Unpublished Disposition, 935 F.2d 276 (9th Cir. 1991)Annotate this Case
UNITED STATES of America, Plaintiff-Appellee,v.Gwendolyn CARVER, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Submitted May 29, 1991.* Decided June 4, 1991.
Before HUG, KOZINSKI and LEAVY, Circuit Judges.
Gwendolyn V. Carver appeals her sentence under the United States Sentencing Guidelines following her guilty plea to conspiracy to commit bank fraud, in violation of 18 U.S.C. § 371. Carver contends that there is no factual basis to support the district court's order setting restitution in the amount of $52,735. We have jurisdiction under 28 U.S.C. § 1291 and affirm the sentence.
Carver argues that the district court erred by ordering restitution in the amount of $52,735 because this amount is based on unspecified and unsubstantiated claims by the victim banks.1 An order of restitution under 18 U.S.C. § 3663, the Victim and Witness Protection Act ("VWPA"), is part of the sentencing process and is reviewed for an abuse of discretion. United States v. Cloud, 872 F.2d 846, 855 (9th Cir.), cert. denied, 110 S. Ct. 561 (1989). The district court must identify specific victims of the fraudulent scheme "in a definite amount that is supported by the evidence, limited by the victim's actual losses, and judicially established in a proceeding in which the defendant has the opportunity to refute the amount ordered." Id.; see also United States v. Barany, 884 F.2d 1255, 1260 (9th Cir. 1989) (same), cert. denied, 110 S. Ct. 755 (1990). The district court must make an independent determination that the amount ordered for restitution actually reflects the damages suffered by the victim. Barany, 884 F.2d at 1261.
Here, Carver was involved in a scheme to defraud banks by forging signatures on stolen checks. The probation officer preparing Carver's PSR identified three victim banks and the specific amounts lost by each bank as determined by the respective bank representative. The total reported loss exceeded the amount stated in the plea agreement. Carver filed objections to the PSR, challenging the accuracy of the purported losses. She also argued the issue at the sentencing hearing. Nevertheless, the district court concluded that the banks' losses exceeded $40,000 and ordered Carver to make restitution to the three banks in the amounts listed in the PSR.2
Thus, although Carver had the opportunity to present evidence, she failed to introduce evidence to refute the credibility of the bank representatives or to challenge the reliability of the information. See Barany, 884 F.2d at 1260. Therefore, the district court did not abuse its discretion by adopting the PSR's recommended restitution amount. See Cloud, 872 F.2d at 856.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Apparently, Carver is asserting a due process violation because she states that she had no opportunity to contest these alleged arbitrary amounts
The addendum to the PSR stated that the total loss was $42,735, rather than $52,735. Apparently, the probation officer committed a typographic error because the losses listed for each bank add up to $52,735