                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 14 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10228

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00193-KJD-RJJ-1

  v.
                                                 MEMORANDUM*
RICHARD W. CHARETTE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                            Submitted March 12, 2012**
                             San Francisco, California

Before: WALLACE, D. W. NELSON, and BEA, Circuit Judges.

       Richard W. Charette appeals from a 33-month term of imprisonment

imposed pursuant to his guilty plea to conspiracy under 18 U.S.C. § 371 to disclose

individually identifiable health information in violation of 42 U.S.C. § 1320d-6.


        *
             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).
We review factual findings with respect to calculation of the victims’ monetary

loss for clear error, United States v. Lawrence, 189 F.3d 838, 844 (9th Cir. 1999),

and the reasonableness of the sentence for an abuse of discretion, United States v.

Vasquez-Landaver, 527 F.3d 798, 805 (9th Cir. 2008). We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

      The district court did not clearly err in calculating $121,812 of “actual loss”

under United States Sentencing Guidelines § 2B1.1. The hospital’s expenditures to

provide credit report service contracts to the people whose information was

potentially disclosed by Charette’s crime was a “reasonably foreseeable pecuniary

harm that resulted from the offense.” U.S.S.G. § 2B1.1 cmt. n. 3(A)(i); see also

United States v. Pham, 545 F.3d 712, 721 (9th Cir. 2008) (victims’ expenses to

mitigate effects of a crime may constitute actual loss).

      The district court did not abuse its discretion in sentencing Charette to 33

months in prison, which was at the lowest point of the applicable Guidelines range.

Charette was not similarly situated to his co-conspirator because Charette was a

leader of the criminal activity and did not cooperate with the government. See

United States v. Carter, 560 F.3d 1107, 1121 (9th Cir. 2009). Charette also does

not point to any unusual circumstances that would have required the district court

to impose a below-Guidelines sentence. See id. at 1120.

      AFFIRMED.

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