                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 6 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30278

                Plaintiff-Appellee,             D.C. No.
                                                3:14-cr-00246-EJL-1
 v.

MATT EUGENE RUCK,                               MEMORANDUM*

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    16-30279

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-00062-EJL-1
 v.

MATT EUGENE RUCK,

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    16-30280

                Plaintiff-Appellee,             D.C. No.
                                                3:16-cr-00183-EJL-1
 v.

MATT EUGENE RUCK,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
               Defendant-Appellant.

                  Appeal from the United States District Court
                            for the District of Idaho
                   Edward J. Lodge, District Judge, Presiding

                      Argued and Submitted March 9, 2018
                              Seattle, Washington

Before: RAWLINSON and CLIFTON, Circuit Judges, and FREUDENTHAL,**
Chief District Judge.

      Defendant Matt Eugene Ruck challenges his sentence from a global

sentencing on three separate federal cases including 1) fourteen counts of wire

fraud and fourteen counts of theft of government property; 2) one count of

Unlawful Possession of Firearms and Ammunition in violation of 18 U.S.C. §

922(g)(1); and 3) one count of Aiding and Abetting Making False Statements in

violation of 18 U.S.C. § 1001. The district court sentenced Ruck on all three

matters to an above-guideline 60 months imprisonment. The district court also

ordered restitution in the amount of $206,081.35. On appeal, Ruck argues the

district court erred in calculating his applicable guideline range by improperly

applying a 2-level enhancement under U.S.S.G. § 3B1.3, by departing upward

from the applicable guideline range, and by improperly calculating the restitution

amount. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


      **
              The Honorable Nancy Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.

                                        2                                  16-30278
      On appeal, Ruck first argues the district court erred in calculating his

applicable guideline range by improperly applying a 2-level enhancement under

U.S.S.G. § 3B1.3 for abuse of position of trust or use of special skill. “This court

reviews a district court's interpretation of the Sentencing Guidelines de novo, its

factual findings for clear error, and its application of the Guidelines to the facts of

the case for abuse of discretion.” United States v. Laurienti, 731 F.3d 967, 973 (9th

Cir. 2013) (citing United States v. Gomez–Leon, 545 F.3d 777, 782 (9th Cir.

2008)).

      Ruck argues that the district court improperly applied the U.S.S.G. § 3B1.3

enhancement by treating the United States Border Patrol as a victim, when the only

victim in the case was Elavon, the credit card processor. This argument lacks

merit. The United States Border Patrol was the victim of Ruck’s convictions for

theft of government property and was properly considered a victim in this case.

Additionally, the district court’s ruling primarily relied on the special skill

provision of U.S.S.G. § 3B1.3 and Ruck failed to challenge that application. As a

result, Ruck waived this argument.            See Indep. Towers of Washington v.

Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“we will not consider any claims

that were not actually argued in appellant's opening brief”). For all these reasons,

Ruck failed to establish that the district court erred in applying the 2-level

enhancement under U.S.S.G. § 3B1.3.


                                          3                                    16-30278
      Ruck also argues that the district court erred by departing upward from the

applicable guideline range. We review “all sentencing decisions for an abuse of

discretion, regardless of whether the district court applies a sentence inside or

outside the suggested guidelines range.” United States v. Tankersley, 537 F.3d

1100, 1109 (9th Cir. 2008) (citation omitted).      The district court adequately

explained its reasons for an above guideline sentence. See United States v. Carty,

520 F.3d 984, 992 (9th Cir. 2008) (en banc).         The district court relied on

undisputed facts that were properly in the record and considered the totality of

Ruck’s conduct in giving Ruck an above guideline range sentence. The district

court considered the calculated method Ruck used to commit his crimes, the people

he victimized, and the degree of harm involved. Given the facts in this case, the

district court did not abuse its discretion in sentencing Ruck to 60 months

imprisonment.

      Finally, Ruck claims the district court’s restitution amount is not supported

by evidence. Ruck failed to raise this claim with the district court. We review for

plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.

2010), and conclude there is none. The district court relied on the information

Elavon provided in the PSR regarding the amount of loss it suffered and applied

appropriate credits.




                                        4                                   16-30278
     Appellee’s motion to file supplemental excerpts under seal and submit

sealed document is GRANTED.

AFFIRMED.




                                    5                              16-30278
