                                                                              FILED
                             NOT FOR PUBLICATION                              NOV 05 2012

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



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10372

                Plaintiff - Appellee,            D.C. No. 2:05-cr-00503-MCE-1

  v.
                                                 MEMORANDUM*
THOMAS M. KLASSY,

                Defendant - Appellant.


                     Appeal from the United States District Court
                        for the Eastern District of California
                    Morrison C. England, District Judge, Presiding

                       Argued and Submitted October 16, 2012
                             San Francisco, California

Before: B. FLETCHER,** D.W. NELSON, and MURGUIA, Circuit Judges.


       Thomas Klassy devised a criminal scheme to bilk his creditors by declaring

bankruptcy while simultaneously hiding assets that could be used to satisfy his


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Betty Binns Fletcher, Senior Circuit Judge for the Ninth
Circuit Court of Appeals, fully participated in the case and concurred in the
judgment prior to her death.
debts. His scheme discovered, Klassy was tried and convicted of money

laundering and various types of fraud. Klassy appeals his sentence, but not his

conviction, for the second time. A panel of this Court previously vacated Klassy’s

sentence and remanded for resentencing after concluding that the district court

calculated Klassy’s total offense level, 33, starting with a base offense level one

too high (seven, rather than six). See United States v. Klassy (“Klassy I”), 409 F.

App’x 169, 171 (9th Cir. 2011). This time, we do not find the district court clearly

erred in making the factual findings supporting its Guideline calculation—a total

offense level of 32—nor do we find that the district court abused its discretion in

applying the Guidelines to the facts that it found when sentencing Klassy to 121

months’ imprisonment. United States v. Dann, 652 F.3d 1160, 1175 (9th Cir.

2011).

      The question underlying this appeal is whether the district court concluded

properly that Klassy intended to cause more than $400,000 in losses to his

creditors, thereby justifying its application of a 14-level enhancement to Klassy’s

offense level. See U.S. Sentencing Guidelines Manual § 2B1.1(b)(1) (prescribing

offense level enhancements keyed to the amount of loss a defendant caused, or

sought to cause, by his fraudulent conduct). The district court was entitled to

calculate the losses Klassy intended to cause his creditors in either of two ways: as


                                          2
the value of the assets Klassy attempted to conceal from them, or as the total

amount of unsecured debt Klassy sought to discharge in bankruptcy. Klassy I, 409

F. App’x at 171–72 (citing United States v. Bussell, 504 F.3d 956, 962–63 (9th Cir.

2007)). Consequently, even if Klassy could, as he argues, prove at resentencing

that he concealed under $400,000 in assets, he nevertheless sought to discharge

more than $400,000 in unsecured debt, see In re Klassy, No. 03-26999 (Bankr.

E.D. Cal. July 16, 2003) (Doc. No. 10), and—as the district court noted—could

therefore be subject to the same 14-level enhancement. The district court did not

err in applying it.

       AFFIRMED.




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