                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 14 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-10285

              Plaintiff - Appellee,              D.C. No. 1:09-CR-00179-LEK-1

  v.
                                                 MEMORANDUM *
WELTON KALANI,

              Defendant - Appellant.



                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                             Submitted June 11, 2013 **
                                Honolulu, Hawaii

Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.

       Welton Kalani appeals his conviction for conspiracy, the district court’s

calculation of sentencing loss, and the district court’s restitution award. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


        *
             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).
      Sufficient evidence at trial supported Kalani’s conviction of a single

conspiracy. See United States v. Duran, 189 F.3d 1071, 1078 (9th Cir. 1999).

Based on this evidence, a rational trier of fact could have found an overall

agreement existed between Kalani and his co-conspirators to sell properties to

straw buyers to divert equity from the homeowners. See id. at 1079–80. The

method of preparing the loan applications and falsely verifying the loan applicants’

overstated incomes remained consistent throughout the three transactions and

involved the same key players. See United States v. Fernandez, 388 F.3d 1199,

1227 (9th Cir. 2004). Moreover, the co-conspirators “knew, or had reason to know

. . . that [their] benefits were probably dependent upon the success of the entire

operation,” United States v. Kearney, 560 F.2d 1358, 1362 (9th Cir. 1977), since

each part of the loan application process had to be completed successfully for the

mortgage to be approved. Even if a variance existed between the conspiracy

charged and proved, Kalani fails to demonstrate how this resulted in substantial

prejudice requiring reversal. See Kotteakos v. United States, 328 U.S. 750, 752

(1946).

      The district court properly calculated sentencing loss based on the amount of

the outstanding loan balances less the actual sales proceeds. See United States v.

Yeung, 672 F.3d 594, 604 (9th Cir. 2012).


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      The district court also correctly calculated the restitution award as to the

Waipono property based on the formula in Yeung. See id. at 601–02. The district

court’s designation of the victim as “PNC Financial Services, . . . , and or any other

financial institution that had the legal right to the property in question,” took into

account the evidence Kalani submitted at sentencing suggesting that PNC sold the

Waipono mortgage to HSBC, and was within the district court’s flexibility in

drafting its restitution award. See id. at 602. Because the district court explained

its reasoning and based its award on “an adequate evidentiary basis,” remand is not

appropriate. See id. at 602, 604–05.

      AFFIRMED.




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