                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 16 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30202

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00183-RSL-2

  v.
                                                 MEMORANDUM*
LEONARD HOLLINGSWORTH,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-30229

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00183-RSL-3

  v.

LARSELL HOLLINGSWORTH,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert S. Lasnik, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted July 10, 2013**
                               Seattle, Washington

Before: KLEINFELD, M. SMITH, and N.R. SMITH, Circuit Judges.

      1. The Hollingsworths first challenge the district court’s denial of their

motions for judgment of acquittal. When reviewing such a denial, we review de

novo “whether sufficient evidence exists to support a guilty verdict.” See United

States v. Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005).

      The government’s evidence against the Hollingsworths included: (1) video

recordings showing the Hollingsworths in Lowe’s stores watching employees use

computers to complete return transactions; (2) identification cards the

Hollingsworths had altered to circumvent Lowe’s computer-based loss protection

system; and (3) store records indicating that the Hollingsworths used the same

merchandise card to make purchases in multiple store locations. This evidence

was sufficient to support the jury’s verdict that the Hollingsworths knew or could

have reasonably foreseen that their scheme would cause the use of a wire. See

Pereira v. United States, 347 U.S. 1, 8–9 (1954) (holding that a person causes the

use of a wire by “do[ing] an act with knowledge that the use of [a wire] will follow




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                         -2-
in the ordinary course of business, or where such use can reasonably be foreseen”

(emphasis added)).

      2. Next, the Hollingsworths challenge the district court’s refusal to give a

jury instruction requiring the jury to find that the Hollingsworths knew or could

have reasonably foreseen that their scheme would cause the use of an “interstate”

wire. However, the “interstate” element of the offense of wire fraud is merely

jurisdictional and does not have a mens rea requirement. United States v. Jinian,

712 F.3d 1255, 1265–66 (9th Cir. 2013). The district court’s refusal to instruct the

jury to find a nonexistent element of the offense was not an abuse of discretion.

Moreover, because the government was not required to prove any mens rea with

respect to the “interstate” element, the district court’s refusal to give the proposed

instruction did not create an impermissible “variance.” United States v. Jenkins,

785 F.2d 1387, 1392 (9th Cir. 1986); see also United States v. Pang, 362 F.3d

1187, 1194 (9th Cir. 2004).

      3. The Hollingsworths also challenge the district court’s restitution order,

which required them to pay a greater amount of restitution than was paid by some

of their co-defendants who pled guilty. “A restitution order is reviewed for an

abuse of discretion, provided that it is within the bounds of the statutory

framework.” United States v. Gordon, 393 F.3d 1044, 1051 (9th Cir. 2004).


                                          -3-
Accordingly, district courts have the discretion to order members of a conspiracy

to pay restitution for losses caused by the entire conspiracy. United States v.

Brock-Davis, 504 F.3d 991, 998–99 (9th Cir. 2007). The Hollingsworths cite no

authority supporting their argument that the district court did not have the

discretion to order them to pay a greater amount of restitution than their

co-conspirators, regardless of whether they chose to go to trial.

      4. The Hollingsworths next argue that the district court’s restitution order

violated Apprendi v. New Jersey, 530 U.S. 466 (2000). However, Apprendi does

not apply to restitution orders. See United States v. Green, Nos. 10-50519+, 2013

WL 3467098, at *2 (9th Cir. July 11, 2013).

      5. Finally, the Hollingsworths seek reversal of the district court’s denial of a

two-point downward departure for acceptance of responsibility under U.S.S.G.

§ 3E1.1(a). “[A] district court’s decision about whether a defendant has accepted

responsibility is a factual determination reviewed for clear error.” United States v.

Cantrell, 433 F.3d 1269, 1284 (9th Cir. 2006). A review of the record

demonstrates that, at best, the Hollingsworths admitted to some of the conduct

underlying the offense. However, the district court did not clearly err by

concluding that the Hollingsworths failed to accept responsibility for the offense of

wire fraud.


                                         -4-
AFFIRMED.




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