                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 30 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    16-10153

              Plaintiff-Appellee,                D.C. No.
                                                 3:12-cr-00278-EMC-1
 v.

JAMES MURRAY, AKA Jim Murray,                    MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward M. Chen, District Judge, Presiding

                      Argued and Submitted October 10, 2018
                            San Francisco, California

Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges.

      Defendant-Appellant James Murray was convicted of sixteen counts of wire

fraud, four counts of money laundering, two counts of aggravated identity theft,

and one count of contempt of court. Murray was sentenced to 180 months in

prison, three years of supervised release subject to various conditions, and $3.4



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
million in restitution payments. Murray raises numerous issues on appeal. He

challenges the legal sufficiency of one of his convictions, the calculation of his

criminal history category, the imposition of two different sentencing

enhancements, two purported errors in the court’s calculation of the amount of

loss, two purported errors in the court’s order of restitution, and the legality of two

of the special conditions of supervised release. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742. We vacate Murray’s conviction for

aggravated identity theft in Count 21, but affirm the district court on all other

issues.

      First, Murray challenges the legal sufficiency of his conviction for

aggravated identity theft in Count 21. We review de novo a district court’s

determination that there is sufficient evidence to support a jury’s verdict. United

States v. Aldana, 878 F.3d 877, 880 (9th Cir. 2017). A conviction for aggravated

identity theft under 18 U.S.C. § 1028A(a)(1) requires that the fraudulent use of

another person’s identification occur “during and in relation to” certain predicate

felonies. In Murray’s case, there was insufficient evidence that Murray’s use of his

ex-wife’s identification occurred “during and in relation to” the four wire fraud

convictions charged as predicate felonies. We thus vacate Murray’s conviction for

aggravated identify theft in Count 21.


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      Second, Murray challenges the district court’s imposition of an obstruction

of justice enhancement under United States Sentencing Guidelines (USSG)

§ 3C1.1. We review the district court’s factual findings for purposes of an

obstruction of justice enhancement for clear error. United States v. Castro-Ponce,

770 F.3d 819, 821–22 (9th Cir. 2014). We review de novo “the district court’s

characterization of a defendant’s conduct as obstruction of justice within the

meaning of [USSG] § 3C1.1.” Id. at 822. The obstruction of justice enhancement

should be imposed if the defendant is “convicted of a separate count for”

obstructive conduct. USSG § 3C1.1 cmt. n.5. Less than two weeks after being

released on bail following his second arrest, Murray snuck into a conference room

at his lawyer’s firm and used a firm computer to access the Internet, smuggled a

tablet into the conference room and hid it in the ceiling, and again attempted to

contact his international finance contacts. As a result of these activities in violation

of his second bond, Murray was indicted and ultimately convicted of a separate

count of contempt of court. The imposition of the obstruction of justice

enhancement was not in error.

      Third, Murray challenges the district court’s imposition of a two-level

enhancement for use of a special skill under USSG § 3B1.3. We review the district

court’s interpretation of the Sentencing Guidelines de novo and its “application of


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the Sentencing Guidelines to the facts of a given case . . . for abuse of discretion.”

United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.) (en banc), cert.

denied, 138 S. Ct. 229 (2017). Murray held a Series 7 license and had years of

experience in the financial industry. These “special skills” “significantly

facilitated the commission” of his underlying offenses, USSG § 3B1.3 cmt. n.2,

because they assisted his creation of the fund and solicitation of investments. It

was not an abuse of discretion to impose the special skill enhancement.

      Fourth, Murray claims that the district court should not have included his

1998 misdemeanor conviction in the calculation of his criminal history category.

We review the district court’s factual findings for clear error and its application of

the Sentencing Guidelines to the facts for abuse of discretion. United States v.

Mohamed, 459 F.3d 979, 985 (9th Cir. 2006). A court cannot include in the

defendant’s criminal history a prior sentence of less than thirteen months that was

imposed more than ten years before the commencement of the instant crime.

USSG § 4A1.2(e). Because Murray made a specific factual objection to the PSR’s

determination of the date on which his wire fraud violations commenced, the

district court was obligated by Fed. R. Crim. P. 32 to rule on the dispute.

Nevertheless, any error that may have occurred in the district court’s factual

determination, or lack thereof, was harmless because the district court ultimately


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used the correct criminal history category to determine Murray’s sentence. See

United States v. Cruz-Gramajo, 570 F.3d 1162, 1174 (9th Cir. 2009) (holding that

a potential error resulting in the same criminal history category, and thus the same

Sentencing Guidelines range, was harmless).

      Fifth, Murray claims that the district court erred in refusing to offset the total

loss calculation by the amount of assets seized by the government. In United

States v. West Coast Aluminum Heat Treating Co., 265 F.3d 986, 992 (9th Cir.

2001), we held “that the victim’s loss should be offset by the victim’s benefit.” In

United States v. Bright, 353 F.3d 1114, 1119 (9th Cir. 2004), however, we refused

to offset losses where the government seized money from the defendant’s home

and company bank account. Here, the district court explained that “[t]here was no

real security interest” in the MNT fund because investors did not receive

“something sort of quid pro quo . . . for instance, stock.” Instead, the court

commented that “Mr. Murray had complete control over the assets” and “refuse[d]

any kind of payment or redemption when many of the shareholders or investors

asked for it.” Regardless of whether this was a question of fact or a mixed

question of law and fact, we find no error in the district court’s conclusion that the

victims lacked a security interest in these funds.




                                           5
      Sixth, Murray contends that the district court erred by including loss

attributable to Moneris Solutions (Moneris) in the calculation of total loss. Any

error that may have occurred here was harmless.1 The district court calculated the

total loss as approximately $3.4 million. Subtracting the $279,785.37 of losses

sustained by Moneris from this total loss would result in an adjusted loss of

approximately $3.1 million. Under USSG § 2B1.1(b)(1)(I), both a $3.4 million

total loss and a $3.1 million total loss result in the same 16-level enhancement.

      Seventh, Murray claims that the district court erred by awarding victim

restitution to Lisa Brigulio and Karyn McKay. “We review de novo the legality of

a restitution order.” United States v. Fu Sheng Kuo, 620 F.3d 1158, 1162 (9th Cir.

2010) (quoting United States v. Peterson, 538 F.3d 1064, 1074 (9th Cir. 2008)).

“We review the district court’s underlying factual findings for clear error.” Id.

“[W]hen the crime of conviction includes a scheme, conspiracy, or pattern of

criminal activity as an element of the offense, . . . the restitution order [may]

include acts of related conduct for which the defendant was not convicted.” United

States v. Brock-Davis, 504 F.3d 991, 999 (9th Cir. 2007) (alterations in original)

(citation omitted). It was not error, therefore, for the court to allow restitution for


      1
        The government argues that Murray’s objection to the inclusion of
Moneris’ losses was waived before the district court. Because we find that any
potential error was harmless, we decline to reach the issue of waiver.
                                            6
victims whose losses resulted from misrepresentations not charged directly in the

indictment. Whether or not Brigulio and McKay relied on the misrepresentations

they allegedly heard is a factual question for which the trial court receives

deference. The disputes Murray raises do not rise to the level of “clear error.”

      Finally, Murray challenges the district court’s imposition of special

conditions of supervised release Nos. 8 and 10. We review de novo whether a

condition of supervised release exceeds a permissible statutory penalty or violates

the Constitution. United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009).

Under 18 U.S.C. § 3583(d), a sentencing court may order conditions of supervised

release that (1) are reasonably related to the nature and circumstances of the

offense and the history and characteristics of the defendant, the need to adequately

deter criminal conduct, to protect the public from further crimes of the defendant,

and to provide the defendant with needed services; (2) involve no greater

deprivation of liberty than is reasonably necessary to achieve these purposes; and

(3) are consistent with any pertinent Sentencing Commission policy statements.

Here, both conditions are reasonably related to the nature of the offense and the

need to protect victims from further fraud. Moreover, both conditions involve no

greater deprivation of liberty than is reasonably necessary. Condition No. 8 does

not prohibit Murray from interacting with anyone beyond a limited class of former


                                           7
victims, and condition No. 10 only prohibits Murray from using the Internet to

access information about investments, trading, and financial advice. Under the

circumstances here, these conditions do not materially infringe any especially

important liberty interests that would trigger additional procedural safeguards.

      Accordingly, Murray’s conviction for aggravated identity theft in Count 21

is VACATED and this case is REMANDED to the district court for resentencing.

The district court is AFFIRMED on all other issues.




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