                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             FEB 26 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-50017

              Plaintiff-Appellee,                D.C. No.
                                                 2:10-cr-01115-MMM-1
 v.

IRINA TOPILINA, AKA Irina Topilina               MEMORANDUM*
Pinchuk,

              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                          Submitted February 13, 2018**
                              Pasadena, California

Before: BERZON and BYBEE, Circuit Judges, and WOODCOCK,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
               The Honorable John A. Woodcock, Jr., United States District Judge
for the district of Maine, sitting by designation.
      Irina Topilina appeals the district court’s order of restitution for $566,047.11

to the estate of C.M. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The sole issue before us is whether the district court abused its discretion in

determining that Topilina’s uncharged fraudulent offenses against C.M. were

“relevant conduct”—as defined under U.S.S.G. § 1B1.3—to her bankruptcy-fraud

conviction. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170, 1174 (9th Cir.

2017) (en banc), cert. denied, 138 S. Ct. 229 (2017). As pertinent to this appeal,

relevant conduct is defined as “all acts and omissions” by the defendant that (1)

“would require grouping” with the defendant’s offense of conviction under

U.S.S.G. § 3D1.2(d) and (2) “were part of the same course of conduct or common

scheme or plan as the offense of conviction . . . .” U.S. Sentencing Guidelines

Manual § 1B1.3(a)(2) (U.S. Sentencing Comm’n 2016).

1.    In determining the offense level of a defendant convicted of multiple counts,

the Sentencing Guidelines instruct courts to group “[a]ll counts involving

substantially the same harm . . . together into a single Group.” U.S.S.G. § 3D1.2.

For instance, in United States v. Brown, we determined that the district court

properly grouped the defendant’s bankruptcy-fraud conviction with fraud

convictions stemming from a Ponzi scheme because the bankruptcy offense

resulted from his efforts to conceal the Ponzi scheme’s illicit proceeds. 771 F.3d


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1149, 1158 (9th Cir. 2014). The district court below similarly concluded that

Topilina “concealed assets in the bankruptcy proceeding so that her fraudulent

acquisition of assets from C.M. would not come to light.” This finding of fact was

not clearly erroneous. See United States v. Bussell, 504 F.3d 956, 962 (9th Cir.

2007).

      Moreover, even assuming that Topilina’s fraud against C.M. could not have

been charged as a federal offense, our case law forecloses her contention that

§ 3D1.2(d) does not allow grouping with state-law crimes. United States v.

Newbert, 952 F.2d 281, 284 (9th Cir. 1991). Accordingly, the district court did not

abuse its discretion in determining that Topilina’s bankruptcy-fraud conviction

could be grouped with her uncharged fraud offenses.

2.    “For two or more offenses to constitute part of a common scheme or plan,

they must be substantially connected to each other by at least one common factor,

such as common victims, common accomplices, common purpose, or similar

modus operandi.” U.S.S.G. § 1B1.3 cmt. n.5(B)(i) (emphasis added). Here, the

district court concluded that Topilina’s fraudulent acts shared a common purpose

because she defrauded C.M. to obtain the assets and then fraudulently concealed

those very same assets during bankruptcy in order to retain them. Topilina

counters that her fraudulent acts had different victims—C.M. versus the


                                          3
bankruptcy estate and creditors—and had different modi operandi. But common

victims and a common M.O. are merely examples of common factors that connect

two or more offenses in a common plan or scheme—not required elements.

      There is also no merit to Topilina’s contention that her fraudulent acts were

unconnected because she could have filed for bankruptcy before she defrauded

C.M. This argument once again merely challenges the district court’s finding that

she committed bankruptcy fraud in order to conceal her fraud against C.M. and is

thus equally unavailing. See, e.g., United States v. Duran, 15 F.3d 131, 134 (9th

Cir. 1994). And even if concealing the assets’ fraudulent provenance was not

Topilina’s primary motivation in committing bankruptcy fraud, she did not

disclose the assets because she sought to retain them after her bankruptcy. The

underlying goal for her charged and uncharged fraudulent acts was to have and

enjoy valuable assets that did not belong to her. The district court therefore did not

abuse its discretion in concluding that these offenses were part of a common

scheme or plan or in ultimately holding that these fraudulent acts were related

conduct.

      Accordingly, the district court is AFFIRMED.




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