                                                                               FILED
                               NOT FOR PUBLICATION
                                                                                JUL 28 2017

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


                                FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                                No. 14-50499

                  Plaintiff-Appellee,                     D.C. No. 2:13-cr-00692-
                                                          JFW-2
      v.

 JESSIE L. TOLBERT,                                       MEMORANDUM*

                  Defendant-Appellant.


                        Appeal from the United States District Court
                           for the Central District of California
                         John F. Walter, District Judge, Presiding

                                Argued December 11, 2015
                                 Submitted July 28, 2017
                                   Pasadena, California

Before: GOULD and BERZON, Circuit Judges, and ZOUHARY,** District Judge.

           Following his plea of guilty to charges of wire fraud and conspiracy to

commit wire fraud, Jessie Tolbert appeals the district court’s application of two

enhancements to his base offense level at sentencing. Tolbert maintains that the


  *
    This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
  **
    The Honorable Jack Zouhary, United States District Judge for the Northern
District of Ohio, sitting by designation.
district court erred in finding that he intended a loss of between $400,000 and

$999,999 resulting from the fraud, and that the district court also erred in finding

that he used sophisticated means in furtherance of the fraud.

      We vacated submission of this case pending the outcome of en banc

proceedings in United States v. Gasca-Ruiz, 852 F.3d 1167 (9th Cir. 2017) (en

banc). Gasca-Ruiz held that review of a district court’s application of the

Guidelines to the facts is for abuse of discretion. Id. at 1168. Applying that

standard, we affirm the district court’s sentence in full.

1.    The district court did not clearly err in applying a 14-level enhancement

pursuant to U.S.S.G. § 2B1.1(b)(1)(H), which at the time of Tolbert’s sentencing

required such an enhancement for an intended loss between $400,000 and

$999,999. As recounted in the government’s offer of proof, the accuracy of which

Tolbert confirmed at sentencing, Tolbert admitted that he and his coconspirators

had persuaded an undercover government agent to invest $500,000 in their

fraudulent scheme.

      Tolbert maintains that the amount of $500,000 was suggested by the

government’s undercover agent rather than himself or his coconspirators, and that

he was entrapped into committing a larger fraud than he was otherwise disposed to

commit. But no evidence in the record suggests that the government exerted undue


                                           2
pressure on Tolbert or his coconspirators, or that Tolbert was at all reluctant to

participate in the scheme before or after the $500,000 figure was proposed. Rather,

the government agent merely “presented the opportunity” for a $500,000

investment to Tolbert and his coconspirators, which they agreed to and then

actively participated in making a reality. See United States v. Black, 733 F.3d 294,

312 (9th Cir. 2013).

2.    The district court did not abuse its discretion in applying a two-level

enhancement for the use of sophisticated means in furtherance of the offense

pursuant to U.S.S.G. § 2B1.1(b)(10)(C). See Gasca-Ruiz, 852 F.3d at 1168.

      The Application Notes to the Guidelines describe “sophisticated means” as

“especially complex or specially intricate offense conduct pertaining to the

execution or concealment of an offense. Conduct such as hiding assets or

transactions, or both, through the use of fictitious entities, corporate shells, or

offshore financial accounts ordinarily indicates sophisticated means.” U.S.S.G. §

2B1.1(b)(10) cmt. 9(B). The district court cited three critical facts in explaining its

application of the sophisticated-means enhancement: (1) that Tolbert used his

company, Levette, Inc. (which the district court found was a “shell corporation,”)

as part of the scheme; (2) a coconspirator presented himself under an assumed

name as Tolbert’s attorney, with Tolbert’s knowledge; and (3) that same


                                            3
coconspirator falsified a U.S. passport to lend verisimilitude to his assumed

identity and thereby to induce the government’s agent to invest his money.

      Tolbert argues, with some force, that these three facts do not reflect

sophistication in his particular case. He contends that Levette was not, in fact, a

shell corporation but a legitimate company, and that a coconspirator lying about his

name and occupation is an element in many fraud schemes. As to the forged

passport, he argues that the record includes no evidence as to its sophistication or

quality. But as Tolbert acknowledges, the three facts cited by the district court, at

least “considered in isolation,” may “suggest sophistication.” Given our holding in

Gasca-Ruiz that a district court’s application of the Guidelines to the facts of a

given case is reviewed for abuse of discretion, we are compelled to affirm. We

cannot say that the district court’s application of the enhancement was “illogical,

implausible, or without support in inferences that may be drawn from the record.”

United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009).

      Tolbert also contends that the district court applied the enhancement based

largely on a coconspirator’s conduct rather than Tolbert’s own, although

Guidelines Amendment 792 (effective as of November 1, 2015) makes clear that

the focus of U.S.S.G. § 2B1.1(b)(10)(C) is conduct in which the defendant

intentionally engaged or caused.


                                           4
      “We consider three factors when assessing whether an amendment to the

Guidelines applies retroactively: (1) whether the amendment is listed as a

retroactive amendment in U.S.S.G. § 1B1.10[]; (2) whether the amendment is

characterized as a clarification; and (3) whether the amendment resolves a circuit

split.” United States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir. 2016). None

of those factors applies here. The 2015 amendment constituted a substantive

change to the Guidelines, not a clarification; the amendment did not purport to

resolve a circuit split; and Amendment 792 is not among those listed in U.S.S.G.

§§ 1B1.10(c) or (d). Moreover, the record suggests that Tolbert’s own conduct

supported two of the district court’s three reasons for applying the enhancement.

Tolbert presented himself as a “client” of his coconspirator masquerading as an

attorney, and actively solicited investment in Levette, the alleged shell corporation.


AFFIRMED.




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