                                                                          FILED
                           NOT FOR PUBLICATION                             JUN 11 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                       No. 09-30176

              Plaintiff - Appellee,             D.C. No. 3:07-cr-00430-MO-1
                                                District of Oregon,
  v.                                            Portland

STEVEN EDWARD MILLER,                           ORDER

              Defendant - Appellant.



Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.

       The memorandum disposition filed on February 25, 2010, is hereby

amended. The amended memorandum is attached hereto. With this amendment,

the panel has unanimously voted to deny the petition for rehearing. Judges Berzon

and Nelson have voted to deny the suggestion for rehearing en banc, and Judge

Farris so recommends.

       The full court has been advised of the suggestion for rehearing en banc, and

no active judge has requested a vote on whether to rehear the matter en banc. Fed.

R. App. P. 35.
       The petition for rehearing is DENIED and the suggestion for rehearing en

banc is REJECTED. No further petitions for rehearing or rehearing en banc may

be filed.
                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JUN 11 2010

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

UNITED STATES OF AMERICA,                        No. 09s30176

             Plaintiffs s Appellee,              D.C. No. Cr 07s430sMWM

  v.                                             AMENDED
                                                 MEMORANDUM *
STEVEN EDWARD MILLER,

             Defendant s Appellant.


                  Appeal from the United States District Court
                           for the District of Oregon
                  Michael W. Mosman, District Judge, Presiding

                     Argued and Submitted December 8, 2009
                                Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.

       Between August 2004 and November 2006, the defendant Steven Miller

engaged in a complex scheme to defraud Cisco Systems, Inc. Miller pled guilty to

one count of mail fraud and one count of money laundering without a plea

agreement, and did not plead guilty to ten other counts.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36s3.
      We review a district court’s methodology for calculating loss under the

Sentencing Guidelines de novo. United States v. Hardy, 289 F.3d 608, 613 (9th

Cir. 2002). We look to the fair market value of the property and in particular the

value “at which th[e] victim offered the goods for sale.” Id. (internal quotation

omitted). This valuation method requires us to look at the market that the victim

participated in. Cisco does not participate and compete in the gray market. It does

not sell replacement parts and it does not do direct sales through the internet.

Cisco’s market is solely authorized distributors and large direct buyers, and

Cisco’s product is inclusive of the warranty and service. Cisco provides

replacement parts as part of its warranty instead of selling them. The district

court’s loss calculation was therefore proper.

      We review for clear error a district court’s refusal (after the government

declines to move for the extra reduction) to grant an additional oneslevel

downward adjustment for acceptance of responsibility. United States v. Johnson,

581 F.3d 994, 1001 (9th Cir. 2009). The government has discretion on whether to

move for the extra reduction so long as its refusal is not arbitrary or motivated by

an unconstitutional factor. Id. We have conclusively determined that a defendant

who fails to waive her right to appeal justifies the failure to request the reduction.

Id. at 1002; see also United States v. MedinasBeltran, 542 F.3d 729, 731 (9th Cir.

                                           2
2008). Here, although Miller pleaded guilty to two counts of the indictment and

avoided a trial on the substantive offenses, he preserved his right to object to the

government’s loss figure and failed to waive his right to appeal any sentencings

related issues, even after the plea agreement had fallen apart.1 Thus, the district

court did not err.

      United States v. Watt, 910 F.2d 587 (9th Cir. 1990), is inapplicable. It

applied to the twoslevel acceptance of responsibility reduction that is mandatory if

the defendant enters a timely guilty plea. The decision here is discretionary and

the government can properly ask for various conditions that ease its resource

burdens in exchange for the additional onespoint reduction. See Johnson, 581

F.3d at 1006s07.

      We review a district court’s sentencing decisions under the abuse of

discretion standard. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009).

The district court offered a sufficient explanation for giving a sentence that was

higher than similar defendants who had committed fraud against Cisco. See United

States v. Gordon, 393 F.3d 1044 (9th Cir. 2004). The other defendants had no

criminal history whereas Miller had a criminal history level of three. This was

      1
        Even after the government dropped the loss figure to $3,713,107, Miller
continued to contest it, rather than offering at that juncture to agree to the loss
figure in return for a motion under y 3E1.1(b).

                                           3
sufficient to justify the sentence.

      AFFIRMED.




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