                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 6 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30131

                Plaintiff-Appellee,             D.C. No.
                                                2:15-cr-00336-JCC-1
 v.

PAUL G. HURLEY,                                 MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Western District of Washington
                  John C. Coughenour, District Judge, Presiding

                           Submitted August 31, 2017**
                              Seattle, Washington

Before: McKEOWN and GOULD, Circuit Judges, and FOOTE,*** District Judge.

      While Paul Hurley was an Internal Revenue Service (“IRS”) agent, he

conducted a tax audit of Ryan Kunkel’s business, Have a Heart Compassion Care,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
Inc. Hurley was indicted under the federal statute prohibiting public officials from

soliciting and receiving bribes and illegal gratuities after Kunkel paid Hurley

$20,000. After a jury convicted Hurley, the district court sentenced him to 30

months in prison followed by three years of supervised release. Hurley appeals his

conviction and his sentence. Because Hurley failed to renew his motion for

judgement of acquittal following the submission of all evidence, we review the

sufficiency of the evidence underlying the conviction for plain error. United States

v. Cruz, 554 F.3d 840, 844 (9th Cir. 2009).

      Hurley argues that insufficient evidence supports his conviction for

receiving a bribe under 18 U.S.C. § 201(b)(2). Evidence is legally sufficient if

“any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt” when viewing the evidence in the light most favorable

to the government. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A defendant

may be convicted of receiving a bribe if he “receive[s] a thing of value knowing

that it was given with the expectation that the official would perform an ‘official

act,’ in return,” even if the defendant had no intention of actually performing the

act. McDonnell v. United States, 136 S. Ct. 2355, 2371 (2016).

      The evidence at trial showed that Kunkel paid Hurley two cash payments in

connection with a favorable tax audit. Hurley did not expand the audit to include

Kunkel’s related businesses and Hurley’s report represented that Kunkel could not


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make any payments on his tax bill, despite Kunkel’s ability to pay Hurley $20,000.

A rational jury could find that the payments influenced the official act of the tax

audit and induced Hurley to violate his official duties as an IRS agent. See 18

U.S.C. §§ 201(b)(2)(A), (C).

      Hurley also challenges his conviction for receiving an illegal gratuity under

18 U.S.C. § 201(c). This conviction was entered as a lesser included offense to the

bribery-solicitation count upon which the jury did not convict. Hurley is precluded

from challenging the jury’s verdict regarding this crime because he asked that the

jury be permitted to consider it as a lesser included offense on this count. United

States v. Butler, 74 F.3d 916, 918 n.1, 924 (9th Cir. 1996) (rejecting argument that

conviction on lesser included offense was improper when defendant himself

requested the challenged instruction). Even if Hurley received nothing of value on

the day he allegedly solicited the $20,000, his actions at trial invited any error in

the verdict. See United States v. Frank, 36 F.3d 898, 903 (9th Cir. 1994) (“The

doctrine of invited error prevents a defendant from complaining of an error that

was his own fault.” (citation omitted)).

      Lastly, Hurley argues that the district court erred by imposing a sentencing

enhancement based on an incorrect calculation of the loss amount. The court

committed no clear error in finding that the loss exceeded $550,000, so a 14-level

enhancement was appropriate under the Sentencing Guidelines. See U.S.S.G.


                                           3
§ 2B1.1(b)(1)(H); United States v. Renzi, 769 F.3d 731, 757 (9th Cir. 2014)

(reviewing factual findings at sentencing for clear error).

      AFFIRMED.




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