                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            SEP 19 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   15-10350

              Plaintiff-Appellee,                D.C. No. 4:10-cr-01942-CKJ-JR-1

 v.

ANTHONY MARK BOSCARINO, AKA                      MEMORANDUM*
Anthony G, AKA Mark Boscarino, AKA
Mike Brown, AKA Anthony Mark Kokas,
AKA Mark Kokas,

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                      Argued and Submitted August 28, 2017
                               Pasadena, California

Before: WARDLAW and BYBEE, Circuit Judges, and ILLSTON,** District
Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Susan Illston, United States District Judge for the
Northern District of California, sitting by designation.
      Anthony Boscarino appeals the sentence imposed on remand, after his

convictions for wire fraud, money laundering, making a false statement, tax

evasion, felon in possession of a firearm, and making a false statement in

connection with the purchase of a firearm. We affirm.

      1. The district court did not err in applying an obstruction of justice

enhancement under U.S.S.G. § 3C1.1. “We review a district court’s factual

determinations under Section 3C1.1 for clear error, and a district court’s

characterization of a defendant’s conduct as obstruction of justice within the

meaning of Section 3C1.1 de novo.” United States v. Cordova Barajas, 360 F.3d

1037, 1043 (9th Cir. 2004) (quoting United States v. Shetty, 130 F.3d 1324, 1333

(9th Cir. 1997) (internal alterations and quotation marks omitted)). The district

court properly found Defendant’s “cumulative conduct,” including willfully

making material false statements to the SEC while under oath, see United States v.

Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014), and witness intimidation, see

United States v. Dota, 33 F.3d 1179, 1189-90 (9th Cir. 1994), supported the

two-point enhancement for obstruction of justice.

      2. The district court did not abuse its discretion in declining to depart or vary

downward for substantial savings to the government under U.S.S.G. § 5K2.0. See

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The record


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demonstrates that the district court considered Defendant’s motion for variance,

and its decision not to vary downward was not unreasonable. See United States v.

Lichtenberg, 631 F.3d 1021, 1024 (9th Cir. 2011).

      3. The district court did not abuse its discretion in denying Defendant’s

motion for variance based on the not-yet-adopted amendment to U.S.S.G. §

2B1.1(b)(2). See United States v. Ruiz-Apolonio, 657 F.3d 907, 917-18 (9th Cir.

2011). Even if the district court had applied the proposed amendment, the court

did not clearly err in its alternative finding that the offense resulted in substantial

financial hardship to 25 or more victims. See United States v. Christensen, 598

F.3d 1201, 1203 (9th Cir. 2010) (holding that we review factual determinations for

clear error). Nor did the district court clearly err in applying the six-level

enhancement, rather than the two-level enhancement for mass-marketing.

      4. Defendant stipulated that he would not contest the district court’s Final

Order of Forfeiture of seized assets, waiving his right to contest the asset seizure in

this appeal. But even if we were to find that Defendant forfeited rather than

waived this right and therefore review this issue for plain error, United States v.

Laurienti, 611 F.3d 530, 543 (9th Cir. 2010), he would not be entitled to relief.

Defendant has offered no evidence or made any allegation that the government




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seized specific untainted assets prior to his change of plea. The district court

therefore committed no error, let alone one that was plain.

      AFFIRMED.




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