                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 11 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10255

              Plaintiff-Appellee,                D.C. No.
                                                 3:14-cr-00077-RCJ-VPC-1
 v.

BANU CHOWDHURY,                                  MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                        Argued and Submitted June 16, 2017
                             San Francisco, California

Before: SCHROEDER, FISHER,** and N.R. SMITH, Circuit Judges.

      Banu Chowdhury appeals his sentence and restitution order. Chowdhury,

along with his employee Abul Kashem (“Kashem”), each pleaded guilty to one




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
count of unauthorized use of food stamps under 7 U.S.C. § 2024(b) and 18 U.S.C.

§ 2.

       The primary issue before the district court was determining the amount of

restitution and loss pursuant to Chowdhury’s and Kashem’s crime. Both parties

agree that the restitution order must ultimately be remanded to correct for a

discrepancy between the oral pronouncement and written judgment and credit

$44,000 to the final restitution award. See United States v. Hernandez, 795 F.3d

1159, 1169 (9th Cir. 2015).

       Chowdhury maintains the district court erred because it used a different

method for calculating loss for him than it did for Kashem. There are, however,

substantial reasons for treating Chowdhury and Kashem differently, given their

disparate levels of culpability and the fact that Kashem received no gain from the

fraud. Law-of-the-case has no applicability.

       Chowdhury also argues the district court procedurally erred in calculating

loss and erred in calculating restitution because the method it used for calculating

projected loss was unreasonable. The government, via a United States Department

of Agriculture (“USDA”) agent, presented the district court with three different

methods of calculating loss. The defense expert criticized all, and did not contend




                                          2
that the one chosen by the district court was less reliable than the other two. There

was no error.

      Chowdhury challenges the substantive reasonableness of his sentence, given

his role as a provider for his family and the hardship that will entail while he’s

imprisoned, his reputation in the Reno Bangladeshi community for kindness and

charity, and his lack of criminal history. His below guidelines sentence, however,

is substantively reasonable, given the extent of the fraud, the pattern of decreasing

fraud after his store was raided, and the resumption of high levels after the danger

seemed past.

      The district court did not err in awarding restitution. Chowdhury argues the

government was not a “victim,” yet Chowdhury received money from USDA to

which he was not entitled, thereby abusing and harming the operation of the

system. This is a direct and proximate harm. 18 U.S.C. § 3663A(a)(2). We

remand for correction of the discrepancy. The sentence and order of restitution are

otherwise affirmed.

      AFFIRMED in part, VACATED in part and REMANDED.




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