                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 09 2012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. 10-50605

              Plaintiff - Appellee,              D.C. No. 8:08-cr-00252-JVS-1

  v.
                                                 MEMORANDUM *
SPENCER TND DANG, AKA Thinh
Nguyen Duy Dang, AKA Mikey, AKA
Tinh Lin Nyah,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                       Argued and Submitted August 6, 2012
                               Pasadena, California

Before: REINHARDT, SILVERMAN, and NGUYEN, Circuit Judges.

       Defendant Spencer Dang appeals his sentence, imposed after he pled guilty

for bank fraud. At sentencing, the district court ordered restitution for $795,225.

Dang argues that this number should be reduced by $40,933 because, for that



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
amount, the government relied on bank records indicating check payments to

co-schemers when the government did not have photocopies of the checks in its

possession. Dang also contends that the district court erred in failing to waive

post-judgment interest, despite its finding that Dang is only able to pay a nominal

restitution amount due to his indigency. Dang never objected or requested a

waiver of the interest.

      We review a district court’s factual findings for clear error, its restitution

order for abuse of discretion, and the legality of the restitution order de novo.

United States v. Waknine, 543 F.3d 546, 555 (9th Cir. 2008). The government

must establish the proper amount of restitution by a preponderance of the evidence.

Id. at 556. A district court’s determination “that a particular item of evidence is

sufficiently reliable [to be considered at sentencing] is reviewed for abuse of

discretion.” United States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998).

      Here, the district court did not abuse its discretion in finding that the bank

records possessed sufficient indicia of reliability to support a restitution order. See

United States v. Ali, 620 F.3d 1062, 1066, 1072 (9th Cir. 2010); Waknine, 543 F.3d

at 555. In any event, Dang admitted the ultimate loss amount in his objections to

the Presentence Report. Therefore, the district court was within its discretion in




                                           2
finding that the evidence possessed sufficient indicia of reliability to support the

full loss amount of $795,225.

      Dang argues that the district court plainly erred in not waiving post-

judgment interest on unpaid restitution.1 To prevail under plain error review, there

must be: (1) an error; (2) that is plain (under then existing law); (3) that affects

substantial rights; and (4) that seriously “affects the fairness, integrity, or public

reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129, 135

(2009).

      Under 18 U.S.C. § 3612(f)(3), waiver of interest on unpaid restitution is

discretionary. Indigency is a necessary, but not in itself a sufficient, condition to

waiver. Therefore, while the district court could have waived post-judgment

interest once it found that Dang was unable to pay, the district court was not

required to do so, and Dang never requested a waiver.

      That the district court waived interest for Dang’s co-schemers is of no

moment. Ngai and Tran cooperated with the government. Dang did not, and “a

sentencing disparity based on cooperation is not unreasonable.” United States v.

Carter, 560 F.3d 1107, 1121 (9th Cir. 2009) (internal quotations omitted). No




      1
          Dang concedes that the district court’s failure to waive post-judgment
interest is reviewed for plain error due to his failure to raise the objection below.

                                            3
defendant was more culpable than Dang and Dang was the only one who did not

cooperate. There was no error, let alone plain error, with respect to the interest.

      AFFIRMED.




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