                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 27 2015

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 14-50291
                                                      14-50293
               Plaintiff - Appellee,
                                                 D.C. Nos. 2:14-cr-00047-ABC
 v.                                                        2:08-cr-01343-ABC

FRANK ERNEST CUTLER, a.k.a. Sidney
Cutler,                                          MEMORANDUM*

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Audrey B. Collins, District Judge, Presiding

                              Submitted July 21, 2015**

Before:        CANBY, BEA, and MURGUIA, Circuit Judges.

      In these consolidated appeals, Frank Ernest Cutler appeals from the district

court’s judgments and challenges the 57-month sentence imposed following his

guilty-plea conviction for wire fraud and aiding and abetting, in violation of 18


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. §§ 2(a) and 1343, and the 24-month consecutive sentence imposed upon

revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      Cutler contends that the district court erred by applying an adjustment

pursuant to U.S.S.G. § 2B1.1(b)(9)(A). Given Cutler’s admission in his plea

agreement that he told investors his media company was designed to “help

humanity” and that proceeds from the sale of stock would be used to fund

philanthropic projects, the court did not abuse its discretion in applying the

enhancement. See United States v. Treadwell, 593 F.3d 990, 1008 (9th Cir. 2010).

      Cutler next contends that the 57-month sentence is substantively

unreasonable because the district court varied upward based on factors already

accounted for by the Guidelines range. He further argues that the sentences should

not have been ordered to run consecutively because they are predicated on the

same conduct, and that the 81-month aggregate sentence is substantively

unreasonable in light of his age, his health problems, and the allegedly small loss

amount. We disagree. The court did not err by varying upward based upon its

determination that the Guidelines range did not adequately account for the

egregiousness of Cutler’s conduct or criminal history. See United States v.

Christensen, 732 F.3d 1094, 1100-01 (9th Cir. 2013) (court may vary upward


                                           2                          14-50291 & 14-50293
based on factors already incorporated into the Guidelines calculations). Moreover,

the Guidelines contemplate that revocation sentences are to run consecutively to

any other sentence of imprisonment, see U.S.S.G. § 7B1.3(f), and the sentences are

substantively reasonable in light of the applicable sentencing factors and the

totality of the circumstances, including Cutler’s extensive criminal history, his

failure to be deterred by prior sentences, and the need for protection of the public.

See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Simtob, 485

F.3d 1058, 1063 (9th Cir. 2007) (when a defendant violates supervised release by

committing the same offense for which he was placed on supervised release,

“greater sanctions may be required to deter future criminal activity”).

      Finally, Cutler contends that the district court erred by overruling his

objection to the presentence report on the ground that it incorrectly stated the date

of his arrest for the new criminal case. Contrary to his contention, the record

reflects that Cutler was arrested in the new case on January 27, 2014. The Bureau

of Prisons, not the sentencing court, is responsible for calculating credit for time

served. See United States v. Lualemaga, 280 F.3d 1260, 1265 (9th Cir. 2002).

      AFFIRMED.




                                           3                           14-50291 & 14-50293
