                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 25 2010

                                                                       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. 09-30176

             Plaintiff - Appellee,               D.C. No. 3:07-cr-00430-MO-1

  v.
                                                 MEMORANDUM *
STEVEN EDWARD MILLER,

             Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                             Argued December 8, 2009
                            Submitted February 22, 2010
                                 Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.

       Between August 2004 and November 2006, the defendant Steven Miller

engaged in a complex scheme to defraud Cisco Systems, Inc. Miller pled guilty to

one count of mail fraud and one count of money laundering without a plea

agreement, and did not plead guilty to ten other counts.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review a district court’s methodology for calculating loss under the

Sentencing Guidelines de novo. United States v. Hardy, 289 F.3d 608, 613 (9th

Cir. 2002). We look to the fair market value of the property and in particular the

value “at which th[e] victim offered the goods for sale.” Id. (internal quotation

omitted). This valuation method requires us to look at the market that the victim

participated in. Cisco does not participate and compete in the gray market. It does

not sell replacement parts and it does not do direct sales through the internet.

Cisco’s market is solely authorized distributors and large direct buyers, and

Cisco’s product is inclusive of the warranty and service. Cisco provides

replacement parts as part of its warranty instead of selling them. The district

court’s loss calculation was therefore proper.

      We review for clear error a district court’s refusal (after the government

declines to move for the extra reduction) to grant an additional one-level

downward adjustment for acceptance of responsibility. United States v. Johnson,

581 F.3d 994, 1001 (9th Cir. 2009). The government has discretion on whether to

move for the extra reduction so long as its refusal is not arbitrary or motivated by

an unconstitutional factor. Id. We have conclusively determined that a defendant

who fails to waive her right to appeal justifies the failure to request the reduction.

Id. at 1002; see also United States v. Medina-Beltran, 542 F.3d 729, 731 (9th Cir.


                                           2
2008). Here, Miller failed to waive his right to appeal. Therefore, the district court

did not err.

       United States v. Watt, 910 F.2d 587 (9th Cir. 1990), is inapplicable. It

applied to the two-level acceptance of responsibility reduction that is mandatory if

the defendant enters a timely guilty plea. The decision here is discretionary and

the government can properly ask for various conditions that ease its resource

burdens in exchange for the additional one-point reduction. See Johnson, 581

F.3d at 1006-07.

       We review a district court’s sentencing decisions under the abuse of

discretion standard. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009).

The district court offered a sufficient explanation for giving a sentence that was

higher than similar defendants who had committed fraud against Cisco. See United

States v. Gordon, 393 F.3d 1044 (9th Cir. 2004). The other defendants had no

criminal history whereas Miller had a criminal history level of three. This was

sufficient to justify the sentence.

       AFFIRMED.




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