                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 03 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 13-10419
                                                      17-10056
              Plaintiff-Appellee,                     17-10199

 v.                                              D.C. No.
                                                 2:10-cr-00399-MMD-GWF-1
PAUL WAGNER,

              Defendant-Appellant.               MEMORANDUM*


                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                      Argued and Submitted August 16, 2018
                            San Francisco, California


Before: SCHROEDER, SILER,** and GRABER, Circuit Judges.

      Paul Wagner appeals his conviction after a jury trial and his sentence for

eight counts of bank fraud, three counts of wire fraud, and one count of conspiracy



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
to commit bank fraud and wire fraud. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      The district court properly admitted the testimony of Alicia Hanna as lay

opinion testimony under Federal Rule of Evidence 701. Hanna’s testimony was

not expert testimony because she expressed an opinion based on her personal

observations of the lending practices of AmTrust Bank. See United States v.

Barragan, 871 F.3d 689, 704 (9th Cir. 2017) (explaining difference between expert

and lay testimony), cert. denied, 138 S. Ct. 1565 & 1572 (2018). The district court

did not abuse its discretion in allowing the government to present Hanna’s

testimony to establish the materiality of Wagner’s fraudulent representations. See

United States v. Wells, 879 F.3d 900, 914 (9th Cir. 2018) (stating standard of

review); United States v. Lindsey, 850 F.3d 1009, 1011 (9th Cir. 2017) (addressing

elements of mortgage fraud).

      At sentencing, the district court did not err in calculating the amount of loss

and increasing Wagner’s base offense level under U.S.S.G. § 2B1.1(b)(1)(K)

(2012). The district court did not clearly err in finding that payments made

through certain accounts were part of Wagner’s fraudulent scheme. See United

States v. Stargell, 738 F.3d 1018, 1024 (9th Cir. 2013) (stating standard of review).

The district court properly considered these payments as relevant conduct. See


                                          2
U.S.S.G. § 1B1.3(a); United States v. Thomsen, 830 F.3d 1049, 1070 (9th Cir.

2016) (stating that method of calculating loss is reviewed de novo); United States

v. Hahn, 960 F.2d 903, 910 (9th Cir. 1992) (holding that similarity and close

timing may reasonably suggest that repeated instances of criminal behavior

constitute a pattern of criminal conduct). Losses to secondary lenders were

reasonably foreseeable and properly counted. See United States v. Hymas, 780

F.3d 1285, 1293 (9th Cir. 2015) (holding that district court properly considered

losses to successor lenders); United States v. Morris, 744 F.3d 1373, 1375 (9th Cir.

2014) (explaining process for calculating loss in mortgage fraud case). The district

court did not err in failing to subtract the amount of mortgage payments made prior

to foreclosure. See United States v. Zolp, 479 F.3d 715, 719 (9th Cir. 2007)

(holding that district court need only make “a reasonable estimate of the loss based

on available information”).

      The district court properly increased Wagner’s offense level based on the

number of victims under U.S.S.G. § 2B1.1(b)(2)(A)(i) (2012) because the

government proved losses to both original and successor lenders. See Hymas, 780

F.3d at 1293.

      The district court did not err applying an enhancement for sophisticated

means under U.S.S.G. § 2B1.1(b)(10)(C) because the offenses involved hiding


                                          3
kickbacks and mortgage payments made on behalf of straw buyers. See United

States v. Thomsen, 830 F.3d 1049, 1073 (9th Cir. 2016) (affirming sophisticated

means enhancement); United States v. Jennings, 711 F.3d 1144, 1147 (9th Cir.

2013) (explaining that a sophisticated means enhancement requires a scheme that

displays a greater level of planning or concealment than the usual scheme).

      Wagner’s below-Guidelines sentence was not substantively unreasonable.

See United States v. Martinez-Lopez, 864 F.3d 1034, 1043-44 (9th Cir.) (discussing

deferential review of sentencing decision), cert. denied, 138 S. Ct. 523 (2017).

      The district court did not err in denying Wagner’s motion for a new trial

because he did not substantiate his assertion that the prosecution failed to disclose

impeachment evidence. See United States v. Mazzarella, 784 F.3d 532, 538 (9th

Cir. 2015) (setting forth requirements for post-trial motion). Wagner’s assertions

regarding a failure to disclose his trial counsel’s alleged conflict of interest, and

counsel’s ineffective assistance, are more appropriately the subject of a motion

under 28 U.S.C. § 2255. See United States v. Hanoum, 33 F.3d 1128, 1130-31 (9th

Cir. 1994).

      AFFIRMED.




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