                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               OCT 30 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-10317

              Plaintiff-Appellee,                D.C. No.
                                                 3:16-cr-00483-WHA-1
 v.

MICHAEL F. HARRIS,                               MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                      Argued and Submitted October 17, 2018
                            San Francisco, California

Before: THOMAS, Chief Judge, and KLEINFELD and GRABER, Circuit Judges.

      Michael Harris appeals the district court’s imposition of a 12-level

sentencing enhancement under U.S.S.G. § 2B1.1. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We review the district court’s factual findings for clear error and its

application of the Sentencing Guidelines to the facts of the case for abuse of

discretion. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.) (en banc),

cert. denied, 138 S. Ct. 229 (2017). Reversal under an abuse of discretion

standard is possible only when the district court improperly calculates the

Guidelines range or rests its decision on a clearly erroneous finding of a material

fact. United States v. Lloyd, 807 F.3d 1128, 1139 (9th Cir. 2015). Clear error will

not be found if the district court’s account of the evidence is plausible in light of

the entire record. Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002).

If there was an error, we consider whether it was harmless. Fed. R. Crim. P. 52(a).

      At issue is the district court’s “actual loss” calculation at sentencing. The

district court found that Harris’s false statements resulted in an “actual loss” of

more than $250,000 and imposed an 18-month sentence. The court reached its

actual loss conclusion by combining (1) $171,670 in distributions that Harris made

to himself from the Harris trust; and (2) a $150,000 payment the trust made to

Harris’s wife. Harris contests both findings.

                                            I

      The district court did not clearly err by finding an actual loss of $171,670 in

distributions that Harris made to himself from the Harris trust. Under U.S.S.G. §


                                            2
2B1.1, actual loss is the “reasonably foreseeable pecuniary harm that resulted from

the offense.” U.S.S.G. § 2B1.1, cmt. n.3(A)(i). Pursuant to United States v.

Harris, 854 F.3d 1053 (9th Cir. 2017) (per curiam), the payments Harris received

from the trust would have gone to the individuals owed restitution through a

garnishment writ absent his false statements. Further, Harris rendered the funds

unavailable for any future payment of restitution by spending them on personal

expenses. The district court did not err in concluding that inability for those owed

to access the expended funds was a “reasonably foreseeable pecuniary harm”

resulting from Harris’s offense.

      Harris argues that his concealment did not cause any actual loss; instead, he

“simply failed to pay a federal debt as quickly as otherwise might have been

required.” But, as numerous cases in the bankruptcy context demonstrate,

concealed funds available for the payment of restitution are appropriately included

in actual loss calculations. See, e.g., United States v. Lawrence, 189 F.3d 838, 845

(9th. Cir. 1999) (determining funds concealed from creditors when the defendant

placed them in a trust could properly be included in a loss calculation for

sentencing purposes); United States v. Lindholm, 24 F.3d 1078, 1084–86 (9th Cir.

1994) (finding that fraudulent statements on bankruptcy applications that the




                                          3
defendant filed to avoid having to make payments that he had the ability to pay

caused actual loss to creditors).

                                          II

      We need not decide whether the district court erred in including the

$150,000 distribution to Harris’s wife in its actual loss calculation, because any

error was harmless. At sentencing, an error is harmless when the sentencing court

(1) acknowledges that the correct Guidelines range is in dispute and performs the

sentencing analysis twice, beginning with both the correct and the incorrect range;

or (2) when it “chooses a within-Guidelines sentence that falls within both the

incorrect and the correct Guidelines range and explains the chosen sentence

adequately.” United States v. Leal-Vega, 680 F.3d 1160, 1170 (9th. Cir. 2012)

(quoting United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th Cir.

2011)).

      Both are true here. Had the loss amount only included the $171,670, the

court would have applied a 10-level enhancement. U.S.S.G. § 2B1.1(b)(1). At the

sentencing hearing, the district court inquired whether the 18-month sentence

would still be appropriate without the $150,000 payment. After conducting the

analysis, the district court then concluded that, even if the $150,000 were excluded,

the 18-month sentence would still be within the Guidelines range. Thus, any error


                                          4
in the inclusion of the amount was harmless, and we need not decide whether any

error occurred.



      AFFIRMED.




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