                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 18 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    17-10139

              Plaintiff-Appellee,                D.C. No.
                                                 2:12-cr-00330-WBS-1
 v.

DIANNA WOODS,                                    MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                            Submitted January 9, 2018**
                             San Francisco, California

Before: WALLACE, RAWLINSON, and WATFORD, Circuit Judges.

      1. The district court did not abuse its discretion by denying Dianna Woods’

timely motion for a new attorney. See United States v. Velazquez, 855 F.3d 1021,

1033–34 (9th Cir. 2017). First, the district court adequately inquired into the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                           Page 2 of 4
conflict by holding a hearing at which it asked Woods to provide examples of the

conflict and allowed the lawyer to respond.1 See id. at 1035. It asked “targeted”

questions that allowed it to reach an informed decision, even without reading

Woods’ written statement. See United States v. Mendez-Sanchez, 563 F.3d 935,

942–43 (9th Cir. 2009). It did not overemphasize the cost of replacing the lawyer:

It solicited and evaluated Woods’ concerns before mentioning the cost. Cf. United

States v. Rivera-Corona, 618 F.3d 976, 981 (9th Cir. 2010).

      Second, the conflict was not “so great as to result in a complete breakdown

in communication.” United States v. Lindsey, 634 F.3d 541, 554 (9th Cir. 2011).

Woods admitted that her lawyer was “not bad” and had her best interests in mind.

Still, she believed that he lacked the necessary real estate knowledge, failed to

question a witness adequately, and had only “one-sided” conversations with her.

None of these concerns establishes that the lawyer and Woods had stopped

communicating or that Woods had “completely lost trust in” the lawyer. See

Velazquez, 855 F.3d at 1033–34, 1036; see also Lindsey, 634 F.3d at 554. Rather,

the concerns suggest that Woods and her lawyer communicated regularly and




      1
         To the extent that this disposition references information that has been
filed under seal, we hereby unseal that information for purposes of this disposition.
                                                                           Page 3 of 4
civilly, just not in the manner Woods would have preferred. See Mendez-Sanchez,

563 F.3d at 943–44.

      2. Woods failed to preserve her challenge to the admissibility of William

Black’s testimony. The motion in limine proffering Black’s testimony at the first

trial preserved the challenge only if the motion was “thoroughly explored during

[a] hearing” and the court’s ruling on it “was explicit and definitive.” See United

States v. Lui, 941 F.2d 844, 846 (9th Cir. 1991); see also United States v.

Whittemore, 776 F.3d 1074, 1082 (9th Cir. 2015). But the district court’s

comment—during the in camera hearing on Woods’ motion to substitute

counsel—that Black’s testimony would be “inadmissible to prove materiality” at

the second trial was not an explicit or definitive ruling on the motion.

Additionally, even if the comment could be construed as a tentative ruling on the

motion, Woods did not preserve the challenge because she never tried to offer

Black’s testimony at the second trial. See Whittemore, 776 F.3d at 1082.

      3. The district court did not plainly err in calculating the loss amount. See

United States v. Armstead, 552 F.3d 769, 778–79 (9th Cir. 2008). First, the actual

loss depends on what she, “under the circumstances, reasonably should have

known” the loss could be. United States v. Morris, 744 F.3d 1373, 1374 (9th Cir.

2014); see U.S.S.G. § 2B1.1 cmt. 3(A)(iv). It was reasonable to find that the actual
                                                                             Page 4 of 4
loss was the entire value of the principal of the loan, as it “almost always” is with

fraudulently obtained loans. See Morris, 744 F.3d at 1375. Second, the district

court was not clearly obligated to inquire into the mortgage payments Woods

made. Interest payments are not credited against the total loan amount when the

loan amount does not include accrued interest. See United States v. Allen, 88 F.3d

765, 770–71 (9th Cir. 1996). Thus, without evidence of the type of payments

Woods made, the district court did not plainly err by failing to inquire into the

payments in order to potentially credit them against the total loan amount.

      4. The district court did not abuse its discretion by imposing a 36-month

sentence. See Gall v. United States, 552 U.S. 38, 41 (2007). To avoid an

unwarranted sentence disparity, the district court compared Woods’ conduct to that

of Robin Dimiceli, who was involved in the same scheme. See 18 U.S.C.

§ 3553(a)(6). There is nothing unreasonable about the district court’s conclusion

that their culpability was similar, that Woods’ false testimony merited an

enhancement similar to the one Dimiceli received for abusing her position of trust,

and that their sentences should be the same.

      AFFIRMED.
