                                                                                FILED
                            NOT FOR PUBLICATION                                 MAY 10 2012

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No. 11-50225

              Plaintiff - Appellee,               D.C. No. 2:09-cr-00717-ODW-1

  v.
                                                  MEMORANDUM *
ALBERT BRONT,

              Defendant - Appellant.



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

                              Submitted May 7, 2012 **
                                Pasadena, California

Before: PREGERSON, GRABER, and BERZON, Circuit Judges.

       Defendant Albert Bront appeals his 36-month sentence for one count of

subscribing to a false tax return, in violation of 26 U.S.C. § 7206(1), and two

counts of assisting or advising a false tax return, in violation of 26 U.S.C.




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
          The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
§ 7206(2). Reviewing "the district court’s interpretation of the Sentencing

Guidelines de novo, the district court’s application of the Sentencing Guidelines to

the facts of this case for abuse of discretion, and the district court’s factual findings

for clear error," United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005),

we affirm.

      1. Defendant first argues that the district court erroneously calculated the

amount of tax loss for sentencing purposes. Because the amount of tax loss is a

factual finding, we review this issue for clear error. United States v. Garro, 517

F.3d 1163, 1167 (9th Cir. 2008).

      No impermissible double counting occurred. The government incurred two

distinct tax losses as a result of Defendant’s acts. First, Defendant filed a

fraudulent 2004 tax return for Y.Z., resulting in a $10,966 refund. Defendant

admits that the filing of that return resulted in a tax loss to the government of

approximately $10,247. Second, Defendant stole the refund intended for Y.Z. by

diverting a $10,644 refund anticipation loan into his own bank account. He kept

the $10,644, but he failed to report it as income on his tax return for 2005.

Because Defendant under-reported his 2005 income by $10,644, that act resulted in

a second, distinct, tax loss to the government. Thus, although the two losses are

related, they are not the same.


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      With respect to R.B., Defendant fails to appreciate that the government did

indeed reduce R.B.’s tax liability by adjusting her taxable income to reflect the

amount of alimony actually received. Thus, in calculating the loss from

Defendant’s fraudulent preparation of R.B.’s 2005 tax return, the government

reduced R.B.’s taxable income by $9,500 to reflect that, in fact, she received only

$2,500 in alimony, not the $12,000 claimed on the return filed by Defendant. The

government similarly adjusted R.B.’s taxable income for tax years 2004, 2006, and

2007. Defendant’s argument therefore lacks any factual basis in the record.

      2. Defendant next claims that he should not have been subject to a two-level

enhancement, under U.S.S.G. § 2T1.1(b)(1), for failing to report the source of

income exceeding $10,000 from criminal activity. "‘Criminal activity’ means any

conduct constituting a criminal offense under federal, state, local, or foreign law."

U.S.S.G. § 2T1.1 cmt. n.3. Here, Defendant does not deny that he failed to report

$10,644 of income when he took Y.Z.’s refund, conduct that qualifies as criminal

under 26 U.S.C. § 7206(2). Cf. United States v. Ford, 989 F.2d 347, 350 (9th Cir.

1993) (noting that enhancement under § 2T1.1(b)(1) is improper where the

underlying criminal activity results only in "previously generated income being

unlawfully withheld from the taxing authority" and "do[es] not actually generate

any income").


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      Furthermore, subjecting Defendant to an enhancement under § 2T1.1(b)(1)

does not impermissibly double count his failure to report the $10,644 of income on

his 2005 tax return. There is "nothing wrong with double counting when it is

necessary to make the defendant’s sentence reflect the full extent of the

wrongfulness of his conduct." United States v. Cabaccang, 481 F.3d 1176, 1186

(9th Cir. 2007) (internal quotation marks omitted). The fact that Defendant’s

unreported income was derived from criminal activity was not "fully accounted

for" by the application of any other part of the Guidelines, including U.S.S.G.

§ 2T1.1(a)(1). Id. Accordingly, the district court did not abuse its discretion by

applying a two-level sentencing enhancement under U.S.S.G. § 2T1.1(b)(1).

      3. In addition, Defendant argues that the district court improperly imposed a

two-level enhancement under U.S.S.G. § 3B1.3, which applies "[i]f the defendant

abused a position of public or private trust, or used a special skill, in a manner that

significantly facilitated the commission or concealment of the offense."

Defendant’s opening brief asserts only that he did not abuse a position of trust, but

the district court did not impose the enhancement on that ground. Instead, it

imposed the enhancement because it found that Defendant’s special skill as an IRS

agent facilitated the commission of his offenses. Because the opening brief fails to

contest the ground for imposing the enhancement, the propriety of the


                                           4
enhancement is waived. See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir.

2005) ("Generally, an issue is waived when the appellant does not specifically and

distinctly argue the issue in his or her opening brief.").

      4. Finally, Defendant concedes that the district court properly applied the

obstruction of justice enhancement, because Defendant submitted false documents

in an attempt to obstruct his audit by the IRS. See United States v. Yip, 592 F.3d

1035, 1042 (9th Cir. 2010) ("Obstruction during an IRS audit justifies enhancing a

defendant's sentence for obstruction ‘during the course of the investigation.’

U.S.S.G. § 3C1.1 (2001).").

      AFFIRMED.




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