                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                          No. 11-50377
                 Plaintiff-Appellee,
                                                      D.C. No.
                      v.                           8:11-cr-00024-
                                                      ODW-1
 RONALD DEAN MOSCHELLA,
             Defendant-Appellant.
                                                      OPINION

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

                  Argued and Submitted
           December 5, 2012—Pasadena, California

                      Filed August 14, 2013

   Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit
      Judges, and Jennifer G. Zipps, District Judge.*

                     Opinion by Judge Zipps




 *
   The Honorable Jennifer G. Zipps, District Judge for the U.S. District
Court for Arizona, sitting by designation.
2                UNITED STATES V. MOSCHELLA

                           SUMMARY**


                           Criminal Law

    Affirming a criminal judgment entered following the
defendant’s guilty plea to mail fraud and wire fraud, the panel
disagreed with the defendant that the government breached
the plea agreement by tacitly urging the district court to
impose a sentence above the agreed-to recommendation.

    The panel held that because the sentence outside of the
Sentencing Guidelines range was the result of a variance and
not a departure, Fed. R. Crim. P. 32(h) did not require the
district court to give notice.

    The panel held that the defendant failed to establish (1)
that the district court erred by failing to sua sponte determine
the sufficiency and reliability of statements proffered by the
government in support of restitution for newly-discovered
victims, or (2) that if such error occurred, it was sufficient to
undermine confidence in the outcome of the proceedings.

    The panel held that the district court properly exercised its
discretion in imposing a special condition of supervised
release requiring that the defendant apply all monies received
to his court-ordered financial obligations. The panel
disagreed with the defendant that 18 U.S.C. § 3664(n)
authorizes a court to impose a condition of this nature only
during incarceration.


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               UNITED STATES V. MOSCHELLA                     3

                         COUNSEL

Gene D. Vorobyov, Law Office of Gene Vorobyov, San
Francisco, California, for Defendant-Appellant.

Robert J. Keenan (argued), Assistant United States Attorney;
André Birotte, Jr., United States Attorney; Robert E.
Dugdale, Assistant United States Attorney, Santa Ana,
California, for Plaintiff-Appellee.


                          OPINION

ZIPPS, District Judge:

    Defendant Ronald Dean Moschella pleaded guilty to five
counts of mail fraud and two counts of wire fraud, in
violation of 18 U.S.C. §§ 1341 and 1343. He was
subsequently sentenced to 63 months’ imprisonment and 3
years’ supervised release. On appeal, Defendant claims: (1)
the government breached the plea agreement by arguments it
made at sentencing; (2) the district court failed to give notice
of its intent to impose a sentence above the range suggested
by the Sentencing Guidelines as required by Fed. R. Crim. P.
32(h); (3) the district court erred in ordering restitution for
two newly-discovered victims; and (4) the district court
lacked legal authority to impose Special Condition 8 as a
condition of supervision. We have jurisdiction pursuant to
18 U.S.C. § 3724(a), and we affirm.

I. Background

   Shortly after the government filed an information
charging Moschella with five counts of mail fraud and two
4             UNITED STATES V. MOSCHELLA

counts of wire fraud, Moschella pleaded guilty to all seven
counts pursuant to a written plea agreement. In the
agreement, the government agreed to recommend a sentence
of imprisonment no higher than the low end of the applicable
Sentencing Guidelines range, which the parties calculated to
be 33 months, based on a total offense level of 20 and a
criminal history category of I. The agreement permitted
Moschella to argue for a sentence below the sentencing range
based on factors set forth in 18 U.S.C. §§ 3553(a)(1), (a)(2),
(a)(3), (a)(6), and (a)(7), but reserved to the government the
right to oppose any defense motion for a sentence below the
applicable Sentencing Guidelines range. The agreement also
permitted either party to supplement the facts by providing
relevant information to the court. In addition to the terms
regarding imprisonment, Moschella agreed to pay full
restitution to the victims in the amount of $2,016,130, and the
parties stipulated that this amount could be amended upon
facts that came to the parties’ attention prior to sentencing.
Finally, Moschella waived his right to appeal “any special
condition to which defendant [did] not object at or before
sentencing.”

    The recommendation for a sentence of 33-months was not
well received by the district court. At the outset of the
sentencing hearing, the district court indicated its
dissatisfaction with recommendations by the government and
the Probation officer for a sentence at the low end of the
Guidelines range, and with the Defendant’s request for a
sentence below the low end of the range; the court indicated
it was considering a sentence at the high end of the range.

    Defense counsel attempted to convince the court that a
sentence at the low end of the Sentencing Guidelines range
was appropriate and, in light of the § 3553(a) factors, the
               UNITED STATES V. MOSCHELLA                     5

sentence should be below the range. The prosecutor
continued to recommend the sentence of 33 months, but also
addressed defense arguments for a lower sentence. The
prosecutor urged the court to reject the defense request for a
sentence below the Guidelines range in light of the
seriousness of the offense, the three year duration of the
fraudulent scheme, and the resulting $2 million in losses to
the victims. The prosecutor asserted that Moschella was
motivated by greed, and that he was a danger to society. The
prosecutor emphasized that a sentence of 33 months was
essential and that a sentence “substantially below or at all
below 33 months” would be “inadequate to achiev[e] all the
goals of sentencing,” and, specifically, deterrence.

    After hearing arguments, the district court determined that
Moschella’s Sentencing Guidelines range was inadequate to
reflect the seriousness of the offense. Citing the sentencing
factors enumerated in § 3553(a), the court increased the
offense level by four levels, resulting in a sentencing range of
51–63 months. In increasing the offense level, the court
noted that Moschella had perpetrated a sophisticated scheme
that required substantial planning and that Moschella
willingly betrayed friends. The court sentenced Moschella to
63 months’ imprisonment on each count, to be served
concurrently. In imposing the sentence, the court indicated
that it had considered the nature and circumstances of the
offense, the history and characteristics of the defendant and
the need for the sentence imposed to: reflect the seriousness
of the offense; promote respect for the law; provide just
punishment for the offense; afford adequate deterrence to
criminal conduct; and protect the public from further crimes
of the defendant.
6              UNITED STATES V. MOSCHELLA

    The court ordered Moschella to pay restitution in the total
amount of $2,096,130. This amount included restitution to
two victims, Katie Koch and Lorraine Carr, who had been
newly identified by the government and disclosed to defense
counsel just prior to the sentencing hearing. Moschella made
no objection to including these victims’ losses in the
restitution order.

    Further, the court ordered that Moschella’s term of
imprisonment be followed by three years of supervised
release, which included as a condition of supervision, Special
Condition No. 8: “defendant shall apply all monies received
from income tax refunds, lottery winnings, inheritance,
judgments and any anticipated or unexpected financial gains
to the outstanding court-ordered financial obligation.”

    On September 21, 2011, Moschella timely filed a notice
of appeal.

II. Standard of Review

    Because Defendant’s arguments on appeal were not
presented to the district court, we review for plain error.
United States v. Whitney, 673 F.3d 965, 970 (9th Cir. 2012);
United States v. Evans-Martinez, 530 F.3d 1164, 1167 (9th
Cir. 2008); United States v. Ameline, 409 F.3d 1073, 1078
(9th Cir. 2005) (en banc). Plain error is error, that is plain,
and that affects substantial rights. Ameline, 409 F.3d at 1078.
An appellate court may exercise its discretion to notice a
forfeited error that “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (citations
omitted).
              UNITED STATES V. MOSCHELLA                    7

III.   Breach of Plea Agreement

    The parties agree that the written plea agreement required
the government to recommend a sentence no higher than the
low end of the applicable Sentencing Guidelines range, which
the parties calculated to be 33 months. Defendant contends
that the government breached the plea agreement by tacitly
urging the district court to impose a sentence above the 33-
month recommendation. We disagree.

     Under the plea agreement, Defendant reserved the right
to argue for a sentence below the sentencing guideline range
and the government reserved the right to oppose any defense
argument for a reduced sentence. The plea agreement also
permitted either party to supplement the facts by providing
relevant information to the Court. Our review of the record
finds no support for Defendant’s contention that the
government implicitly breached the agreement by
highlighting certain aspects of the offense. Instead, we
conclude that the prosecutor’s sentencing arguments were a
fair response to Defendant’s request for a downward variance
from the low-end of the advisory Guidelines range.
Moreover, we note that in arguing against a downward
variance, the prosecutor affirmatively recommended three
times that the district court impose the agreed-upon 33-month
sentence.

    We reject Defendant’s comparison of his case to United
States v. Whitney, 673 F.3d 965 (9th Cir. 2012), United States
v. Mondragon, 228 F.3d 978 (9th Cir. 2000), and United
States v. Canada, 960 F.2d 263 (1st Cir. 1992), because here
the plea agreement specifically authorized the government’s
arguments. In contrast, in Whitney, we found that the
prosecutor breached the explicit terms of the plea agreement
8              UNITED STATES V. MOSCHELLA

when she argued that the incriminating information obtained
during the defendant’s cooperation warranted a two-level
increase in the Sentencing Guideline calculations. 673 F.3d
at 971–72. The plea agreement prohibited the government
from divulging incriminating information obtained during the
cooperation and required the government to recommend a
sentence at the low end of the applicable guideline range. Id.
at 970–71. Similarly, in Mondragon, the government
promised in the plea agreement that it would make no
recommendation regarding sentence; there was no plea
provision that permitted the government to respond to
arguments made by the defendant. 228 F.3d at 980.
Nonetheless, at sentencing, the government emphasized the
serious nature of the defendant’s prior offenses and his
history of resisting arrest and failing to appear in relation to
those offenses – information that was already provided to the
district court in the presentence report. Id. We concluded
that the only reason the government could have for relating
this information was to influence the court to impose a
harsher sentence than that suggested by defense counsel, in
breach of the plea agreement. 228 F.3d at 980–81. Finally, in
Canada, although the plea agreement required the prosecutor
to recommend a particular sentence, she affirmatively failed
to do so, emphasized the defendant’s supervisory role in the
offense, and urged the judge to impose a “lengthy period of
incarceration.” 960 F.2d at 269–70.

     Unlike each of these cases, the government’s arguments
at sentencing were directed to the specific objective identified
in and permitted by the plea agreement. Accordingly, we
conclude there was no breach of the agreement.
              UNITED STATES V. MOSCHELLA                     9

IV.    Fed. R. Civ. P. 32(h)

     Defendant contends that the district court was required to
provide him with notice pursuant to Rule 32(h), Fed. R.
Crim. P., before imposing a sentence outside of the advisory
Sentencing Guidelines range. Before a sentencing court may
depart from the applicable guideline range on a ground not
identified for departure in the presentence report or in a
party’s prehearing submissions, Rule 32(h) requires the court
to give reasonable notice that it is contemplating such a
departure. Fed. R. Crim. P. 32(h). A district court is not
required under Rule 32(h) to give advance notice before
imposing a sentence outside of the advisory guideline range
if the sentence is the result of a variance. Irizarry v. United
States, 553 U.S. 708, 716 (2008).

    “A ‘departure’ is typically a change from the final
sentencing range computed by examining the provisions of
the Guidelines themselves.” United States v. Cruz-Perez,
567 F.3d 1142, 1146 (9th Cir. 2009). A “variance” normally
occurs when a judge imposes a sentence that is above or
below the properly calculated final sentencing range based on
the application of statutory factors enumerated in 18 U.S.C.
§ 3553(a). Id.

    Here, the district court made no mention of imposing a
departure provided for by the Sentencing Guidelines; to the
contrary, the court explicitly referenced the § 3553(a) factors
in imposing a higher sentence. As the district court’s
sentence was the result of a variance, we conclude that notice
under Rule 32(h) was not required. See United States v.
Rangel, 697 F.3d 795, 802-03 (9th Cir. 2012) (finding district
court imposed an upward variance where it relied on
§ 3553(a) factors).
10             UNITED STATES V. MOSCHELLA

V. Restitution

    Defendant next asserts that the district court plainly erred
by failing to sua sponte determine the sufficiency and
reliability of the statements proffered by the government in
support of restitution for newly-discovered victims. Section
3664(e), 18 U.S.C., requires that “[a]ny dispute as to the
proper amount or type of restitution . . . be resolved by the
court by the preponderance of the evidence.” (emphasis
added). Here, the court did not plainly err in awarding
restitution to Carr and Koch, because no dispute was
presented to the court to resolve. The record demonstrates
that the government disclosed the victims and their losses to
defense counsel prior to the sentencing hearing. At the
hearing, the government apprised the court of the newly-
discovered victims and their losses. Defendant did not object
to the additional losses being added to the total restitution
award. Therefore, upon review of the record, we conclude
that the Defendant has failed to establish that an error
occurred or, if such an error occurred, that it was sufficient to
undermine confidence in the outcome of the proceedings.
Ameline, 409 F.3d at 1078.

VI.     Special Condition No. 8

    Finally, Defendant challenges the imposition of Special
Condition of Supervised Release No. 8, which requires that
Defendant apply all monies received to his court-ordered
financial obligations. According to Defendant, 18 U.S.C.
§ 3664(n) authorizes the court to impose a condition of this
nature only during incarceration. We disagree.

    A district court has discretion to impose any condition set
forth in 18 U.S.C. § 3563(b) (including an order of
               UNITED STATES V. MOSCHELLA                     11

restitution) and any other condition it considers to be
appropriate so long as the condition: is reasonably related to
the factors set forth in §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), and
(a)(2)(D); involves no greater deprivation of liberty than is
necessary for the purposes set forth in §§ 3553(a)(2)(B),
(a)(2)(C) and (a)(2)(D); and is consistent with pertinent
policy statements issued by the Sentencing Commission.
18 U.S.C. § 3583(d). We find that the district court properly
exercised its discretion in imposing the condition to ensure
that the victims receive restitution should Defendant receive
any sort of unexpected financial gain.

    AFFIRMED.
