                              NOT FOR PUBLICATION                        FILED
                                                                          JUN 9 2017
                      UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50475

                                                 D.C. No. 2:12-cr-00967-JAK
        Plaintiff-Appellee,

   v.                                            MEMORANDUM*

GORDON DRIVER,


        Defendant-Appellant.


                     Appeal from the United States District Court
                        for the Central District of California
                     John A. Kronstadt, District Judge, Presiding

                          Argued and Submitted May 8, 2017
                                Pasadena, California

Before: KOZINSKI and OWENS, Circuit Judges, and SETTLE, District Judge**




           *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
        The Honorable Benjamin H. Settle, United States District Judge for the
Western District of Washington, sitting by designation.
                                          1
      1. Driver contends that his conviction for wire fraud constitutes an improper

extraterritorial application of the statute. However, he failed to raise this objection

below, and we therefore review for plain error. United States v. Barragan-

Espinoza, 350 F.3d 978, 981 (9th Cir. 2003) (“[W]e review for plain error alleged

violations of [Rule 11] raised for the first time on appeal.”). Under this standard

of review, Driver fails to show any error of law, much less one that is clear or

obvious. United States v. Walls, 784 F.3d 543, 546 (9th Cir. 2015) (plain error

standard of review). Although Driver claims that the focus of the wire fraud

statute is the scheme to defraud, we held that “[t]he focus of [the mail and wire

fraud statutes] is upon the misuse of the instrumentality of communication.”

United States v. Garlick, 240 F.3d 789, 792 (9th Cir. 2001) (quoting United States

v. Alston, 609 F.2d 531, 536 (D.C. Cir. 1979)). Therefore, we affirm the

conviction.

      2. Next, Driver contends that his sentence is procedurally unreasonable and

that the district court’s restitution calculation was flawed because the court

considered foreign conduct in reaching its conclusions. Because Driver also failed

to raise these objections below, we review for plain error. Under this standard,




                                          2
Driver has failed to show that any error was clear or obvious. Walls, 784 F.3d at

546. Therefore, we affirm the sentence on procedural grounds.

      3. Driver contends that his sentence is substantively unreasonable because

the district court failed to consider all of the mitigating facts submitted in support

of a more lenient sentence. Driver, however, has failed to provide any fact or

argument supporting “a definite and firm conviction” that, in imposing the

guidelines-range sentence, “the district court committed a clear error of judgment.”

United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (quoting United

States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc)).

      AFFIRMED.




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