                                                                           FILED
                           NOT FOR PUBLICATION                              APR 15 2011

                                                                        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. 10-30064

              Plaintiff - Appellee,              DC CR No. 3:09-5088 BHS-2

  v.
                                                 MEMORANDUM *
BRADLEY AG GARNER,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-30165

              Plaintiff - Appellee,              DC CR No. 3:09-05088 BHS-2

  v.

BRADLEY AG GARNER,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-30211

              Plaintiff - Appellee,              DC CR No. 3:09-05088 BHS-2

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
BRADLEY AG GARNER,

               Defendant - Appellant.



                    Appeals from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                                Submitted April 12, 2011 **
                                   Seattle, Washington

Before:        KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.

      Bradley Garner appeals the district court’s judgment of conviction and order

of restitution. We have jurisdiction pursuant to 28 U.S.C. § 1291. We remand for

amendment of the judgment and presentence investigation report (PSR). We

affirm in all other respects.

      The conviction on Count 1 remains valid because it is supported by the

independently valid “money or property” theory. United States v. Pelisamen,

No.10-10022, slip op. 5011, 5022 (9th Cir. Apr. 13, 2011). Because the

government does not oppose Garner’s request for a limited remand instructing the

district court to delete all references to theft of honest services in the judgment and

PSR, we grant such relief.


          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).

                                             2
      The restitution order is proper. Because Garner was convicted of wire fraud

and mail fraud, both of which have a “scheme” element, the restitution order

correctly encompasses related but uncharged conduct. See Untied States v. Brock-

Davis, 504 F.3d 991, 998-99 (9th Cir. 2007); United States v. Grice, 319 F.3d

1174, 1177 (9th Cir. 2003).

      We REMAND with instructions that the district court amend the judgment

and PSR by deleting all references to theft of honest services, 18 U.S.C. § 1346.

We AFFIRM in all other respects.




                                          3
