                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 24 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10266

                Plaintiff-Appellee,             D.C. No. 2:12-cr-00375-TLN

 v.
                                                MEMORANDUM*
ANDRE ANTONIO WALTERS,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Troy L. Nunley, District Judge, Presiding

                       Argued and Submitted July 16, 2019
                           San Francisco, California

Before: PAEZ and RAWLINSON, Circuit Judges, and HUCK,** District Judge.

      Appellant, Andre Antonio Walters, was convicted on four counts of mail fraud

resulting from his participation in a complex scheme to defraud the State of

California Employment Development Department (“EDD”). Walters argues that: (1)

the district court erred in holding him responsible for a loss amount of $5,263,934;


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
(2) the district court erred in ordering restitution in the amount of $5,263,934; (3) if

the correct loss amount is $5,263,934, his 73-month term of imprisonment is

substantively unreasonable; and (4) the district court abused its discretion by

denying his request to continue the sentencing hearing. We have jurisdiction under

18 U.S.C. § 3742 and 28 U.S.C. § 1291 and we affirm.

   1. Loss Calculation and Restitution

      “We review the district court’s interpretation of the Guidelines de novo, the

district court’s application of the Guidelines to the facts of the case for abuse of

discretion, and the district court’s factual findings for clear error.” United States v.

Treadwell, 593 F.3d 990, 999 (9th Cir. 2010).

      The district court correctly determined the amount of loss by a

preponderance of the evidence. See id. at 1001–02. Moreover, the district court did

not err in finding that Walters was responsible for the full loss associated with two

shell companies, Peco Media and Financial Builders Emporium. See id. at 1004–

05. Walters may only be held responsible for “the loss that fell within the scope of

[his] agreement with his co-conspirators and was reasonably foreseeable to [him].”

Id. at 1002; see also U.S.S.G. § 1B1.3(a)(1)(B). There is ample evidence in the

record of Walters’ extensive involvement in the unemployment benefits fraud

scheme and with the scheme’s leader, Donye Mitchell, such that the loss of the

entire scheme tied to Peco Media and Financial Builders Emporium was


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reasonably foreseeable to Walters. The evidence includes extensive spreadsheets,

documents, and trial testimony identifying Walters as a significant and knowing

participant in the scheme. Walters, along with the other managers, also used

common facilities, including call centers set up in two condominium units, to

perpetuate the scheme.

      We also find no error in the district court’s restitution order because the

ordered restitution amount is EDD’s actual loss for which Walters was properly held

responsible.1 See United States v. Thomsen, 830 F.3d 1049, 1065–66 (9th Cir. 2016).

    2. Substantive Reasonableness of Sentence

      We review a sentence “under a deferential abuse-of-discretion standard,” and

will set a sentence aside only if it is “procedurally erroneous or substantively

unreasonable.” United States v. Carty, 520 F.3d 984, 988, 993 (9th Cir. 2008). “The

touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and

meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United

States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012) (citation omitted).




1
 We review de novo “[t]he legality of an order of restitution” and review for clear
error “factual findings supporting the order.” United States v. Brock-Davis, 504
F.3d 991, 996 (9th Cir. 2007) (citations omitted). “Provided that it is within the
bounds of the statutory framework,” we review a restitution order for abuse of
discretion. Id. (citations omitted).


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      Walters argues that his sentence is substantively unreasonably considering his

limited role in the scheme, his likely deportation, and his co-schemers’ shorter

sentences. Walters’ sentence, which is twenty-four months below the low end of the

guidelines range, is not substantively unreasonable. The record reflects that the

district court considered the § 3553(a) factors in determining Walters’ sentence.

And, the district court detailed the overwhelming evidence against Walters

concerning his role in the scheme which the district court considered in determining

Walters’ sentence. Further, Walters is not similarly situated to his co-schemers

because unlike Walters, his co-schemers plead guilty to their charges and cooperated

with the Government. See United States v. Carter, 560 F.3d 1107, 1121 (9th Cir.

2009) (“[A] sentencing disparity based on cooperation [with the Government] is not

unreasonable.”). The district court was also not required to consider Walters’ likely

deportation as a factor in determining Walters’ sentence. See United States v.

Crippen, 961 F.2d 882, 885 (9th Cir. 1992); United States v. Alvarez-Cardenas, 902

F.2d 734, 737 (9th Cir. 1990).

   3. Denial of Request for Continuance

      We review for abuse of discretion the decision to grant or deny a requested

continuance. United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir. 1985). Here, the

district court did not abuse its discretion in denying Walters’ fourth request for a

continuance of his sentencing hearing. Walters was not meaningfully prejudiced by


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the denial, he failed to exercise diligence, and the evidence that Walters hoped to

present would not have been useful in light of other available evidence in the record.

See United States v. Rivera-Guerrero, 426 F.3d 1130, 1130–40 (9th Cir. 2005);

Flynt, 756 F.2d at 1358–59.

      AFFIRMED.




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