                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 03 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-55597

              Plaintiff - Appellee,              D.C. Nos.    8:12-cv-01931-AG
                                                              8:06-cr-00224-AG-2
  v.

MICHAEL S. CARONA,                               MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                     Argued and Submitted November 6, 2013
                              Pasadena, California

Before: FISHER and CLIFTON, Circuit Judges, and SINGLETON, Senior
District Judge.**

       Defendant Michael Carona appeals the district court’s denial of his motion

under 28 U.S.C. § 2255. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable James K. Singleton, Senior District Judge for the
District Court for the District of Alaska, sitting by designation.
      The district court did not clearly err in finding that Carona obstructed a

criminal investigation into a form of honest services fraud that survived Skilling v.

United States, 130 S. Ct. 2896 (2010). The investigation was looking into possible

bribery. Whether Carona actually committed or was convicted of bribery is

immaterial. Under United States v. Arias, 253 F.3d 453 (9th Cir. 2009), the cross-

reference to U.S.S.G. § 2X3.1 “applies without regard to whether the underlying

offense is provable.” 253 F.3d at 455. As we explained in that decision, “proof of

the underlying offense is not material, because the point of the cross reference is to

punish more severely (and to provide a greater disincentive for) . . . obstruction

of prosecutions with respect to more serious crimes.” Id. at 459. Because the

district court did not clearly err in finding that bribery was one of the crimes being

investigated, it was appropriate to sentence Carona accordingly.

      Carona’s challenge to the substantive reasonableness of the sentence is

based on the premise that the guidelines range was not correctly calculated by the

district court, but we conclude that the range was not improperly determined. The

sentence imposed was not substantively unreasonable.

      AFFIRMED.




                                          2
