                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 29 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-56635

              Plaintiff - Appellee,              D.C. Nos.    8:10-cv-01641-JVS
                                                              8:05-cr-00036-JVS-2
  v.

ALLEN RAYMOND JOHNSON, AKA                       MEMORANDUM*
Seal B,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                     Argued and Submitted December 10, 2014
                               Pasadena, California

Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.

       In 2005, Allen Johnson pleaded guilty to six counts of honest services wire

fraud, in violation of 18 U.S.C. §§ 1343 and 1346, and conspiracy to launder the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
proceeds of the honest services wire fraud, in violation of 18 U.S.C. § 1956(h).1

He appealed, but only as to the district court’s restitution order. See United States

v. Johnson, 338 F. App’x 561, 562 (9th Cir. 2009) (affirming restitution order). In

2010, Johnson filed a motion to vacate his sentence under 28 U.S.C. § 2255,

arguing that the conduct to which he pleaded guilty no longer constitutes honest

services fraud based on the Supreme Court’s decision in Skilling v. United States,

561 U.S. 358 (2010). The district court determined that Johnson’s Skilling claim

was procedurally defaulted and denied the motion. We have jurisdiction under 28

U.S.C. § 1291 and 2253, and we affirm.

      Johnson maintains that resolution of this appeal turns on whether he is

“actually innocent” of honest services wire fraud. See Bousley v. United States,

523 U.S. 614, 622 (1998) (“Where a defendant has procedurally defaulted a claim

by failing to raise it on direct review, the claim may be raised in habeas only if the




      1
            The parties are familiar with the facts of the conviction, so we will not
recount them here.

                                           2
defendant can first demonstrate either cause and actual prejudice, or that he is

actually innocent.” (citations and internal quotation marks omitted)).2

      In Skilling, the Supreme Court limited the scope of the honest services fraud

statute, 18 U.S.C. § 1346, to “bribery and kickback schemes.” 561 U.S. at 404–09.

There is no question that Johnson pleaded guilty to depriving a lender of its right to

honest services by participating in a kickback scheme. Nonetheless, Johnson

contends that he did not commit honest services fraud because he paid, as opposed

to received, the kickbacks. But nothing in Skilling suggests the Supreme Court

intended to draw a distinction between a fiduciary who deprives a victim of the

right to honest services by receiving a bribe or kickback and a fiduciary who does

the same by paying a bribe or kickback.3

      Johnson points to a sentence in Skilling where the Supreme Court described

the core honest services fraud offense as involving “fraudulent schemes to deprive


      2
              In his briefing, Johnson argued that his Skilling claim is not subject to
the procedural default bar because it implicates the district court’s subject matter
jurisdiction. But even if Johnson were correct that a claim that an indictment fails
to charge a valid federal offense is jurisdictional, in this case we have jurisdiction
and Johnson is not entitled to relief because the indictment states and Johnson
pleaded guilty to a valid honest services fraud offense.
      3
             Also, we observe that Johnson’s conduct may be characterized as
receiving a bribe in the form of referrals, particularly since the net result of the
scheme was that Johnson received a portion of the closing fees without actually
conducting the closings.

                                           3
another of honest services through bribes or kickbacks supplied by a third party

who had not been deceived.” Id. at 404. He overlooks that elsewhere the Court

described the core offense much more broadly, to include “offenders who, in

violation of a fiduciary duty, participated in bribery or kickback schemes.” Id. at

407 (emphasis added); see also id. at 413 (“A criminal defendant who participated

in a bribery or kickback scheme, in short, cannot tenably complain about

prosecution under § 1346 on vagueness grounds.” (emphasis added)). Because

Johnson pleaded guilty to participating in a kickback scheme in violation of his

fiduciary duty, he is not actually innocent of honest services fraud.

      AFFIRMED.




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