                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 13 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-30068

              Plaintiff - Appellee,              D.C. No. 4:14-cr-00047-BMM-1

 v.
                                                 MEMORANDUM*
BRUCE HAROLD SUNCHILD,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 15-30069

              Plaintiff - Appellee,              D.C. No. 4:14-cr-00071-BMM-1

 v.

BRUCE HAROLD SUNCHILD,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 15-30070

              Plaintiff - Appellee,              D.C. No. 4:14-cr-00102-BMM-1

 v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
BRUCE HAROLD SUNCHILD,

              Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Brian M. Morris, District Judge, Presiding

                             Submitted April 7, 2016**
                               Seattle, Washington

Before: GILMAN,*** RAWLINSON, and CALLAHAN, Circuit Judges.

      Bruce Sunchild appeals his 34-month sentence imposed following his guilty

pleas to theft from an Indian tribal organization (18 U.S.C. § 1163), accepting a

bribe (18 U.S.C. § 666(a)(1)(B)), and income tax evasion (26 U.S.C. § 7201). The

pleas and sentence arise out of Sunchild’s actions while serving as Chairman of the

Chippewa Cree Tribal Business Committee after the Chippewa Cree Tribe received

federal funding and insurance proceeds in the wake of flooding that destroyed a

medical facility serving the Tribe. On appeal, Sunchild argues that the district

court erred by: (1) incorrectly attributing a loss of over $200,000 to Sunchild’s

offense and, based on this amount, imposing a 12-level enhancement pursuant to

        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
                                          2
U.S.S.G. § 2B1.1(b)(1)(G); (2) denying Sunchild a minor-role reduction; and (3)

imposing a procedurally and substantively unreasonable sentence in violation of 18

U.S.C. § 3553(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     The district court applied the more lenient gratuity sentencing

guideline under U.S.S.G. § 2C1.2 instead of the bribery sentencing guideline under

U.S.S.G. § 2C1.1. The gratuity guideline provides that if the value of the gratuity

exceeded $5,000, then the sentence should be enhanced according to the table in

U.S.S.G. § 2B1.1. U.S.S.G. § 2C1.2(b)(2). The gratuity guideline instructs that

the “value” to be used for purposes of calculating such an enhancement is the

amount of the unlawful payment. Id. However, when the gratuity in question is

part of a jointly undertaken scheme in which multiple gratuities were paid, the

amount of loss to be used for purposes of U.S.S.G. § 2B1.1 is the combined value

of all reasonably foreseeable bribes/gratuities paid in furtherance of the scheme.

U.S.S.G. § 1B1.3.

      Applying these guidelines, the district court determined that the government

had met its burden of showing by a preponderance of the evidence that the loss

attributable to Sunchild’s offense was more than $200,000. The district court

therefore applied a 12-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(G).

Sunchild contends the district court erred because it used an incorrect evidentiary


                                          3
standard and because its loss determination is not adequately supported by the

record.

      A.     The district court appropriately required the government to prove the

amount of loss by a preponderance of the evidence rather than by clear and

convincing evidence. Although the enhancement resulted in a difference of more

than four offense levels, none of the other circumstances relevant to determining

whether the clear and convincing evidence standard applies favors that standard’s

application. See United States v. Treadwell, 593 F.3d 990, 1000 (9th Cir. 2010)

(listing circumstances). Indeed, Sunchild’s sentence of 34 months is well under

the 10-year statutory maximum sentence for bribery. 18 U.S.C. § 666(a)(1)(B).

      B.     The district court did not clearly err in determining that the

government had met its burden of proving that the amount of loss attributable to

Sunchild was more than $200,000. Sunchild admits that he and other tribal

officials authorized a $300,000 embezzlement of tribal funds. Days later, Sunchild

received a kickback of $24,977 in value. The district court did not clearly err in

rejecting Sunchild’s claim that the $24,977 kickback was for unrelated past actions

and not a quid pro quo for facilitating the $300,000 embezzlement. As the district

court explained, Sunchild’s claim was contradicted by “circumstances surrounding

the approval of the $300,000 payment and the money trail as to . . . where those


                                           4
funds ended up.” Nor did the district court clearly err in concluding that this

$24,977 kickback was part of a jointly undertaken scheme that resulted in other

reasonably foreseeable kickbacks that together exceeded $200,000 in value.

Indeed, the bribery count that Sunchild pleaded guilty to states that Sunchild

“authorized and approved the payment of $300,000 in tribal insurance monies . . .

well knowing that the payment was not a business obligation of the Tribe . . . and

that the payment, in whole or in part, was going to be kicked back to Tony James

Belcourt.” The kickback to Belcourt was $200,000 in value. Accordingly, the

combined value of Sunchild’s and Belcourt’s kickbacks alone exceeded $200,000,

satisfying the 12-level enhancement under U.S.S.G. § 2B1.1(b)(1)(G).

      2.     The district court did not err in denying Sunchild a minor-role

reduction. The district court appropriately found that, compared with others

involved in the jointly undertaken criminal scheme, Sunchild was not significantly

less culpable. Although his role was small, it was “critical in light of his position

as vice chair of the tribe, and then eventually chair of the tribe.” Sunchild was

Chairman of the Tribe when he signed off on the $300,000 embezzlement. He was

also a tribally appointed member of the Insurance Recovery Team, which

controlled the insurance proceeds from which the $300,000 was embezzled.




                                           5
      3.     Finally, Sunchild’s sentence was not procedurally or substantively

unreasonable. In applying the sentencing factors, the district court found numerous

facts favorable to Sunchild, including his lack of a criminal history, age, public

service, and limited gain from the offense in question. It is apparent that the

district court found these facts persuasive because Sunchild’s 34-month sentence

represents a significant downward variance from an advisory range of 63 to 78

months. The district court did not abuse its discretion.

      AFFIRMED.




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