                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 23 2011

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



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 09-50596

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00132-GW-1

  v.
                                                 MEMORANDUM*
RICHARD ANTHONY BIVONA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    George H. Wu, District Judge, Presiding

                          Submitted February 18, 2011**
                              Pasadena, California

Before: KLEINFELD and GRABER, Circuit Judges, and ZILLY, Senior District
Judge.***

       Defendant Richard Anthony Bivona challenges his sentence of 87 months

imprisonment, as well as the roughly $3 million in restitution he was ordered to

        *
             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).
        ***
            The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
pay. On appeal from his sentence, defendant challenges two of the enhancements

on which the district court based the total offense level, namely the enhancements

for loss amount and number of victims. With respect to restitution, defendant

argues a lesser amount should have been imposed. We have jurisdiction under 28

U.S.C. § 1291, and we affirm both the sentence and the restitution order.

      The district court applied the correct burden of proof in calculating the loss

amount and number of victims. In general, facts relevant to sentencing must be

established by a preponderance of the evidence. United States v. Armstead, 552

F.3d 769, 776 (9th Cir. 2008). Although a “clear and convincing” evidence

standard applies when a sentencing factor “has an extremely disproportionate

effect on the sentence relative to the offense of conviction,” id., we have

consistently distinguished between enhancements stemming from the extent of a

conspiracy and enhancements arising from uncharged criminal conduct. See

United States v. Harrison-Philpot, 978 F.2d 1520, 1523 (9th Cir. 1992); see also

Armstead, 552 F.3d at 777; United States v. Riley, 335 F.3d 919, 926 (9th Cir.

2003). These types of enhancements are on “fundamentally different plane[s],”

978 F.2d at 1523, and due process concerns are satisfied by the preponderance of

the evidence standard when the enhancements “are based on criminal activity for

which the defendant has already been convicted.” Armstead, 552 F.3d at 777; see


                                          2                                    09-50596
Riley, 335 F.3d at 926. In this case, the enhancements at issue relate solely to the

extent of the conspiracy, and the district court was not required to apply the clear

and convincing evidence standard. See Riley, 335 F.3d at 926; see also United

States v. Berger, 587 F.3d 1038, 1048-49 (9th Cir. 2009).

      Defendant has not established the “clear error” required to reverse the

factual findings underlying the district court’s sentencing decision. See, e.g.,

United States v. Cantrell, 433 F.3d 1269, 1279-80 (9th Cir. 2006) (outlining the

standard of review). The gravamen of defendant’s appeal is that the district court

should not have considered certain hearsay statements. As defendant apparently

concedes, however, this evidence, if properly considered, supports the district

court’s findings concerning the loss amount and the number of victims. Because

the evidence had sufficient indicia of reliability, the district court’s consideration

of the evidence was proper. See U.S.S.G. § 6A1.3(a) (a sentencing court “may

consider relevant information without regard to its admissibility under the rules of

evidence applicable at trial, provided that the information has sufficient indicia of

reliability to support its probably accuracy”). Defendant’s contrary argument,

based on Shepard v. United States, 544 U.S. 13 (2005), is unpersuasive. Unlike

Shepard, this case does not involve records relating to criminal history, and

defendant cites no authority extending Shepard’s ban on the consideration of police


                                           3                                     09-50596
reports outside the context of determining the exact offense for which a defendant

was previously convicted.

      Because defendant did not object to the amount of restitution, we review for

“plain error.” Fed. R. Crim. P. 52(b); see Armstead, 552 F.3d at 776; see also

United States v. Zink, 107 F.3d 716, 718 (9th Cir. 1997). Defendant complains

that the amount of restitution imposed by the district court varies from the total

reflected on the Government’s spreadsheet. The disparity is easily explained. The

spreadsheet shows a sum of roughly $2.44 million, which reflects losses for the

period from 2003 to 2006. To this amount was added the losses incurred prior to

2003 by three victims, namely the County of Sacramento, Rite Aid, and Bax

Global, Inc., to arrive at a figure of $3,057,978. Thus, defendant has shown no

error, let alone “plain error,” in the amount of restitution.1

      AFFIRMED.




      1
        On appeal, the Government concedes it committed a mathematical mistake
that favored defendant by roughly $650 (the sum of the pre-2003 and 2003-2006
losses is actually $3,058,614) and it failed to omit from the restitution figure about
$77,000 in payments made by victims who are now unidentifiable. This slight
discrepancy, which was not raised by defendant on appeal, does not constitute
“plain error” seriously affecting the “fairness, integrity, or public reputation of
judicial proceedings,” Zink, 107 F.3d at 718, and the Court declines to remand for
redetermination of the restitution amount.

                                            4                                  09-50596
