                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 17 2011

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




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-10102

              Plaintiff - Appellee,               D.C. No. 3:08-cr-00552-CRB-1

  v.
                                                  MEMORANDUM *
JASON RAMON SANDERS,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                        Argued and Submitted April 13, 2011
                               Pasadena, California

Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.

       Jason Sanders appeals the sentence imposed following his guilty plea to theft

within the special maritime and territorial jurisdiction of the United States, in

violation of 18 U.S.C. y 661, arising from his embezzlement of funds while serving

as Philanthropic Advisor to the Tides Foundation, a non-profit charitable



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
organization. We have jurisdiction pursuant to 28 U.S.C. y 1291 and 18 U.S.C.

y 3742. We affirm.1

      The district court did not abuse its discretion in applying a two-level

sentencing enhancement under United States Sentencing Guidelines

y 2B1.1(b)(8)(A). See United States v. Garro, 517 F.3d 1163, 1167 (9th Cir.

2008). That the money Sanders stole belonged to Tides is immaterial; Sanders

misrepresented that he was acting on behalf of the Tides Foundation, itself a

charitable organization, and that the stolen money would benefit other non-profit

organizations. See United States v. Treadwell, 593 F.3d 990, 1008 (9th Cir. 2010)

(finding application of enhancement appropriate where defendants' statements

'were intended to lead victims to infer the involvement of a charitable

organization.' (internal quotation marµs omitted)). Because Sanders's offense

'involved . . . a misrepresentation that [he] was acting on behalf of a charitable . . .

organization,' U.S.S.G. y 2B1.1(b)(8)(A), the two-level increase was appropriate.

      Nor was it an abuse of discretion to apply a two-level abuse of trust

enhancement under United States Sentencing Guidelines y 3B1.3, as the facts

demonstrate that Sanders held a position of trust characterized by professional



      1
       Because the facts are µnown to the parties, we repeat them only as
necessary to explain our decision.

                                            2
discretion, which position contributed in a significant way to facilitating the

commission of his offense. See id. y 3B1.3, cmt. 1. Although Sanders's position

may have been 'largely administrative,' he also exercised discretion in suggesting

ideas to donors who were interested in hearing from him about prospective grants

and used his discretion over the disbursement process to facilitate his crime.

      The district court's simultaneous imposition of the y 2B1.1(b)(8)(A) and

y 3B1.3 enhancements was not plain error. Although an authoritative application

note to y 2B1.1(b)(8)(A) provides that, '[i]f the conduct that forms the basis for an

enhancement under (b)(8)(A) is the only conduct that forms the basis for an

adjustment under y3B1.3 . . . do not apply that adjustment under y3B1.3,' id.

y 2B1.1(b)(8)(C), cmt. 7(E)(i), Sanders's conduct underlying these enhancements

did not fully overlap. After misrepresenting to a donor that he was acting on

behalf of a charitable foundation to gain access to Tides Foundation funds, he later

abused his position of trust with the Tides Foundation to arrange additional

disbursements. Each enhancement was justified in part by different, even if

related, conduct, and each enhancement aims at different harms to society. See,

e.g., United States v. Holt, 510 F. 3d 1007, 1011 (9th Cir. 2007) (holding that

double counting is not impermissible and is authorized by the sentencing

guidelines when each invocation of relied upon conduct 'serves a unique purpose


                                           3
under the Guidelines'). In the circumstances here it was proper to apply both

enhancements. See United States v. Smith, 516 F.3d 473, 477 (6th Cir. 2008)

(finding both enhancements appropriate where defendant 'misled the public by

soliciting donations to line her own purse [and] also tooµ advantage of her position

as head of the Red Cross chapter to further the fraud'); see also United States v.

Thorton, 511 F. 3d 1221, 1228 (9th Cir. 2008) (holding that imposition of two

enhancements was not impermissible double counting where they 'stemmed from

separate concerns.')

      Further, the district judge did not err by not recusing himself. A district

judge 'shall disqualify himself in any proceeding in which his impartiality might

reasonably be questioned.' 28 U.S.C. y 455(a). Because Sanders did not move for

recusal, we review the district court's decision for plain error. See United States v.

Spangle, 626 F.3d 488, 495 (9th Cir. 2010). 'Plain error will be found only if the

error was highly prejudicial and there was a high probability that the error

materially affected the verdict.' United States v. Anguiano, 873 F.2d 1314, 1319

(9th Cir. 1989) (internal quotation marµs omitted). Sanders did not demonstrate

any bias on the part of the district judge that materially affected Sanders's

sentence. The district judge repeatedly stated that his charitable contributions had




                                           4
no effect on his sentencing rationale, and the record does not demonstrate

otherwise.

      AFFIRMED.




                                         5
                                                                             FILED
United States v. Sanders, No. 10-10102                                        MAY 17 2011

                                                                         MOLLY C. DWYER, CLERK
Reinhardt, Circuit Judge, concurring in part and dissenting in part:       U.S . CO U RT OF AP PE A LS




         I dissent from the majority's conclusion that the U.S.S.G. y 2B1.1(b)(8)(A)

enhancement for misrepresentation of an action on behalf of a charity and y 3B1.3

enhancement for abuse of a position of trust may both be imposed in this case. The

application of both enhancements to the same underlying conduct is prohibited by

U.S.S.G. y 2B1.1., cmt. 7(E)(I). The district court violated the terms of this

authoritative application note by imposing both enhancements on the basis of the

same underlying conduct-Sanders's misrepresentations to a Tides Foundation

donor.

         The majority concludes otherwise, asserting that the imposition of the

y 3B1.3 abuse of trust enhancement was based not only on Sanders's

misrepresentations to a donor, but also on his submission of fraudulent invoices to

the Foundation. However, Sanders's submission of invoices, fraudulent or

otherwise, cannot support application of the abuse of trust enhancement, because

such submissions constitute the performance of an administrative function rather

than the exercise of the sort of 'professional or managerial discretion' that is a

prerequisite to the imposition of that enhancement. See United States v. Contreras,

581 F.3d 1163, 1166 (9th Cir. 2009). While the record indicates that Tides did not

adequately supervise Sanders's submission of invoices on behalf of On Point,
Contreras maµes clear that 'the element of discretion-not ease of detection-is the

'decisive factor' in the [abuse of trust] enhancement.' Id. The processing of

invoices is a paradigmatically ministerial tasµ, and there is scant evidence in the

record that Sanders enjoyed any discretion whatsoever regarding the subject, let

alone that he enjoyed a 'professional or managerial discretion' aµin to that of an

attorney who serves as a guardian and embezzles a client's funds, or of a banµ

executive who engages in a fraudulent loan scheme. See id. (quoting U.S.S.G.

y 3B1.3 n.1 (2005)).

      Given that the y 3B1.3 enhancement cannot be applied to a plainly

administrative tasµ such as Sanders's arrangement for disbursements, the

application of that enhancement in this case could rest only on Sanders's

misrepresentations to the Tides Foundation donor. That is precisely the same

conduct upon which the y 2B1.1(b)(8)(A) enhancement rests. An authoritative

application note to the Guidelines bars this result, and I would therefore vacate the

sentence in this case and remand to the district court for resentencing.

      I respectfully dissent with respect to this issue. I concur in the remainder of

the disposition.




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