                                                                           FILED
                           NOT FOR PUBLICATION                             MAY 12 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-30001

              Plaintiff - Appellee,              D.C. No. 6:11-cr-60048-AA-1

 v.
                                                 MEMORANDUM*
JOSEPH ANTHONY LACOSTE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                       Argued and Submitted March 11, 2016
                                Portland, Oregon

Before: BERZON and WATFORD, Circuit Judges, and WALTER,** Senior
District Judge.

      1. The government did not breach its plea agreement with defendant Joseph

LaCoste. See United States v. Heredia, 768 F.3d 1220, 1231–34 (9th Cir. 2014).

The government advocated for the agreed-upon 36-month sentence both in its

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
                                                                          Page 2 of 3
sentencing memorandum and at the sentencing hearing. The prosecutor articulated

multiple, relevant reasons why the court should impose the agreed-upon sentence,

and he expressly challenged the bases for the Probation Office’s higher

recommendation, arguing that the government could not prove facts to support the

Probation Office’s higher loss figure and that LaCoste’s offense conduct did not

involve the use of sophisticated means. Even defense counsel acknowledged that,

in light of these representations, the government “satisfie[d] the agreement [the

parties] entered into.” Regardless of whether LaCoste waived this claim, it fails.

      2. The district court did not improperly restrict the statements of LaCoste’s

character witnesses at the sentencing hearing. The district court did not preclude

the defense witnesses from offering whatever relevant information they wished to

provide; it merely admonished them not to make further disparaging comments

about one of the victims of LaCoste’s scheme who had just testified to the impact

of LaCoste’s crimes on her. Nor did the court violate Federal Rule of Criminal

Procedure 32(i)(1)(B) by failing to disclose to the defense the materials the court

reviewed prior to sentencing. The letters about which LaCoste now complains

were written by his supporters, and some of them were submitted to the court by

LaCoste’s own lawyer, albeit apparently without his reviewing them first. The

record contains nothing to support LaCoste’s contention that, in arriving at the
                                                                           Page 3 of 3
sentence it imposed, the district court relied on detrimental information that

defense counsel was deprived of an opportunity to review.

      3. Sufficient evidence supports the imposition of a leadership role

enhancement under U.S.S.G. § 3B1.1(c). The Probation Office reported that

LaCoste made all major financial decisions at the investment firm and controlled

both the firm’s expenditures and its activities related to his fraud. The Probation

Office also noted that LaCoste exercised operational authority over various

participants in carrying out his fraud. The district court was free to accept these

assertions, which suffice to support the leadership role enhancement. Cf. United

States v. Whitney, 673 F.3d 965, 975–76 (9th Cir. 2012). And because the

evidence showed “that the defendant exercised some control over others involved

in the commission of the offense or was responsible for organizing others for the

purpose of carrying out the crime,” the court was not required to make express

factual findings in support of the enhancement. Id. at 975 (quoting United States v.

Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007)).

      These aspects of the district court’s decision are AFFIRMED.
