                                                                             FILED
                           NOT FOR PUBLICATION                               JUN 08 2015

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



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10134

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00287-GMN-
                                                 VCF-1
 v.

LANCE KELLOW,                                    MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                 Gloria M. Navarro, Chief District Judge, Presiding

                        Argued and Submitted May 12, 2015
                             San Francisco, California

Before:       KOZINSKI, PAEZ and CLIFTON, Circuit Judges.

      1. The district court didn’t abuse its discretion in applying a sophisticated-

means enhancement. The evidence showed that defendant shuffled funds between

multiple bank accounts in furtherance of the mortgage fraud, and that sort of

conduct is sufficiently “complex” to constitute sophisticated means. See United


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                page 2
States v. Jennings, 711 F.3d 1144, 1147 (9th Cir. 2013); see also U.S.S.G.

§ 2B1.1(b)(10) & n.9.


      2. Nor did the district court abuse its discretion by applying an abuse-of-

trust enhancement. The evidence showed that defendant’s position as a mortgage

broker “significantly facilitated the commission . . . of the offense,” because his

brokerage company was involved in the fraud scheme and he knew how to falsify

mortgage applications based on his background. See U.S.S.G. § 3B1.3; United

States v. Thornton, 511 F.3d 1221, 1227 (9th Cir. 2008).


      3. The district court properly denied a minor-participant reduction. See

U.S.S.G. § 3B1.2(b) & n.5. The testimony at trial established that defendant was

very involved in preparing loan applications and bolstering the straw buyer’s

credit. As such, defendant wasn’t “substantially less culpable than the average

participant” in a mortgage fraud scheme. United States v. Hurtado, 760 F.3d 1065,

1068–69 (9th Cir. 2014) (emphasis omitted).


      4. There was no impermissible disparity between defendant’s sentence and

those of his co-defendants, because defendant and his co-defendants weren’t

similarly situated. Both co-defendants pled guilty to only one count and accepted
                                                                                      page 3
responsibility for the mortgage fraud, whereas defendant went to trial and was

convicted on five counts. “Failure to afford leniency to those who have not

demonstrated those attributes on which leniency is based is unequivocally

constitutionally proper.” United States v. Carter, 560 F.3d 1107, 1121 (9th Cir.

2009) (internal quotation marks and alterations omitted).


      5. The district court didn’t err in ordering $834,500 in restitution. The

district court thoroughly explained the basis for the restitution amount, and

defendant does not indicate why that explanation was insufficient.


      6. The district court didn’t err by ordering forfeiture of $2,766,400.

Defendant makes no argument that the forfeiture amount was improper. He claims

only that he received insufficient notice of the amount. But the government

informed defendant all along that it would seek forfeiture of all the proceeds of his

criminal activity, and the criminal forfeiture rule specifically states that “[t]he

indictment . . . need not . . . specify the amount of any forfeiture money judgment

that the government seeks.” Fed. R. Crim. P. 32.2(a).


      7. Sufficient evidence supports defendant’s conviction. In the light most

favorable to the government, the evidence at trial established that defendant
                                                                             page 4
knowingly engaged in the mortgage fraud conspiracy by, among other things,

helping falsify mortgage applications and recruiting the straw buyer.


      AFFIRMED.
