                                                                            FILED
                           NOT FOR PUBLICATION                               FEB 28 2013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. 11-50116

              Plaintiff - Appellee,              D.C. No. 8:98-cr-00118-AHS-1

  v.
                                                 MEMORANDUM *
LANCE VAN ALSTYNE,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
               Alicemarie H. Stotler, Senior District Judge, Presiding

                           Submitted February 26, 2013 **
                             San Francisco, California

Before: HAWKINS, BERZON, and CLIFTON, Circuit Judges.




       *     This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
      Lance Van Alsytne was convicted in 2001 of seven counts of mail fraud and

three counts of money laundering in connection with a fraudulent investment

scheme. This is his third appeal arising from that conviction. For the reasons stated

below, we affirm the district court’s judgment and sentence.

      Van Alstyne’s present appeal seeks reversal and remand on two grounds:

First, he contends the district court abused its discretion when, on remand for

resentencing, it declined to take up Van Alstyne’s challenge to the one money

laundering conviction that we did not reverse when the case was last before us.

Relying on language from our 2009 opinion, United States v. Van Alstyne (Van

Alstyne II), 584 F.3d 803 (9th Cir. 2009), Van Alstyne maintains that the district

court should have vacated his conviction on count 22 because the refund

transaction on which that count was based “undermined rather than advanced” the

mail fraud investment scheme. See id. at 815–16. Second, he argues that the district

court erred in imposing a four-level “aggravating role” sentence enhancement

under U.S.S.G. § 3B1.1, because the evidence is insufficient to show that he

supervised a “criminally responsible” participant in the investment scheme. We

reject both of Van Alstyne’s arguments.

      1. Our mandate to the district court on remand was limited to resentencing.

Van Alstyne II, 584 F.3d at 807, 816–818, 821. In this circuit, the rule of mandate


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is jurisdictional. United States v. Thrasher, 483 F.3d 977, 982 (9th Cir. 2007).

Thus, the district court correctly concluded that it lacked jurisdiction to consider

Van Alstyne’s challenge to his remaining money laundering conviction, as doing

so would have exceeded the clear parameters of our remand. See Hall v. City of Los

Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012).

      The rule of mandate does not, however, preclude a district court from

considering issues not decided, expressly or implicitly, by the appellate court,

United States v. Kellington, 217 F.3d 1084, 1092–94 (9th Cir. 2000), or otherwise

“not foreclosed by the mandate,” Herrington v. Cnty. of Sonoma, 12 F.3d 901, 904

(9th Cir. 1993), as the “mandate[ ] require[s] respect for what the higher court

decided, not for what it did not decide.” Hall, 697 F.3d at 1067 (alterations in

original) (quoting Kellington, 217 F.3d at 1093). But we did decide the issue Van

Alstyne presented to the district court in our 2009 opinion. We specifically held

that although the refund transaction was not a “crucial element” of the scheme to

defraud, because it diminished the funds available to induce further investments, it

was “intended to ‘promote the carrying on,’ of the ‘scheme’ at the heart of the mail

fraud counts, by discouraging [its] detection.” Van Alstyne II, 584 F.3d at 815–16

(citation omitted) (quoting 18 U.S.C. § 1956(a)(1)(A)(i)). On that basis, we

affirmed Van Alstyne’s conviction as to count 22.


                                          -3-
      Moreover, viewed under the law of the case doctrine, our result would be the

same. There was nothing clearly erroneous about our decision regarding the count

22 conviction, nor would its enforcement work a “manifest injustice.” United

States v. Lewis, 611 F.3d 1172, 1179 (9th Cir. 2010). A conviction under 18 U.S.C.

§1956 may be based on conduct that undermines the predicate criminal scheme in

one respect and promotes it in another. None of the other exceptions to the law of

the case doctrine applies.

      2. There are no grounds for reversal of the sentencing enhancement. “Factual

determinations at sentencing are reviewed for clear error, and the application of the

Guidelines to the facts is reviewed for abuse of discretion.” United States v. Yi, 704

F.3d 800, 805 (9th Cir. 2013). The district court did not clearly err in finding by a

preponderance of the evidence that an individual under Van Alstyne’s supervision

was a “criminally responsible” participant in the fraud scheme. See U.S.S.G.

§ 3B1.1 cmt. nn.1–2; cf. United States v. Egge, 223 F.3d 1128, 1133 (9th Cir.

2000). There was evidence in the record that the individual not only knew of

fraudulent statements and payments to investors but continued his involvement in

the scheme in spite of this knowledge. Because the district court’s findings “are

plausible in light of the record viewed in its entirety,” reversal is not warranted.

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F. 3d 782, 795 (9th Cir.


                                           -4-
2005). Nor was the application of U.S.S.G. § 3B1.1(a) to the facts of this case

“illogical, implausible, or without support in inferences that may be drawn from

the facts in the record.” United States v. Treadwell, 593 F.3d 990, 999 (9th Cir.

2010) (quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en

banc)).

      AFFIRMED.




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