                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 29 2015

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

UNITED STATES OF AMERICA,                        No. 14-10145

              Plaintiff - Appellee,              D.C. No. 4:12-cr-00860-YGR-1

 v.
                                                 MEMORANDUM*
SALEEM M. KHAN,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 14-10344

              Plaintiff - Appellee,              D.C. No. 4:12-cr-00860-YGR-1

 v.

SALEEM M. KHAN,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Northern District of California
                Yvonne Gonzalez Rogers, District Judge, Presiding

                     Argued and Submitted February 10, 2015
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                            -2-
Before: SCHROEDER and SILVERMAN, Circuit Judges and GARBIS,** Senior
District Judge.

         Saleem Khan appeals the sentence and restitution award imposed by the

district court on the grounds that the Government failed to present sufficient

evidence to meet its burden of proof for determining loss to calculate the

sentencing guidelines and for determining restitution. Based on comments made

by the district court at sentencing, Khan also seeks remand to a different district

judge.

         "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) (citation

omitted) (internal quotation marks omitted). We review a district court's

underlying factual findings supporting an order of restitution for clear error, while

the valuation methodology is reviewed de novo. United States v. Fu Sheng Kuo,

620 F.3d 1158, 1162 (9th Cir. 2010).

         The district court did not err in determining, for purposes of calculating the

sentencing guidelines, that the amount of loss Khan caused to E*TRADE Bank

was between $200,000.00 and $400,000.00 or in ordering Khan to pay

$313,665.98 in restitution.

         **
             The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
                                        -3-
      Khan pled guilty to a fraudulent scheme starting "no later than in or about

July 2010." On July 13, 2010, Khan falsely told PNC Bank, the servicer of the

home equity line of credit ("HELOC"), that he could not make payments on the

HELOC because he had been laid off. As a result of this false statement, PNC

decided to charge off the loan. By making more false statements on January 13,

2011, Khan convinced PNC to settle with him for $45,000.00 and reconvey the

property used to secure the HELOC. At the time of both of these false statements,

the total outstanding balance on the HELOC was $358,665.98.

      Thus, the appropriate measure of the loss Khan caused to E*TRADE, for

purposes of calculating the sentencing guidelines, is the amount of the HELOC

advanced to Khan minus the settlement amount; or $299,850.00.

      For purposes of restitution, the appropriate measure of the actual loss Khan

caused to E*TRADE is the total outstanding balance on the HELOC (including

associated costs and accrued interest) totaling $358,665.98, reduced by the

$45,000.00 that E*TRADE fraudulently was induced to accept in settlement; or

$313,665.98.

      Contrary to Khan's argument, the district court did not use the amount

advanced to him on the HELOC as a "proxy" for loss. Rather, the district court

correctly decided that the actual loss Khan caused was the amount due from Khan
                                         -4-
in excess of the $45,000.00 paid to settle the HELOC debt. The fraudulent

scheme was not Khan’s obtaining funds from the HELOC but his obtaining a

release for less than full payment by virtue of false statements. The "pump and

dump" cases on which Khan relies are inapposite.

      Accordingly, we conclude that the district court correctly determined that the

loss amount for sentencing guidelines purposes was $299,850.00 and correctly

ordered $313,665.98 in restitution.

      AFFIRMED.1




1
       While it is not necessary to address Khan's contention regarding a
reassignment of the case to a different district judge for further sentencing, it is
appropriate to state that we find no reason to conclude that the district judge acted
improperly or would be unable to preside fairly over any further proceedings.
