                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 14 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30332

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00330-RSM-1

  v.
                                                 MEMORANDUM*
TODD ALLEN HOSS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                              Submitted July 8, 2014**
                                Seattle, Washington

Before: ALARCÓN, TASHIMA, and MURGUIA, Circuit Judges.

       Todd A. Hoss appeals from his ninety-six-month sentence that the district

court imposed based on his conviction on five counts of mail fraud in violation of




        *
             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).
18 U.S.C. § 1341. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28

U.S.C. § 1291. We affirm.

      First, the district court did not clearly err in reasonably estimating, as part of

the total loss in this case, that the HMI 1, LLC investors’ net loss amounted to

approximately $1.6 million and that Hoss was not due any credit against this loss

amount for the sale of the Bellevue, Washington property. See United States v.

Stargell, 738 F.3d 1018, 1024 (9th Cir. 2013) (“A calculation of the amount of loss

is a factual finding reviewed for clear error.” (citation and internal quotation marks

omitted)); U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n.3(C) (2011) (stating

a “court need only make a reasonable estimate of the loss” that “shall be based on

available information”).

      The trial evidence established that, before the sale of the Bellevue property,

the HMI 1, LLC investors had lost approximately $1.6 million. The trial evidence

also established that, after HMI 1, LLC owned the Believe property, investor

Greenway spent approximately $1.6 million of his own money in order to sell the

property. Investor Greenway’s October 1, 2012 post-trial email stated that the

property sold for $1.85 million, less closing costs of $107,000, for a net sale of

approximately $1,743,000. Greenway’s post-trial email also indicated that his

expenses since trial had increased to over $1.7 million. As a result, the proceeds


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from the sale of the Bellevue property served to reimburse Greenway individually,

but there was no surplus from the sale to reduce the HMI 1, LLC investors’ loss.

      Second, the district court did not plainly err by not holding an evidentiary

hearing sua sponte on the amount of loss attributable to HMI 1, LLC. See United

States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001) (holding where a defendant

“fail[s] to request an evidentiary hearing in district court” we review the court’s

decision not to hold an evidentiary hearing sua sponte pursuant to Rule 32 of the

Federal Rules of Criminal Procedure “for plain error”).

      In his opening brief, Hoss asserts that he “argued for a hearing to assess the

loss . . . but the district court never addressed the request.” Defendant-Appellant’s

Opening Br. at 18. In his reply brief, however, Hoss concedes that he in fact did

not request an evidentiary hearing. Defendant-Appellant’s Reply Br. at 2 (“At the

sentencing hearing, Mr. Hoss did not accept [HMI 1, LLC loss] numbers at face

value and assumed that the court would provide an evidentiary hearing in which he

could dispute the figures . . . .”). The record also does not support Hoss’s

argument that he requested an evidentiary hearing. Additionally, as described

above, the trial evidence, which Hoss does not dispute, established that the

proceeds from the sale of the Bellevue property were insufficient to cover both

investor Greenway’s expenses and the HMI 1, LLC investors’ loss. Hoss does not


                                           3
raise any challenge to the Government’s post-trial submissions that, if valid, would

materially affect his sentence.

      AFFIRMED.




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