                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 23 2013

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



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-50445

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00973-CAS-1

  v.
                                                 MEMORANDUM*
RENE LEONARD REBOLLO, Jr.,
a.k.a., Rene Leonard Rebollo,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                      Argued and Submitted January 9, 2013
                              Pasadena, California

Before:       KOZINSKI, Chief Judge, MCKEOWN and M. SMITH, Circuit
              Judges.

       1. Defendant Rene Rebollo claims there wasn’t a sufficient evidentiary basis

for the district court’s restitution order. But the Presentence Investigation Report

(PSR) provided that basis. It found that defendant’s actions resulted in a loss of


          *
             This disposition isn’t appropriate for publication and isn’t precedent
except as provided by 9th Cir. R. 36-3.
                                                                                  page 2
“$1.2 million for the cost of mailing notices to potentially affected customers.”

Prior to the sentencing hearing, defendant objected in writing to the use of the

$1.2-million figure in calculating the Guidelines sentence, but he did so on the

grounds that it wasn’t “reasonably foreseeable” that such costs would be incurred

as a result of the crime, not on the ground that there was insufficient evidence

documenting the cost expended on notifying customers. When he objected to the

PSR’s findings about restitution, as opposed to sentencing, it was on the grounds

that the conviction didn’t fall within the restitution statute and that neither

Countrywide nor Bank of America qualified as a victim. Indeed, in his written

objection to parts of the PSR, defendant twice acknowledged $1.2 million as the

amount spent notifying customers. Because defendant failed to properly object to

the PSR’s finding that $1.2 million was expended on notifying customers, the PSR

provided a sufficient basis for the district court’s restitution order. United States v.

Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en banc) (“Of course, the district

court may rely on undisputed statements in the PSR at sentencing.”).


      2. Defendant claims Bank of America can’t qualify as a victim under the

Mandatory Victims Restitution Act because he stole the data from Countrywide,

not Bank of America. This claim fails because Bank of America purchased
                                                                               page 3
Countrywide prior to the expenditure of $1.2 million on notifying customers.

Defendant also claims that Bank of America knew of the theft prior to its purchase

of Countrywide and, as a result, the purchase “severed the harm suffered by

Countrywide.” But defendant admits that Countrywide became a wholly-owned

subsidiary of Bank of America before he confessed to the crime and before he was

charged, so this claim fails. Even if Bank of America had learned of the theft prior

to the purchase, it was entitled to expect to recover restitution from defendant, so

the claim that the theft was factored into the purchase price also fails.


      3. Finally, defendant asks us to overrule our precedents holding that

Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny don’t apply to

restitution. We decline that invitation, even in light of the Supreme Court’s recent

decision in Southern Union Co. v. United States, 132 S. Ct. 2344 (2012). Southern

Union addressed Apprendi’s application to criminal fines and isn’t sufficiently on

point to overrule our restitution caselaw without going en banc.


      AFFIRMED.
