                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 19 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 17-10198

              Plaintiff-Appellee,                D.C. No. 4:14-cr-00582-JD-4

 v.
                                                 MEMORANDUM*
REFUGIO DIAZ, aka Cuco,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                     James Donato, District Judge, Presiding

                             Submitted July 11, 2018**
                             San Francisco, California

Before: TASHIMA, GRABER, and HURWITZ, Circuit Judges.

      A jury convicted Defendant Refugio Diaz of agreeing to rig bids at home

foreclosure auctions, in violation of the Sherman Act, 15 U.S.C. § 1. The district

court sentenced Defendant to eight months’ imprisonment followed by a period of

supervised release. As conditions of supervised release, the district court ordered

      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
that Defendant, as directed by his probation officer, notify third parties of the risks

associated with his criminal record, personal history, and characteristics.

      1. The government offered sufficient evidence for a reasonable juror to

conclude that Defendant’s conduct occurred "within the flow" of interstate

commerce. McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 235

(1980). Although all auctions at issue took place in Alameda County, California,

the government offered evidence that those auctions functioned as "integral parts,"

Goldfarb v. Va. State Bar, 421 U.S. 773, 785 (1975), of various interstate transfers.

For example, Danli Liu, one of Defendant’s co-conspirators, testified that she won

one of the rigged auctions and, as a result, sent a cashier’s check to a trustee in

Arizona. That same trustee later sent Liu, from Arizona to California, a partial

refund in conjunction with the same sale. That testimony and other evidence,

viewed in the light most favorable to the verdict, United States v. Ubaldo, 859 F.3d

690, 699 (9th Cir. 2017), cert. denied, 138 S. Ct. 704 (2018), supports the

conclusion that the scheme at issue took place "within the flow" of interstate

commerce, McLain, 444 U.S. at 235, 241–43.

      2. There was no constructive amendment of the indictment. The indictment

charged Defendant with respect to "business activities . . . within the continuous

and uninterrupted flow of . . . interstate trade and commerce." The jury


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instructions tracked that charge, explaining that "[t]he government must prove

beyond a reasonable doubt that the conspiracy charged in the indictment occurred

in the flow of interstate commerce." Those instructions did not permit the jury to

convict Defendant on conduct different from that set forth in the indictment.

United States v. Wilbur, 674 F.3d 1160, 1178 (9th Cir. 2012).

      3. The district court did not err at sentencing by increasing the offense level

under U.S.S.G. § 2R1.1(b)(2) on the ground that Defendant’s conduct affected

more than $1 million in commerce. Under the Guidelines, the relevant amount is

not just the decrease in value resulting from a defendant’s scheme, but instead is

the overall amount of commerce involved in the scheme. See U.S.S.G.

§ 2R1.1(b)(2) background n.7 (noting that whether the increase applies is "not

based directly on the damage caused or profit made by the defendant").

      4. The district court plainly erred in imposing the "notice of risks" condition

in the form used. We held in United States v. Evans, 883 F.3d 1154, 1157 (9th Cir.

2018), petition for cert. filed, ___ U.S.L.W. ___ (U.S. May 29, 2018) (No.

17-9208), that an identically worded condition was unconstitutionally vague.

Accordingly, we vacate the "notice of risks" condition and remand for resentencing

in light of Evans.

      AFFIRMED in part; VACATED and REMANDED in part.


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