                                                                             FILED
                           NOT FOR PUBLICATION                                JUN 18 2014

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



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 13-50065

              Plaintiff - Appellee,             D.C. No. 2:12-cr-00062-ODW-1

       v.
                                                MEMORANDUM*
NICOLAS VILLAGRAN RUBIO, AKA
Velazquez Hernandez Amador, AKA
Nicolas Rubio Arellano, AKA Jose Luis
Carreon, AKA Leon Garcia Leonardo,
AKA Rafa, AKA Nicolas Via Gran Rubio,
AKA Rafael Villagran,

              Defendant - Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                   Otis D. Wright II, District Judge, Presiding

                        Argued and Submitted June 3, 2014
                              Pasadena, California

Before: REINHARDT, FISHER and MURGUIA, Circuit Judges.

      Nicolas Villagran Rubio appeals from the district court’s judgment and

challenges the 85-month sentence and five-year term of supervised release imposed



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
following his guilty-plea conviction for conspiracy to commit bank fraud, in

violation of 18 U.S.C. § 1349. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      1.     The district court did not plainly err in considering Rubio’s inability

to pay restitution in discussing various sentencing factors. See United States v.

Benford, 574 F.3d 1228, 1231 (9th Cir. 2009). At the sentencing hearing, the

district court said, “I am looking at the harm that he has done to people, and I don’t

think any of this money will ever get repaid. I really don’t. I think people are

simply going to be out of hundreds of thousands of dollars.” Rubio contends the

district court erred by considering his inability to pay restitution as an aggravating

factor in his sentencing. See United States v. Burgum, 633 F.3d 810, 816 (9th Cir.

2011) (holding that a district court plainly errs when it explicitly invokes inability

to pay restitution as an aggravating factor, and “improperly inject[s]

socioeconomic status into the sentencing calculus”). However, there is no

“absolute bar to considering the possibility of restitution.” United States v. Rangel,

697 F.3d 795, 804 (9th Cir. 2012) (explaining that the concern in Burgum was

“discrimination against poor and indigent defendants” but that inability to pay may

be evaluated in other circumstances, such as “[c]onsideration of the impact on the

victims”); see United States v. Anekwu, 695 F.3d 967, 989 (9th Cir. 2012) (holding


                                           2
that a district court did not plainly err in considering an inability to pay restitution

“to show that the court had considered imposing a lesser sentence to facilitate the

payment” and “to explain to the victims . . . that they should not expect to receive”

money).

      The district court did not explicitly invoke Rubio’s inability to pay as an

aggravating factor, nor did it clearly inject Rubio’s socioeconomic status into its

sentencing decision. Its remarks were consistent with a concern for the financial

impact of Rubio’s fraudulent conduct on his victims.

      2.     The district court did not plainly err in applying a sophisticated means

enhancement under U.S.S.G. § 2B1.1(b)(10)(C). The uncontroverted presentence

investigation report indicates that Rubio played a supervisory role in a scheme that

included: forging two kinds of documents, Mexican voter identification cards and

utility bills; opening 23 fraudulent bank accounts using many fictitious names,

both of individuals and businesses; using altered stolen checks; and hiding high-

value transactions with business accounts. See, e.g., United States v. Tanke, 743

F.3d 1296, 1307-08 (9th Cir. 2014) (“Although Tanke did not use ‘fictitious

entities, corporate shells, or offshore financial accounts,’ as the Sentencing

Commission’s commentary contemplates, he created at least six false invoices and

falsified carbon copies of checks in Azteca’s check register on at least 10 occasions


                                            3
to conceal the payments.”); United States v. Horob, 735 F.3d 866, 872 (9th Cir.

2013) (“Horob did more than lie to obtain a loan. He manipulated several people to

lie for him, used several different bank accounts (including accounts of other

people) to move funds around, and fabricated numerous documents. Moreover, the

complicated and fabricated paper trail made discovery of his fraud difficult.”);

United States v. Jennings, 711 F.3d 1144, 1145 (9th Cir. 2013) (“Conduct need not

involve highly complex schemes or exhibit exceptional brilliance to justify a

sophisticated means enhancement. Defendants’ effort to conceal income by using

a bank account with a deceptive name was sufficiently sophisticated to support

application of the sentencing enhancement.”).

      3.     Rubio contends the district court was unreasonable in imposing a five-

year term of supervised release. While “it would be procedural error to fail

adequately to explain the sentence selected . . . we have held that the district court

need not state at sentencing the reasons for imposing each condition of supervised

release . . . if the reasoning is apparent from the record.” United States v. Collins,

684 F.3d 873, 889-90 (9th Cir. 2012) (internal quotation marks and alterations

omitted). The government described at Rubio’s sentencing hearing the need “to

provide additional deterrence not just for future crimes but also for future

reentries,” and the district court explained that it was “thinking about imposing”


                                           4
supervised release “as a further barrier” to Rubio illegally reentering the United

States. Based on the sentencing hearing and the record in general, we conclude

that the district court provided adequate reasoning for the imposition of supervised

release and did not plainly err.

      4.     The district court was not procedurally or substantively unreasonable

in any other manner. There was no plain error with respect to Rubio’s contentions

that the district court relied on clearly erroneous facts, failed to adequately consider

Rubio’s arguments or created unwarranted sentencing disparities. Moreover, the

district court properly considered the factors listed under 18 U.S.C. § 3553(a).

      AFFIRMED.




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