                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 17 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 17-10380

                Plaintiff-Appellee,             D.C. No. 1:16-cr-00785-SOM

 v.
                                                MEMORANDUM*
JAMES AUGUST,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Hawaii
                   Susan Oki Mollway, District Judge, Presiding

                             Submitted May 15, 2018**

Before:      SILVERMAN, BEA, and WATFORD, Circuit Judges.

      James August appeals from the district court’s judgment and challenges the

restitution award to the victim, Hawaiian Airlines (“HA”), following August’s

guilty-plea conviction to interference with flight crew members and attendants, in

violation of 49 U.S.C. § 46504. We have jurisdiction under 28 U.S.C.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291, reviewing for abuse of discretion, see United States v. Waknine, 543 F.3d

546, 555 (9th Cir. 2008), we affirm.

      Following two evidentiary hearings, a review of the pilot’s declaration, and

fourteen exhibits documenting the costs to HA associated with the airplane’s return

to Honolulu following August’s disruptive behavior in flight, the district court

ordered August to pay $97,817.29.

      August first contends that the court erred in awarding turn-around costs. He

argues that HA’s losses were caused not by his conduct, but by the pilot’s

discretionary decision to return to Honolulu rather than land in San Francisco or

Los Angeles or continue on to New York. Contrary to August’s argument, this

court has approved “restitution awards that included losses at least one step

removed from the offense conduct itself” as long as “any subsequent action that

contributes to the loss, such as an intervening cause, [is] directly related to the

defendant’s conduct.” United States v. Gamma Tech Indus., Inc., 265 F.3d 917,

928 (9th Cir. 2001). The pilot’s declaration established that he turned the plane

around after receiving reports of August’s disruptive conduct because Honolulu

was the closest airport. The district court did not abuse its discretion in concluding

that the pilot’s decision was sufficiently related to defendant’s conduct to support

the award of turn-around costs. See id.

      August next contends that the district court improperly found that August


                                           2                                     17-10380
had the ability to pay restitution. The presentence report reflected that August had

minimum monthly bills and was able to earn over $36 an hour in his occupation.

The court did not abuse its discretion in ordering him to pay restitution during his

three-year term of probation in the amount of 10% of his gross monthly income.

See United States v. Stoddard, 150 F.3d 1140, 1147 (9th Cir. 1998) (restitution

may be ordered where the record contains some evidence of future ability to pay). 1

      Lastly, August challenges the district court’s decision to order restitution for

the cost of re-booking passengers on the first available flight, and for maintenance

and replacement crew costs. He argues that the government’s evidence supporting

these costs was insufficient and that the costs were not the direct result of his

crime. We conclude that the re-booking, maintenance, and replacement crew costs

were adequately supported by the exhibits and testimony. See Waknine, 543 F.3d

at 557 (loss amount must be supported by a preponderance of the evidence “that

possesses sufficient indicia of reliability to support its probable accuracy” (internal

quotations omitted)). Furthermore, the costs were sufficiently related to August’s

conduct to justify the award. See Gamma Tech Indus., Inc., 265 F.3d at 928.

      AFFIRMED.


1
 To the extent August asserts in his reply brief that the district court violated
Federal Rule of Criminal Procedure 32 by failing to make an explicit finding that
he was able to pay restitution, we decline to reach that argument. See United
States Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995) (issues not specifically and
distinctly raised and argued in the opening brief need not be considered).

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