                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 14 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    17-50211

              Plaintiff-Appellee,                D.C. No.
                                                 2:16-cr-00256-PSG-1
 v.

DEBRA CHRISTINE CLARK,                           MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                     Argued and Submitted December 4, 2018
                              Pasadena, California

Before: O’SCANNLAIN and IKUTA, Circuit Judges, and KENNELLY,** District
Judge.

      Defendant Debra Clark appeals the order of restitution entered following her

guilty plea. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
      We review Clark’s challenge to the restitution order for plain error. See

United States v. Yijun Zhou, 838 F.3d 1007, 1010 (9th Cir. 2016). Clark is not

entitled to de novo review of her claim even though she objected to the amount of

restitution at sentencing, because her argument on appeal is materially different

than the argument made to the district court. See United States v. Wahid, 614 F.3d

1009, 1013 (9th Cir. 2010); see also Fed. R. Crim. P. 52(b).

      The district court erred in awarding $112,996 in restitution because a court

may award restitution under the Mandatory Victims Restitution Act “only for loss

that flows directly from the specific conduct that is the basis of the offense of

conviction.” United States v. May, 706 F.3d 1209, 1214 (9th Cir. 2013) (quoting

United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 927 (9th Cir. 2001))

(internal quotation marks omitted). Here, the specific conduct charged in the

indictment, which was the basis of Clark’s guilty plea, gave rise to losses totaling

only $40,036. The district court’s award of more than $40,036 in restitution was

therefore an error, and the error was plain because it was “clear or obvious under

current law.” United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003).

Further, the district court’s error affected Clark’s substantial rights because she has

shown “a reasonable probability that, but for the error,” the amount of restitution

ordered would have been different. United States v. Dominguez Benitez, 542 U.S.


                                           2
74, 76 (2004). Lastly, the error “seriously affect[ed] the fairness, integrity, or

public reputation of [the] judicial proceedings,” because the district court lacked

the legal authority to order restitution in an amount exceeding the losses caused by

the charges specifically pleaded in the indictment. See United States v. Fu Sheng

Kuo, 620 F.3d 1158, 1164–66 (9th Cir. 2010); see also United States v. Ameline,

409 F.3d 1073, 1102 (9th Cir. 2005) (en banc) (holding that imposition of an

illegal sentence is “a miscarriage of justice” that satisfies the fourth element of the

plain error test). We therefore exercise our discretion to correct a forfeited error,

United States v. Olano, 507 U.S. 725, 732 (1993), and we reverse the district

court’s ruling.

REVERSED.




                                            3
                                                                     FILED
United States v. Clark, No. 17-50211                                  JAN 14 2019
                                                                  MOLLY C. DWYER, CLERK
                                                                   U.S. COURT OF APPEALS
IKUTA, Circuit Judge, dissenting:

      In a statement submitted to the district court before her guilty plea, at her

change of plea hearing, and at her sentencing hearing, Debra Clark stipulated that

she unlawfully obtained $112,996 from the Social Security Administration. On

appeal, she does not dispute this fact.

      Because the specific conduct charged in the indictment gave rise to losses

totaling only $40,036, the district court erred in ordering Clark to pay $112,996 in

restitution. See United States v. May, 706 F.3d 1209, 1214 (9th Cir. 2013).

However, a court’s imposition of a sentence that is inconsistent with the indictment

is not necessarily a plain error if the sentence was based on evidence that “was

overwhelming and essentially uncontroverted.” United States v. Cotton, 535 U.S.

625, 632-33 (2002) (internal quotation marks omitted). Under those

circumstances, the error does not “seriously affect the fairness, integrity, or public

reputation of judicial proceedings.” Rather, the Supreme Court has told us, “[t]he

real threat” to the “fairness, integrity, and public reputation of judicial

proceedings” would be if the defendants, “despite the overwhelming and

uncontroverted evidence,” were to receive a lesser sentence “because of an error

that was never objected to at trial.” Id. at 634.

      Because “overwhelming and uncontroverted evidence” supports the district
court’s restitution order here, I would hold that the district court did not plainly err,

and I would affirm the district court. Therefore, I dissent.
