Opinion
No. 11-10261 D.C. No. 2:08-cr-00114-LKK-1
06-15-2012
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STEFAN ANDRE WILSON, AKA Stefan A. Wilson, AKA Stephen K. Wilson, AKA Steven K. Wilson, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Submitted June 13, 2012
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
San Francisco, California
Before: GOULD, TALLMAN, and BEA, Circuit Judges.
Defendant-appellant Stefan Wilson ("Wilson") appeals the sentence imposed by the district court after we remanded his case for resentencing, United States v. Wilson, No. 09-10394, 407 Fed. App'x 161 (9th Cir. Dec. 27, 2010) (mem.). We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.
1. The district court correctly construed our previous memorandum disposition as a limited remand. See United States v. Broussard, 611 F.3d 1069, 1071 (9th Cir. 2010).
2. Wilson contends that the district court failed to resolve factual disputes in violation of Fed. R. Crim. P. 32(i)(3)(B). However, he waived any such objections at the resentencing hearing when, directly before the district court imposed the sentence, he agreed that "all the issues" identified in the limited remand had been resolved. See United States v. Manarite, 44 F.3d 1407, 1419 n.18 (9th Cir. 1995).
3. The district court properly verified that Wilson and his counsel read and discussed the presentence report before both the original sentencing hearing and the resentencing hearing. See Fed. R. Crim. P. 32(i)(1)(A).
4. The two-level upward adjustment based on Wilson's role in the offense, USSG § 3B1.1(c), was appropriate. Among other things, Wilson organized the scheme, recruited others to participate in the fraud, controlled the investments, and took the largest share of the money. See United States v. Cabrera, 328 F.3d 506, 511 (9th Cir. 2003).
All references to the Sentencing Guidelines are to the 2008 edition.
--------
5. The two-level upward adjustment based on employment of sophisticated means, USSG § 2B1.1(b)(9)(C), was appropriate. Wilson engaged in numerous complex deceptions designed to induce individuals to invest in his scheme, including fabricating accounting statements that appeared to have been audited by a fictitious accounting firm. See USSG § 2B1.1, App. Note 8(B) (requiring "especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense").
6. The two-level enhancement for abuse of trust, USSG § 3B1.3, was also appropriate. Wilson falsely held himself out to investors as a legitimate hedge fund manager and investment adviser. See USSG § 3B1.3, App. Note 3 ("For example, the adjustment applies in the case of a defendant who . . . perpetrates a financial fraud by leading an investor to believe the defendant is a legitimate investment broker . . . .").
7. The 236-month sentence imposed by the district court—which was within the Sentencing Guidelines range of 210 to 262 months—was neither procedurally flawed nor substantively unreasonable. See United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (en banc).
AFFIRMED.