown forwarded the bulk of the proceeds of the crime to her friends does not

      1
         We have previously noted an intra-circuit split as to whether abuse of
discretion or de novo review applies to the application of the Sentencing
Guidelines to the facts of the case. See United States v. Staten, 466 F.3d 708, 713
n.3 (9th Cir. 2006); see also Hornbuckle, 784 F.3d at 553. We need not resolve
this split because the “choice of standard . . . does not affect the outcome of this
case.” Hornbuckle, 784 F.3d at 553 (quoting United States v. Swank, 676 F.3d
919, 921 (9th Cir. 2012)).

                                          2
change the focus on actual loss because that number is readily identifiable. The

district court therefore did not err in relying on this estimate of the actual loss.

      Brown also argues that the district court abused its discretion in denying her

request for a downward variance under 18 U.S.C. § 3553(a) based on alleged

unfairness of sentencing under an “artificially inflated” guidelines range, an

absence of any prior criminal history, an “absent risk” that Brown would commit

another crime, and the burden that Brown’s incarceration would put on her family.

In determining whether there was an abuse of discretion, we assess whether the

district court’s decision was “illogical, implausible, or without support in

inferences that may be drawn from facts in the record.” United States v. Hinkson,

585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).

      The district court did not abuse its discretion in rejecting Brown’s

characterization of her individual culpability and in giving no additional weight to

any personal hardship to Brown’s family caused by her incarceration. The record

showed that Brown played a central role in the complex scheme and personally

fabricated checks purporting to show legitimate business expenses in order to

support draws on the loan. The record also showed that the harm to Brown’s

dependents is mitigated by Brown’s partner’s duty to provide care. In sum, the

mid-range, 56-month sentence—for a complex financial crime causing millions of


                                            3
dollars in loss—is not demonstrably greater than necessary to serve the purposes of

sentencing. Kimbrough v. United States, 552 U.S. 85, 110 (2007) (quoting 18

U.S.C. § 3553(a)).

      AFFIRMED.




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