Opinion
No. 09-50422.
Argued and Submitted November 1, 2010.
Filed December 15, 2010. As Amended on Denial of Rehearing and Rehearing En Banc March 25, 2011.
Robert J. Keenan, Assistant U.S. Attorney, Office of the U.S. Attorney, Santa Ana, CA, Michael J. Raphael, Esquire, Assistant U.S. Attorney, Office of the U.S. Attorney, Los Angeles, CA., for Plaintiff-Appellee.
Kathryn Ann Young, Federal Public Defender's Office, Los Angeles, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Central District of California, Cormac J. Carney, District Judge, Presiding. D.C. No. 8:05-cr-00301-CJC-1.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Pursuant to a plea agreement, Appellant Colin Nathanson (Nathanson) pled guilty to six counts of mail fraud based on a scheme to defraud investors in his companies. Nathanson challenges his sentence of 324 months' imprisonment.
1. The district court did not err in imposing a two-level enhancement based on Nathanson's violation of prior administrative orders. Nathanson admitted violating several cease and desist orders precluding him from selling unregistered securities. See United States v. Brigham, 447 F.3d 665, 670 (9th Cir. 2006); See also U.S.S.G. § 2Bl.l(b)(8)(C)(2008).
2. The district court properly applied a four-level enhancement to Nathanson's sentence premised on his leadership role in the scheme to defraud. Nathanson's plea agreement establishes that Nathanson served as the chief executive officer of the companies involved in the scheme to defraud and was responsible for the operation and management of the Nathanson Investment Trust and its accounts; directly communicated to investors fraudulent information concerning their investments; and organized the scheme to defraud with a criminally culpable business partner. See United States v. Govan, 152 F.3d 1088, 1096 (9th Cir. 1998) (explaining the facts the district court may consider).
3. The district court did not err in applying a two-level enhancement for abuse of trust. The plea agreement established that Nathanson personally encouraged investors to invest in his fraudulent scheme; personally informed investors that he had the discretion and knowledge to properly invest their funds; and fraudulently withdrew the investors' funds from a trust purportedly established to protect the investments. See United States v. Contreras, 581 F.3d 1163, 1165 (9th Cir. 2009), adopted in relevant part by United States v. Contreras, 593 F.3d 1135, 1136 (9th Cir. 2010) (en banc); See also United States v. Thornton, 511 F.3d 1221, 1227-28 (9th Cir. 2008) (noting that for the enhancement to apply, "[t]he position need not be that of a fiduciary") (citation omitted).
The district court's application of the abuse of trust enhancement did not constitute impermissible double counting. See United States v. Laurienti, 611 F.3d 530, 556 (9th Cir. 2010) ("Where the abuse-of-trust consideration is not included in the base offense level, no unfairness results.") (emphasis in the original).
4. The district court properly applied the obstruction of justice enhancement based on Nathanson's perjury in a declaration in support of a motion to quash a subpoena from the Securities and Exchange Commission. See United States v. Yip, 592 F.3d 1035, 1042 (9th Cir. 2010).
5. The district court complied with Federal Rule of Criminal Procedure 32 because the district court considered Nathanson's objections to the presentence report that were necessary for sentencing, determining that Nathanson's additional objections did not impact his sentence, see Fed.R.Crim.P. 32(i)(3)(B), and adopted the government's position. See United States v. Doe, 488 F.3d 1154, 1158 (9th Cir. 2007) ("[T]he rule is complied with where the district court expressly adopts the position of either party to the dispute.").
6. Nathanson's sentence was substantively reasonable, as the district court fully considered the 18 U.S.C. § 3553(a) factors, Nathanson's letters and certificates, the applicable enhancements, and Nathanson's conduct before imposing a within-Guidelines sentence. See United States v. Chavez, 611 F.3d 1006, 1011 (9th Cir. 2010) ("Where judge and the Sentencing Commission both determine that the Guidelines sentence is an appropriate sentence for the case at hand, that sentence likely reflects the § 3553(a) factors including its not greater than necessary requirement.") (citation, alterations, parentheses, and internal quotation marks omitted) (emphasis in the original).