                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 26 2010

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

UNITED STATES OF AMERICA,                        No. 09-30389

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00010-DWM-1

  v.
                                                 MEMORANDUM*
WILLIAM EDWARD MARLIN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                   Donald W. Molloy, District Judge, Presiding

                       Argued and Submitted July 14, 2010
                              Seattle, Washington

Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.

       William Edward Marlin pled guilty to one count of mail fraud in violation of

18 U.S.C. § 1341 and one count of money laundering in violation of 18 U.S.C.

§ 1956. The district court imposed concurrent 121-month sentences on each count,

three years of supervised release, and $1,211,300 in restitution. On appeal, Marlin



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
challenges the district court’s calculation of the total loss amount, its use of the

preponderance of the evidence standard in calculating total loss, and the

substantive reasonableness of his 121-month sentence. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

      The district court applied an 18-level enhancement pursuant to U.S.S.G.

§ 2B1.1(b)(1)(J), finding that Marlin was responsible for $2,602,550 in total losses

as a result of his role in the Children’s Family Films enterprise. Marlin contends

that the district court’s loss calculation was erroneous, both because it was not

proven by clear and convincing evidence and because, even under the

preponderance of the evidence standard, there was insufficient evidence linking the

Children’s Family Films and Star Max enterprises. See United States v. Zolp, 479

F.3d 715, 718 (9th Cir. 2007) (noting that, where an extremely disproportionate

sentence results from the application of an enhancement, facts underlying the loss

calculation must be supported by clear and convincing evidence).

      These arguments are not persuasive. Although the district court initially

applied the preponderance of the evidence standard, Judge Molloy ultimately

stated that “there is far more than clear and convincing evidence that the loss

amount in this case is $2,626,050.” We agree with the district court that, under

either standard, the evidence was sufficient to link the Star Max and Children’s


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Family Films enterprises after February 2006. Thus, the district court’s loss

calculation was a reasonable and proper estimate of the total losses. See U.S.S.G.

§ 2B1.1 cmt. n.3(C) (2008) (“The court need only make a reasonable estimate of

the loss.”).

       As to the substantive reasonableness of Marlin’s sentence, we conclude that

the district court did not abuse its discretion in imposing the concurrent 121-month

sentences. See Gall v. United States, 552 U.S. 38, 45-46 (2007) (applying an abuse

of discretion standard to the substantive reasonableness inquiry). Specifically,

Marlin argues that the district court failed to consider adequately the 18 U.S.C.

§ 3553(a)(1) factors and that the 121-month sentence created an unwarranted

sentencing disparity. We conclude that the district court’s consideration of the

§ 3553(a)(1) factors was adequate and that the 121-month sentence, at the low end

of the Guidelines, did not constitute an unwarranted sentencing disparity.

       AFFIRMED.




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