                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 20 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 12-10464

              Plaintiff - Appellee,               D.C. No. 2:10-cr-00190-GMN-
                                                  RJJ-1
  v.

STACY JOHNSON,                                    MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                    Gloria M. Navarro, District Judge, Presiding

                        Argued and Submitted June 10, 2013
                             San Francisco, California

Before: TASHIMA and BYBEE, Circuit Judges, and STAFFORD, Senior District
Judge.**

       Stacy Johnson appeals her conviction and sentence for embezzlement in

violation of 29 U.S.C. § 501(c) and for falsification of financial records required to

be kept by a labor union ("Union") in violation of 29 U.S.C. § 439(c). Because the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for the Northern District of Florida, sitting by designation.
factual and procedural background is familiar to the parties, we do not recount it

here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and

vacate and remand in part.

A. Trial Issues

      Johnson first contends that there was insufficient evidence to support the

jury's verdict. We find that the evidence presented at trial, viewed in the light most

favorable to the prosecution, was more than sufficient to permit a rational trier of

fact to find the essential elements of the charged offenses beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Morales,

108 F.3d 1031, 1036-37 (9th Cir. 1997).

      Johnson next challenges the district court's decision to allow the government

to impeach its own witness, Gennero Joseph (Johnson's ex-husband), through the

testimony of another witness, Alan Weiss, one of the investigators who

interviewed Joseph before trial. We review the district court's evidentiary ruling

for an abuse of discretion, and we reverse only if we find that an erroneous

evidentiary ruling "more likely than not affected the verdict." United States v.

Pang, 362 F.3d 1187, 1191-92 (9th Cir. 2004). Here, even if Weiss's testimony

should have been excluded, Johnson has failed to show that the verdict was "more




                                           2
likely than not affected" by the admitted testimony. We thus conclude that any

error did not prejudice Johnson.

B. Sentencing Issues

      Johnson challenges the district court's decision to increase her offense level

by six points for uncharged acts of embezzlement that—according to her—were

not relevant conduct under the Guidelines. We review for clear error a district

court's determination that conduct extraneous to an offense of conviction is

"relevant conduct" within the meaning of the Guidelines. United States v. Hahn,

960 F.2d 903, 907 (9th Cir. 1992). Because the evidence in this case established

that both charged and uncharged acts of embezzlement were part of an ongoing

series of similar offenses committed regularly using the same modus operandi, the

district court did not clearly err in finding that the uncharged acts of embezzlement

constituted relevant conduct for purposes of sentencing.

      Johnson also challenges the district court's decision to add two points to her

offense level under § 2B1.1(10)(C) of the Guidelines, which section directs the

district court to increase a defendant's offense level by two levels if the offense

involved "sophisticated means." We review the district court's factual

determination that Johnson's offense involved "sophisticated means" for clear

error, United States v. Aragbaye, 234 F.3d 1101, 1107 (9th Cir. 2000), and we find


                                           3
that the district court did not clearly err given the evidence demonstrating that

Johnson concealed her offenses by manipulating the Union's computer software to

create fraudulent receipts, by running fraudulent cashier's audit reports, and by

using a special security code to "doctor" the member records of each victim. See

United States v. Jennings, 711 F.3d 1144, 1145 (9th Cir. 2013) (noting that

"[c]onduct need not involve highly complex schemes or exhibit exceptional

brilliance to justify a sophisticated means enhancement").

      Finally, Johnson maintains that the district court's restitution order was

beyond its legal authority. Although Johnson did not object to the restitution order

at sentencing, the government concedes that the district court plainly erred by

including—in the judgment—a requirement that Johnson pay restitution totaling

$53,500.00 (for losses attributable to both charged and uncharged acts of

embezzlement). The district court presumably relied upon the authority cited in

the Presentence Report, namely, the Mandatory Victims' Restitution Act

("MVRA"), 18 U.S.C. § 3663A (providing that district courts are required to order

restitution when sentencing defendants convicted of certain crimes under Titles 18

and 21). The MVRA does not, however, authorize a district court to order

restitution when sentencing a defendant, like Johnson, convicted of offenses under




                                           4
Title 29. Because the district court lacked legal authority to order restitution as

part of Johnson's sentence, the restitution order must be vacated.

CONVICTION AFFIRMED; SENTENCE OF RESTITUTION VACATED;

CASE REMANDED.




                                           5
