                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 27 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        Nos. 14-10569
                                                      15-10184
              Plaintiff-Appellee,
                                                 D.C. No.
 v.                                              2:08-cr-00093-KJM-4

LEONARD BERNOT,
                                                 MEMORANDUM*
              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                          Submitted December 13, 2016**
                             San Francisco, California

Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,*** District Judge.

      Leonard Bernot appeals his sentence for conspiracy to commit mail fraud in

violation of 18 U.S.C. § 1349. He challenges the application of a vulnerable victim



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes that 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.
enhancement and the imposition of restitution. We have jurisdiction under 28

U.S.C. § 1291 and affirm.

      1.     A two-level sentencing enhancement may be imposed if the defendant

“knew or should have known that a victim of the offense was a vulnerable victim.”

U.S.S.G. § 3A1.1(b)(1). The district court properly found that Bernot’s

“reasonably foreseeable” victims included the Garfinkles, see United States v.

Treadwell, 593 F.3d 990, 1002 (9th Cir. 2010), and that these homeowners were

particularly vulnerable compared to other victims of mail fraud, see United States

v. Mendoza, 262 F.3d 957, 960-61 (9th Cir. 2001).

      2.     The district court correctly calculated the Guideline range of 37 to 46

months and articulated the 18 U.S.C. § 3553(a) factors that it considered, including

avoiding unwarranted sentencing disparities, which support the 18-month sentence

imposed.

      3.     The district court properly used the value of the victims’ lost equity in

their home, $316,744.79, as the amount of restitution. See 18 U.S.C.

§ 3663A(b)(1)(B)(i). Bernot is not entitled to a credit against the restitution for the

down payment he made on the house. See id.

      4.     The district court did not clearly err in ordering immediate repayment,

which is the default for restitution under 18 U.S.C. § 3572(d)(1). Bernot did not


                                           2
object to immediate repayment at sentencing, nor does he argue on appeal that he

is unable to make immediate repayment.

      AFFIRMED.




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