                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              FEB 27 2018
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.    15-50435

              Plaintiff-Appellee,                 D.C. No.
                                                  5:12-cr-00065-VAP-2
 v.

CHRISTOPHER PAUL GEORGE,                          MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Virginia A. Phillips, Chief Judge, Presiding

                      Argued and Submitted February 6, 2018
                               Pasadena, California

Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.

      George appeals his conviction and sentence for one count of mail fraud

affecting a financial institution, three counts of wire fraud, two counts of wire

fraud affecting a financial institution, and one count of conspiracy to commit mail

and wire fraud. 18 U.S.C. §§ 1341, 1343, 1349. For the reasons set forth below, we



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
vacate his sentence and remand for resentencing. We affirm George’s convictions

on all counts.

      1. The district court imposed a two-level enhancement because it found that

“the offense involved [ ] a misrepresentation that the defendant was acting on

behalf of . . . a government agency.” U.S. Sentencing Guidelines Manual

(“USSG”) § 2B1.1(b)(9)(A). The district court imposed this enhancement based on

“references” made to victims about “various government programs or agencies,

sometimes HUD, sometimes something that President Obama had set up.” Under

the binding interpretation of the Guideline found in Application Note 8 of the

commentary, however, the enhancement is appropriate only if “the defendant

represented that the defendant was acting to obtain a benefit on behalf of . . . a

government agency . . . when, in fact, the defendant intended to divert all or part of

that benefit (e.g., for the defendant’s personal gain).” USSG § 2B1.1 cmt. n.8

(emphasis added). The government does not suggest that George or any co-

schemer made such a representation. Rather, the government asks us to rely on an

alternative interpretation found in the background commentary. However, the

background commentary, unlike the application notes, does not provide the

controlling interpretation of the Guideline. See Stinson v. United States, 508 U.S.




                                           2
36, 38, 41, 43 (1993). The district court therefore erred in imposing the

enhancement.

      2. The record is not sufficiently well-developed to review George’s

ineffective assistance of counsel claim on direct review and we therefore defer any

review of this claim to a motion under 28 U.S.C. § 2255. See United States v.

Jeronimo, 398 F.3d 1149, 1155-56 (9th Cir. 2005), overruled on other grounds,

United States v. Jacobo Castillo, 496 F.3d 947 (9th Cir. 2007) (en banc). However,

we urge the district court to take the change in the sentencing guidelines into

consideration when determining a reasonable sentence under 18 U.S.C. § 3553(a).

      3. The district court did not abuse its discretion in applying an enhancement

under USSG § 3A1.1(b)(1) based on the fact that the victims were on the brink of

foreclosure. Financial distress is not excluded as a basis for a finding that the

victims are unusually vulnerable. While we do not find error, we remind the

district court when conducting a new sentencing on remand that the enhancement

requires comparison to the “typical victim of the offense of conviction,” not to

“members of the general population.” United States v. Nielsen, 694 F.3d 1032,

1034-35 (9th Cir. 2012) (quotation marks omitted).

      4. Any error in instructing the jury that fraud “affects a financial institution”

if it leads to “any new or increased risk of loss” (emphasis added) was harmless


                                           3
beyond a reasonable doubt. Cf. United States v. Stargell, 738 F.3d 1018, 1022-23

(9th Cir. 2013).

          5. Buck’s and DiRoberto’s out-of-court statements were admitted into

evidence without limiting instructions, so they were admitted against all defendants

regardless of the contexts in which the government referred to them in argument.

This was obvious error. However, the error did not affect George’s substantial

rights.

          6. The instruction defining “intent to defraud” as “the intent to deceive or

cheat” (emphasis added) was obviously erroneous in light of Shaw v. United

States, 137 S. Ct. 462, 469-70 (2016). However, the error did not affect George’s

substantial rights.

          7. The prosecutors did not violate California Rule of Professional Conduct

1-120 by interviewing George while knowing that George was represented by an

attorney who also represented other targets of the investigation.

          8. At the close of the government’s evidence, George’s counsel made a

motion for judgment of acquittal based on specified grounds, not a general motion.

He therefore waived any objection to the non-introduction of the stipulation and

there was no “manifest miscarriage of justice.” United States v. Graf, 610 F.3d

1148, 1166 (9th Cir. 2010) (internal quotation marks omitted).


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    9. No combination of errors warrants reversal for cumulative error.

    SENTENCE VACATED AND REMANDED; CONVICTIONS

AFFIRMED.




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