                               NOT FOR PUBLICATION                          FILED
                        UNITED STATES COURT OF APPEALS                       DEC 2 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT


    UNITED STATES OF AMERICA,                       No.15-10353

                Plaintiff - Appellee,               D.C. No. 5:12-CR-00888-EJD

      v.
                                                    MEMORANDUM*
    JOHN GERINGER,

                Defendant - Appellant.

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

                        Argued and Submitted November 14, 2016
                                San Francisco, California

Before: REINHARDT and OWENS, Circuit Judges, and MENDOZA,** District
Judge.

           John Geringer pleaded guilty to mail and securities fraud charges based on

his management of an investment fund. Geringer appeals his 145-month sentence

and $50.3 million restitution and forfeiture orders. Because the district court


*
 This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
  The Honorable Salvador Mendoza, Jr., District Judge for the U.S. District Court
for the Eastern District of Washington, sitting by designation.
improperly calculated the loss caused by Geringer’s fraud for the purpose of

sentencing, we vacate Geringer’s sentence and the district court’s orders for

restitution and forfeiture, and we remand for resentencing and reconsideration of

the amounts Geringer owes in restitution and forfeiture.

      The Government argues that Geringer waived the right to appeal his

sentence. We review de novo the validity of an appeal waiver. United States v.

Medina-Carrasco, 815 F.3d 457, 461 (9th Cir. 2015). In the plea agreement,

Geringer expressly waived his right to appeal his sentence. But at the conclusion of

Geringer’s sentencing hearing, the district court stated: “Mr. Geringer, you do have

the right to appeal and your plea agreement indicates that right and your appeal

must be filed within 14 days of today’s date.” The government did not object.

Because a district court’s unambiguous statement that a defendant has the right to

appeal controls over inconsistent plea-agreement terms, United States v. Buchanan,

59 F.3d 914, 917 (9th Cir. 1995), Geringer’s right to appeal his sentence was

preserved.

      Geringer argues that the district court improperly refused to consider the

value of the investment fund’s remaining assets for the purpose of calculating loss

under Sentencing Guideline Section 2B1.1. We review a district court’s

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interpretation of the Sentencing Guidelines, including the method of calculating

loss, de novo. United States v. Christensen, 828 F.3d 763, 815 (9th Cir. 2015);

United States v. Santos, 527 F.3d 1003, 1006 (9th Cir. 2008). “A calculation of the

amount of loss is a factual finding reviewed for clear error.” United States v.

Stargell, 738 F.3d 1018, 1024 (9th Cir. 2013) (quoting United States v. Garro, 517

F.3d 1163, 1167 (9th Cir. 2008)). The district court, without making specific

factual findings, rejected Geringer’s request to reduce the amount of loss by the

value of the fund’s assets. The court concluded that “those sums . . . are more

appropriately placed and legally placed in the restitution column . . . . I don’t think

they legally apply to the current state of the case.” This is incorrect. A victim’s loss

should be offset by the victim’s benefit for the purpose of calculating loss under

the Sentencing Guidelines. See United States v. W. Coast Aluminum Heat Treating

Co., 265 F.3d 986, 992 (9th Cir. 2001). Under this principle, the district court was

obligated to determine the actual value, if any, of the fund, and to deduct that value

from the amount of loss. See United States v. Leonard, 529 F.3d 83, 93 (9th Cir.

2008) (holding that the district court erred by failing to determine and deduct the

actual value of securities received by fraud victims). The district court erred by

failing to do so.

                                           3
      Because the district court may have relied on its improper calculation of loss

under the Sentencing Guidelines in determining the amounts of forfeiture and

restitution and because the court did not make independent findings to support

those determinations, the district court must also reconsider its determinations of

those amounts on remand.

      Geringer also urges us to retroactively apply Amendment 791 to the

Sentencing Guidelines, which became effective on November 1, 2015 and amends

Section 2B1.1’s loss table to account for inflation. U.S.S.G., App. C. Supp. at 102–

10. This court “consider[s] three factors when assessing whether an amendment to

the Guidelines applies retroactively: (1) whether the amendment is listed as a

retroactive amendment in U.S.S.G. § 1B1.10(c); (2) whether the amendment is

characterized as a clarification; and (3) whether the amendment resolves a circuit

split.” United States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir. 2016) (citing

United States v. Christensen, 598 F.3d 1201, 1205 (9th. Cir. 2010)). None of these

factors support applying Amendment 791 retroactively here. The amendment is not

listed under U.S.S.G. § 1B1.10(c), the Sentencing Commission expressly

characterized the change as a “substantive amendment,” U.S.S.G., App. C. Supp.

at 10, and the amendment does not resolve any circuit split. Accordingly, the

                                          4
revised loss tables do not apply retroactively in this case.

      Finally, Geringer asks us to reassign this case to a different district court

judge on remand. Because Geringer has not demonstrated that the “rare and

extraordinary circumstances” necessary to justify reassignment are present here,

we decline to do so. See United Nat’l Ins. Co. v. R&D Latex Corp., 242 F.3d 1102,

1118 (9th Cir. 2001).

      Accordingly, we VACATE Geringer’s sentence and the district court’s

orders for restitution and forfeiture, and REMAND to the district court for

resentencing and orders of restitution and forfeiture consistent with this decision.




                                           5
                                                                           FILED
United States v. Geringer, No. 15-10353
                                                                           DEC 02 2016
OWENS, Circuit Judge, concurring:                                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


      I concur with the understanding that on remand, the district court ultimately

may impose the same sentence, restitution, and forfeiture so long as it provides a

more robust explanation as to how it calculated these amounts.
