                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 25 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10256

              Plaintiff - Appellee,              D.C. No.
                                                 1:12-cr-00039-LJO-BAM-1
 v.

RANDY LEE WILKINS,                               MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Lawrence J. O'Neill, District Judge, Presiding

                      Argued and Submitted April 14, 2016*
                            San Francisco, California

Before: THOMAS, Chief Judge and REINHARDT and CHRISTEN, Circuit
Judges.

      Randy Wilkins appeals his conviction and sentence for conspiracy to

commit wire and bank fraud, wire fraud, and bank fraud in violation of 18 U.S.C.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§§ 1349, 1343, and 1344. We have jurisdiction under 28 U.S.C. § 1291, and we

reverse in part, affirm in part, and remand.

                                           I

      Because Wilkins elected to preemptively introduce his prior conviction on

direct examination, he waived any right to challenge the admission of his prior

conviction. See United States v. Decoud, 456 F.3d 996, 1011 (9th Cir. 2006).

                                          II

      The district court did not plainly err by ordering Wilkins to pay $736,965.40

in restitution as required by the Mandatory Victim Restitution Act of 1996

(“MVRA”). 18 U.S.C. §§ 3663A, 3664.

      The district court did not plainly err by calculating the amount of loss

attributable to Wilkins. “Nothing in the MVRA or our case law requires that the

district court consider certain factors or make findings of fact on the record.”

United States v. Peterson, 538 F.3d 1064, 1077 (9th Cir. 2008). The presentence

report’s loss calculation relied on a report prepared by the government’s

investigating agent that was included in the presentence report as Attachment A.

This report contained an itemized list of the properties and loss amounts for private

and institutional lenders. The court included a copy of the report in its judgment.

Thus, the record indicates that the court relied on this report and the corresponding


                                           2
testimony at trial in reaching its conclusion as to the amount of the restitution. See

id. at 1077–78. Moreover, Wilkins has not shown how the report’s calculation

without the benefit of Robers v. United States, 134 S. Ct. 1854 (2014) prejudiced

him.

       The district court also did not plainly err by failing to expressly specify that

Wilkins’s restitution liability is joint and several. Under 18 U.S.C. § 3664(h), a

court issuing a restitution order is permitted to apportion liability among

defendants according to culpability or capacity to pay, or, in the alternative, make

each defendant liable for the full amount of restitution. This provision “gives the

court the discretion either to make multiple defendants jointly and severally liable

for payment of the full restitution award, or to apportion the restitution order

among the various defendants.” S.Rep. No. 104–179, at 15 (1996), reprinted in

1996 U.S.C.C.A.N. 924, 928.

       In this case, the record reflects that the district court intended to impose joint

and several liability on Wilkins. The district court designated the liability as joint

and several on Wilkins’s co-conspirator’s restitution order. The district court also

made specific reference to Wilkins and his district court docket number on

Wilkins’s co-conspirator’s restitution order.

                                           III


                                            3
      The district court did not plainly err by ordering forfeiture of $736,965.40.

“The district court must impose criminal forfeiture in the amount of the ‘proceeds’

of the crime.” United States v. Newman, 659 F.3d 1235, 1239 (9th Cir. 2011). The

proceeds of a “fraudulently obtained loan equal the amount of the loan” and, in a

conspiracy, the proceeds “equal the total amount of the loans obtained by the

conspiracy as a whole.” Id. at 1244.

      Wilkins committed bank fraud and wire fraud when he obtained loans from

institutional lenders through falsified loan applications. Wilkins used these

fraudulently obtained loans to purchase properties that served as collateral for

obtaining additional loans from private lenders. These additional loans were not

disclosed to the institutional lenders or used as represented by Wilkins to private

lenders. Thus, the district court did not plainly err by determining that the

proceeds of Wilkins’s fraudulent activity included loans from private lenders.

                                          IV

      Wilkins’s sentence was not procedurally flawed or substantively

unreasonable. The district court did not err procedurally. It correctly calculated

the Sentencing Guidelines range; considered and explicitly referenced the 18

U.S.C. § 3553(a) sentencing factors on the record; and adequately explained the

sentence. See United States v. Carty, 520 F.3d 984, 991–93 (9th Cir. 2008). A


                                           4
district court’s explanation for a sentence will be “legally sufficient” if the “record

makes clear that the sentencing judge listened to each argument and considered the

supporting evidence.” United States v. Sandoval–Orellana, 714 F.3d 1174, 1181

(9th Cir.2013) (quoting Rita v. United States, 551 U.S. 338, 358 (2007)).

      The district court did not err substantively when imposing different

sentencing between Wilkins and his co-conspirator. See United States v. Chhun,

744 F.3d 1110, 1123–24 (9th Cir. 2014). The court explained that Wilkins’s co-

conspirator could be expected to receive a lesser sentence because he cooperated

with authorities in the investigation, did not engage in obstruction or perjury, and

suffered from major medical issues. The court further noted that Wilkins was the

leader of the conspiracy.

                                           V

      The district court plainly erred by imposing on Wilkins supervised release

conditions relating to alcohol use, drug and alcohol testing, and participation in a

substance abuse treatment program. There is no evidence that at the time of

sentencing Wilkins had an alcohol or substance abuse problem. See United States

v. Betts, 511 F.3d 872, 877–78 (9th Cir. 2007). Accordingly, we vacate the special

conditions five, six, and seven and remand to the district court with directions to

omit the conditions.


                                           5
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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