                                                                           FILED
                            NOT FOR PUBLICATION                            OCT 09 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10186

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00051-RLH-
                                                 PAL-1
  v.

CONNIE FARRIS,                                   MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                  Roger L. Hunt, Senior District Judge, Presiding

                            Submitted October 7, 2014**
                             San Francisco, California

Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.

       Connie Farris appeals the sentence imposed by the district court after she

was found guilty of 39 counts of mail fraud. We have jurisdiction under 28 U.S.C.

§ 1291. We review the district court’s sentencing decisions for abuse of discretion.


        *
             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).
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008). We affirm in-part,

vacate in-part, and remand to the district court.

                                           I

      The district court permissibly calculated the offense level and guidelines

range at Farris’s sentencing hearing. As a basis for the loss amount and number of

victims, the district court considered charts produced in relation to five fraudulent

loans Farris marketed while leading a group of companies referred to as Global

Express. The district court properly considered this evidence as relevant conduct

under the Guidelines. The fact that the charts were initially produced in a related

civil enforcement action does not preclude their use in a criminal case. See Pepper

v. United States, ___ U.S. ___, 131 S.Ct. 1229, 1241, (2011) (noting that district

courts may base sentencing decisions on all § 3553(a) factors, subject to

reasonableness review).

                                           II

      The district court’s non-specific resolution of the loss amount and number of

victims for purposes of calculating the Guidelines offense level was not error, as

Farris did not propose a specific objection to the loss amount calculation. See

United States v. Stoterau, 524 F.3d 988, 1011 (9th Cir. 2008) (noting that a district

court is required to rule on whether a particular submission may be considered in


                                           2
sentencing only where there is a specific factual objection). Farris’s concerns

about the reliability of the charts were not expressed at trial. She, in fact, stipulated

to their introduction. Her objections are therefore forfeited, and thus subject to

plain error review. See Puckett v. United States, 556 U.S. 129, 134 (2009).

Farris’s claim that the district court erred in assessing the loss amount and number

of victims fails under plain error review.

                                             III

      The district court did not err by applying the aggravating role adjustment

under Chapter Three of the Guidelines. Because Farris did not raise this issue

before the district court, this court may review only for plain error. United States

v. Rose, 20 F.3d 367, 373 (9th Cir. 1994). A court may apply the leader or

organizer aggravating role adjustment when conduct is “otherwise extensive” even

if there are not more than five criminally responsible participants in the crime. See

United States v. Booth, 309 F.3d 566, 577 (9th Cir. 2002) (quoting U.S.S.G.

§ 3B1.1(a)). Evidence at trial showed that Farris perpetrated an elaborate fraud

involving millions of dollars, many employees, and victims across several states.

The district court’s decision to apply the adjustment was not error, much less error

that is “obvious” or “clear,” as the plain error standard requires. See United States

v. Olano, 507 U.S. 725, 734 (1993).


                                             3
                                          IV

      The district court’s restitution order is inconsistent with the offense level

calculation and is not adequately justified on the record. The district court ordered

restitution in the amount of $31,651,640.29 at sentencing without a detailed

recitation of the basis for the calculation. Presumably, the restitution order

represented losses traceable to Farris’s five fraudulent loan transactions and her

activities to market the Global Express Real Estate Investment Fund. The

restitution order was later amended by order of the district court to $32,773,967.48

to correct a computation error.

      The restitution amount ordered is incompatible with the district court’s

decision to sustain Farris’s objection to the loss amount. The district court found

that the loss amount, although then not expressly determined, should be limited to

the five fraudulent loan transactions. That predicate decision as to the base offense

level is not consistent with the restitution the court ordered, which was apparently

based on both the five fraudulent loans and Farris’s activities marketing the Real

Estate Investment Fund. The district court’s restitution order is therefore vacated

and the case remanded for further findings or recalculation in accordance with the

district court’s decision to sustain Farris’s loss amount objection.

      AFFIRMED IN-PART and VACATED IN-PART; REMANDED.


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