Opinion
21-30144
09-29-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSHUA JAMES CHAPPA, Defendant-Appellant.
NOT FOR PUBLICATION
Submitted June 9, 2022 Seattle, Washington
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court Nos. 2:20-cr-00005-DLC-1 2:20-cr-00005-DLC for the District of Montana Dana L. Christensen, District Judge, Presiding
Before: IKUTA and MILLER, Circuit Judges, and PREGERSON, District Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Joshua James Chappa appeals the district court's order of restitution to his former employer in the amount of $241,155.39. We have jurisdiction under 28 U.S.C. § 1291, and affirm.
1. Chappa did not object to the district court's valuation of the embryos. We review restitution challenges raised for the first time on appeal for plain error. See, e.g., United States v. Yijun Zhou, 838 F.3d 1007, 1010 (9th Cir. 2016); United States v. Rizk, 660 F.3d 1125, 1136-37 (9th Cir. 2011); United States v. Fu Sheng Kuo, 620 F.3d 1158, 1162 (9th Cir. 2010); United States v. Clack, 957 F.2d 659, 661 (9th Cir. 1992). In some restitution cases, particularly those centered on factual disputes, we have occasionally deemed newly raised arguments waived, and refused to consider them. See, e.g., United States v. Napier, 463 F.3d 1040, 1045 (9th Cir. 2006); see also Clack, 957 F.2d at 661. As we explained in Zhou, however, "[t]he better reading of those cases is not as an exception to the 'plain error' standard, but as an application of the 'plain error' standard." Zhou, 838 F.3d at 1011. Applying that standard, we conclude that the district court did not plainly err. The district court's valuation was a reasonable estimate grounded in evidence presented by and through Agent Tjernagel, was consistent with Chappa's own statements, and was not speculative. See United States v. Anderson, 741 F.3d 938, 954 (9th Cir. 2013).
2. We review the district court's factual findings as to the number and provenance of cattle for clear error. United States v. Stoddard, 150 F.3d 1140, 1147 (9th Cir. 1998). Whether the evidence was sufficient to support Chappa's ch cattle heavily outweighed the testimony of the two non-credible witnesses ppa put forward in support of his theory.
AFFIRMED.
The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation.