                                                                           FILED
                           NOT FOR PUBLICATION                             JUN 19 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50418

              Plaintiff - Appellee,              D.C. No. 2:10-cr-01343-VAP-1

  v.
                                                 MEMORANDUM*
HENRIK SARDARIANI,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                       Argued and Submitted January 7, 2014
                               Pasadena, California

Before: REINHARDT and CLIFTON, Circuit Judges, and DORSEY, District
Judge.**

       Defendant Henrik Sardariani appeals his sentence of 120 months and

$100,000 fine imposed for a guilty plea conviction for conspiring to commit wire


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jennifer A. Dorsey, District Judge for the District of
Nevada, sitting by designation.
fraud, aggravated identity theft, and transactional money laundering (18 U.S.C.

§ 371); wire fraud (18 U.S.C. § 1343); and engaging in unlawful monetary

transactions (18 U.S.C. § 1957). We affirm the custodial portion of the sentence

but vacate the fine.1

      Defendant argues that the court improperly applied a four-level adjustment

for his role in organizing criminal activity involving five or more participants. See

U.S.S.G. § 3B1.1(a). Specifically, he argues that the evidence presented prior to

sentencing was insufficient to support the court’s findings regarding the fifth

participant, and the FBI report proffered as evidence at sentencing was

inadmissible because it was not sufficiently reliable and consisted of hearsay. See

United States v. Alvarado-Martinez, 556 F.3d 732, 735 (9th Cir. 2009) (quoting

U.S.S.G. § 6A1.3(a)) (at sentencing, “a district court may consider any relevant

information, ‘provided that the information has sufficient indicia of reliability to

support its probable accuracy.’”); Fed. R. Evid. 802.

       This case is distinguishable from the case cited by Defendant for the

proposition that the FBI report is not sufficiently reliable for the court to consider.

      1
       This memorandum disposition is filed together with an opinion in the same
case. The opinion holds that a notary seal is an “authentication feature” under 18
U.S.C. § 1028, and as such, the district court was correct in applying an
enhancement for use of an authentication feature under U.S.S.G.
§ 2B1.1(b)(11)(A)(ii) (formerly § 2B1.1(b)(10)(B)(ii)).

                                           2
An FBI report detailing an interview with a named victim of the fraudulent scheme

is far from the uncorroborated and contradictory statement made by an unidentified

witness that the Second Circuit rejected in United States v. Chunza-Plazas, 45 F.3d

51, 58 (2d Cir. 1995). It is not error for a sentencing court to conclude that an FBI

report such as the one proffered here has “sufficient indica of reliability” to be

taken into account at sentencing. See e.g., United States v. Burns, 894 F.2d 334,

336–37 (9th Cir. 1990) (investigative report prepared by Secret Service agents was

sufficiently reliable to be admissible at sentencing). Further, it is irrelevant that the

FBI report contains hearsay. See U.S.S.G. § 6A1.3(a) (“court may consider

relevant information without regard to its admissibility under the rules of

evidence”); Fed. R. Evid. 1101(d)(3) (Federal Rules of Evidence do not apply in

sentencing proceedings).

      In light of the evidence in the FBI report concerning the fifth participant, this

Court is not “left with the definite and firm conviction that a mistake has been

committed.” United States v. MacDonald, 339 F.3d 1080, 1082 (9th Cir. 2003)

(describing the standard for clear error) (internal quotation marks and citation

omitted); United States v. Treadwell, 593 F.3d 990, 999 (9th Cir. 2010) (factual

findings are reviewed for clear error). We affirm the district court’s application of

the role enhancement and the term of incarceration set in the sentence.


                                            3
      Defendant argues that the district court clearly erred in imposing a fine

because the information in the presentence report established that Defendant had

insufficient assets and earning potential to pay it. See United States v. Marin-

Cuevas, 147 F.3d 889, 895 (9th Cir. 1998) (a probation officer’s report is sufficient

evidence for purposes of sentencing). The Government concedes this point and

agrees that the fine should be vacated because its imposition could hinder payment

of the restitution. See 18 U.S.C. § 3572(b) (“the court shall impose a fine or other

monetary penalty only to the extent that such fine will not impair the ability of the

defendant to make restitution”). We agree that the fine should be vacated.

      AFFIRMED in part, VACATED in part, and REMANDED.




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