                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 16 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50330

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02967-IEG-1

  v.
                                                 MEMORANDUM*
JOSHUA JOHN HESTER,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                 Irma E. Gonzalez, Senior District Judge, Presiding

                       Argued and Submitted July 10, 2014
                 Submission Withdrawn and Deferred July 11, 2014
                         Resubmitted September 12, 2014

                                Pasadena, California

Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.

       Joshua John Hester (Hester) appeals from the district court’s restitution

order entered in favor of JP Morgan Chase Bank (Chase) and

CitiGroup/CitiMortgage (Citi). The underlying drug trafficking scheme involved


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
two properties relevant to this appeal—the Rancho Santa Fe property and the

Palomar property. See United States v. Luis, No. 13-50020, —F.3d—, 2014 WL

4236390, at *1 (9th Cir. Aug. 28, 2014).

      The district court correctly determined that the Mandatory Victim

Restitution Act (MVRA) required Hester and his co-defendant Marco Luis (Luis)

to pay restitution for offenses against property. See id. Chase and Citi each

qualified as a “victim” entitled to restitution under the MVRA. Id. However, in

calculating restitution as to the Rancho Santa Fe property, and without the benefit

of our recent Luis decision, “the district court erred by calculating restitution based

on the unpaid principal loan balance rather than the value of the loans when Chase

purchased them. . . . ” Id. at *4. On remand, the district court should use the

formula for a loan purchaser rather than for a loan originator. See id. at *4-*5.

Therefore, “Yeung1 compels us to vacate the restitution order with respect to the

Rancho Santa Fe property loan calculation and remand so the district court may

recalculate Chase’s loss, based on how much Chase paid for the fraudulent loans

(or the value of the loans when Chase acquired them).” Id. at *5 (citation,




      1
        United States v. Yeung, 672 F.3d 594 (9th Cir. 2012), overruled in part on
other grounds by Robers v. United States, 134 S. Ct. 1854 (2014).

                                     Page 2 of 3
alterations, and internal quotation marks omitted). No similar abuse of discretion

occurred in calculating restitution for the Palomar property loans. See id.2

      We also reject Hester’s argument that the district court’s restitution order

should be reversed because it was untimely. Although 18 U.S.C. § 3664(d)(5)

requires that a final determination of victims’ losses be made within ninety days of

sentencing, that provision is for the benefit of victims, not defendants. See United

States v. Marks, 530 F.3d 799, 811-12 (9th Cir. 2008). Absent a showing of

prejudice resulting from the delay, any error was harmless. See United States v.

Moreland, 622 F.3d 1147, 1173 (9th Cir. 2010).

      AFFIRMED IN PART, VACATED and REMANDED IN PART.




      2
        While Hester also alleges error under Apprendi v. New Jersey, 530 U.S.
466 (2000), he concedes that United States v. Green, 722 F.3d 1146 (9th Cir.
2013), forecloses this argument.

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