                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 15 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30222

              Plaintiff - Appellee,              D.C. No. 9:11-cr-00057-DWM-1

  v.
                                                 MEMORANDUM*
DAN OAHEYOH TWO FEATHERS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                   Donald W. Molloy, District Judge, Presiding

                             Submitted May 10, 2013**
                                 Portland, Oregon

Before: KOZINSKI, Chief Judge, and BERZON and HURWITZ, Circuit Judges.

       Dan Two Feathers appeals the sentence imposed after he pleaded guilty to

conspiracy to commit investment fraud, in violation of 18 U.S.C. §§ 371 and 1343,

investment fraud, in violation of 18 U.S.C. § 1343, receipt of stolen money in


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
interstate commerce, in violation of 18 U.S.C. § 2315, and money laundering, in

violation of 18 U.S.C. § 1956. We have jurisdiction under 28 U.S.C. § 1291 and

affirm.


      1. Two Feathers first argues that the district court erred by determining the

amount of loss caused only by a preponderance of the evidence, rather than by

requiring clear and convincing evidence. See United States v. Armstead, 552 F.3d

769, 776 (9th Cir. 2008); U.S. Sentencing Guidelines Manual § 2B1.1(b)(1) (2012).

The argument fails because the district court did find that the loss amount had been

proved by clear and convincing evidence.


      2. The district court also did not err by including in the loss amount attributable

to Two Feathers $700,000 that two of his co-conspirators retained for personal use.

See U.S. Sentencing Guidelines Manual § 2B1.1(b)(1) (2012). “[I]n the case of a

jointly undertaken criminal activity . . . all reasonably foreseeable acts and omissions

of others in furtherance of the jointly undertaken criminal activity” shall be factored

in when calculating a defendant’s offense level. Id. § 1B1.3(a)(1)(B). And §

2B1.1(b)(1) is based on loss to the victims, not gain to the defendant. See Armstead,

552 F.3d at 778-79; U.S.S.G. § 2B1.1 app. n. 3(C). Two Feathers could have

reasonably foreseen the losses caused when the two co-conspirators solicited money


                                           2
as part of the investment scheme, whether or not he could have foreseen that his co-

conspirators would have kept the money rather than forwarding it as the scheme

contemplated. See United States v. Treadwell, 593 F.3d 990, 1004 (9th Cir. 2010).

      AFFIRMED.




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