                                                                            FILED
                           NOT FOR PUBLICATION                               AUG 20 2010

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                    No. 09-30246

             Plaintiff-Appellee,              D.C. No. CR-4-00002-RRB

      v.                                      MEMORANDUM *

 BECKY NADINE HUNTER, AKA
 Rebekah A. Hunter, AKA Rebecca A.
 Hunter, AKA Ann R. Hunter, AKA
 Rebekah A. Smith, AKA Becky
 Nadine Smith, AKA Rebekah Nadine
 Carden, AKA Rebekah Nadine Smith,
 AKA Rebecca A. Bennett, AKA
 Rebekah An nadine Bennett Hunter,
 AKA Rebekah Ann Hunter, AKA
 Rebekah Nadine Pratt, AKA Rebecca
 Smith,
           Defendant-Appellant.



                    Appeal from the United States District Court
                             for the District of Alaska
                    Ralph R. Beistline, District Judge, Presiding

                       Argued and Submitted March 9, 2010
                               Seattle, Washington



      *
        This disposition is not appropriate for publication and may not be cited to
or by the Courts of this circuit except as may be provided by Ninth Circuit Rule
36-3.
Before: FISHER and BERZON, Circuit Judges, and SNOW, District Judge.**

      Defendant-Appellant Becky Nadine Hunter (“Hunter”) appeals her ninety-

six month term of imprisonment and various restitution awards. Hunter was

convicted on twenty-two counts, all resulting from misrepresentation of herself in

various personal and business matters to obtain financial advantage. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, vacate in part, and

remand.1

                                    DISCUSSION

I.    Loss Calculation

      Hunter first challenges the district court’s calculation of the amount of

intended loss resulting from her fraudulent schemes. Her challenge is barred by the

law of the case doctrine. See United States v. Alexander, 106 F.3d 874, 876 (9th

Cir. 1997). In her previous appeal, this court expressly affirmed the intended loss

amount because Hunter “failed . . . to provide evidence of any pledged collateral.”

United States v. Hunter, 286 F. App’x 482, 483 (9th Cir. 2008). No exception to

the law of the case doctrine applies here. See Thomas v. Bible, 983 F.2d 152, 155


      **
         The Honorable G. Murray Snow, United States District Judge for the
District of Arizona, sitting by designation.
      1
          In a concurrently filed opinion, we address the other issue Hunter raised on
appeal.

                                            2
(9th Cir. 1993), cert. denied, 508 U.S. 951 (1993).

II.   Guideline Enhancements

      We also reject Hunter’s argument that the district court incorrectly enhanced

her sentence. The enhancement for misrepresentation in bankruptcy, United States

Sentencing Guidelines (“U.S.S.G.”) § 2F1.1(b)(4)(B) (2000), was proper. Hunter’s

total sentence was greater than the sixty-month statutory maximum for a single

count of bankruptcy fraud. Several of Hunter’s other crimes, however, which were

grouped together with the bankruptcy fraud, carry maximum penalties that far

exceed the ninety-six month prison term Hunter received. Grouping was

appropriate because Hunter’s “offense behavior” was “ongoing or continuous in

nature” and because the Guidelines specifically note that grouping is appropriate

for all offenses that fall under U.S.S.G. § 2B1.1, as do the present offenses. See

U.S.S.G. § 3D1.2(d). Inasmuch as Hunter’s offenses have been grouped, “the

offense level applicable to [the group] is the offense level corresponding to the

aggregated quantity, determined in accordance with” U.S.S.G. § 2F1.1; see

U.S.S.G. § 3D1.3(b).

      Hunter’s enhancements for sophisticated means, U.S.S.G. § 2F1.1(b)(6)(B),

more than minimal planning, § 2F1.1(b)(2)(A), and use of a means of

identification, § 2F1.1(b)(5)(C), do not constitute impermissible “double


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counting.” These enhancements were necessary to reflect the full extent of

Hunter’s wrongfulness. See United States v. Thornton, 511 F.3d 1221, 1227–28

(9th Cir. 2008). The enhancement for using a means of identification applies

because it is possible to be sentenced for using a means of identification without

having engaged in more than minimal planning or sophisticated means. See id.;

United States v. Reese, 2 F.3d 870, 895 (9th Cir. 1993). Similarly, both two-level

enhancements for more than minimal planning and for sophisticated means were

proper because acting with sophisticated means, by definition, constitutes

something in addition to merely acting with more than minimal planning. See

United States v. Garro, 517 F.3d 1163, 1169-70 (9th Cir. 2008).

III.   Reasonableness

       Given the facts of this case and the sentencing factors set forth in 18 U.S.C.

§ 3553(a), Hunter’s sentence was both procedurally and substantively reasonable.

       A district court commits procedural error when it miscalculates or fails to

calculate the Guidelines range; treats the Guidelines as mandatory instead of

advisory; fails to consider the § 3553(a) factors; chooses a sentence based on

clearly erroneous facts; or inadequately explains the sentence selected. United

States v. Ressam, 593 F.3d 1095, 1116 (9th Cir. 2010) (citing United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc)). The district court committed


                                           4
none of these procedural errors when it imposed a ninety-six month sentence.

      Hunter’s sentence was also substantively reasonable under § 3553(a). The

district court provided an adequate explanation, consistent with the § 3553(a)

factors, for rejecting Hunter’s request for a variance based on her mental health as

other individuals with bipolar disease are able to conform their conduct to society’s

norms. See 18 U.S.C. § 3553(a)(2); Ressam, 593 F.3d at 1120.

      We also reject Hunter’s argument that her sentence was substantively

unreasonable under § 3553(a)(6) because a similarly situated defendant received a

lower sentence. “The mere fact” that Hunter points to another “defendant convicted

at a different time of a different fraud and sentenced to a term of imprisonment

shorter than [hers] does not create an ‘unwarranted’ sentencing disparity.” See

United States v. Treadwell, 593 F.3d 990, 1012 (9th Cir. 2010). Moreover, because

the district court “correctly calculated and carefully reviewed the Guidelines range,

[it] necessarily gave significant weight and consideration to the need to avoid

unwarranted disparities.” See Gall v. United States, 552 U.S. 38, 54 (2007).

IV.   Restitution

      Finally, we address Hunter’s argument that the district court lacked a factual

and legal basis for restitution under the Mandatory Victims Restitution Act

(“MVRA”) for ordering restitution to the United States Army Corps of Engineers,


                                          5
Martha Johnson, and J. Middleton. Because the basis for the district court’s

restitution order in favor of Johnson and Middleton is unclear from the record, we

remand for additional factual findings on that issue.

      A.    Restitution to the U.S. Army Corps

      We affirm the district court’s restitution order to the U.S. Army Corps. The

record clearly establishes that Hunter never performed any work for the Corps;

instead, she immediately feigned illness to receive wages and donated leave. The

U.S. Army Corps was therefore harmed in the full amount paid to Hunter, $10,086.

See United States v. Peterson, 538 F.3d 1064, 1077–78 (9th Cir. 2008).

      B.    Restitution to Johnson and Middleton

      It is unclear, however, whether the record supports the restitution order in

favor of Johnson and Middleton. See United States v. Waknine, 543 F.3d 546, 556

(9th Cir. 2008). The conduct for which Hunter was convicted was not the false

statements to Johnson and Middleton. Rather, she was convicted for making false

statements to the United States Department of Agriculture (“USDA”) in her loan

application in violation of 18 U.S.C. § 1014. See United States v. Gamma Tech

Indus., Inc., 265 F.3d 917, 927 (2001) (permitting restitution under the MVRA

only when a person suffers a loss that flows “directly” from the “specific conduct

that is the basis of the offense of conviction”) (internal quotations omitted). While


                                           6
Johnson and Middleton were likely harmed when the USDA denied Hunter’s loan

application, the only testimony in the record indicates that the USDA did not deny

the loan application due to Hunter’s fraud, but because she lacked sufficient equity

and capital. See Trial Tr., Vol. 2 at 133, 162–167. If the loan was denied for

reasons unrelated to Hunter’s false statements, the causal link between Hunter’s

violation of 18 U.S.C. § 1014 and the harm suffered by Johnson and Middleton

may have been severed. See United States v. Andrews, 600 F.3d 1167, 1171 (9th

Cir. 2010) (“[A] restitution order must be based on losses directly resulting from

the defendant’s criminal conduct.”) (internal quotations omitted); United States v.

Meksian, 170 F.3d 1260, 1263 (9th Cir. 1999) (holding “contaminated nature of

the loan property” caused the alleged victim’s loss, not the defendant’s false

statements under § 1014).

      Nevertheless, because the district court did not explain its restitution order

and because we cannot conclude definitively that the record does not contain a

factual basis to support restitution in favor of Johnson and Middleton, we vacate

that restitution order and remand for further proceedings. Our remand, however, is

limited to the issue of restitution, and only as it pertains to Johnson and Middleton.

      AFFIRMED in part, VACATED in part, and REMANDED.




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