United States v. Neil A. Thomsen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50235

Plaintiff-Appellee,

D.C. No.

v. 3:10-CR-02810-BEN

NEIL THOMSEN,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted June 8, 2016

Pasadena, California

Filed July 28, 2016

Before: Stephen Reinhardt and Kim McLane Wardlaw,

Circuit Judges, and Mark W. Bennett, Senior District

Judge.*

Opinion by Judge Bennett

*

The Honorable Mark W. Bennett, Senior District Judge for the U.S.

District Court for the Northern District of Iowa, sitting by designation.

2 UNITED STATES V. THOMSEN

SUMMARY**

Criminal Law

The panel affirmed in part, reversed in part, and remanded

in a case in which the defendant, a tax preparer, was

convicted of 32 federal offenses arising from a tax fraud

scheme.

The panel held that 18 U.S.C. § 1546(a) (fraud and

misuse of visas, permits, and other documents) does not apply

to documents that are not immigration-related, such as U.S.

passports or U.S. passport cards, and that the district court

therefore erred by denying the defendant’s motion for

judgment of acquittal as to Count 33, which charged a

violation of § 1546(a), and Count 34, which charged

aggravated identity theft during and in relation to the felony

passport card fraud offense.

The panel held that the district court did not err, as a

matter of law, in concluding that awarding restitution for

related conduct beyond the conduct for which the defendant

was specifically convicted was within statutory bounds. But

the panel held that the district court clearly erred, on a

question of fact, in finding that the conduct at issue in a

second case, in which the defendant was not convicted, was

sufficiently “related” to the conduct at issue in the first case

to warrant inclusion of losses in the order for restitution

pursuant to 18 U.S.C. § 3663A(a)(2).

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. THOMSEN 3

The panel held that the district court erred by using

the 2011 rather than the 2008 version of U.S.S.G.

§ 2B1.1(b)(2)(C) to calculate the number of victims at

sentencing.

The panel held that the primary flaw with the district

court’s “intended loss” finding under U.S.S.G. § 2B1.1(b)(1)

is that the district court improperly considered the intended

loss from the second case, which did not result in the

defendant’s conviction, even though that case did not involve

“relevant conduct” because it was not “part of the same

course of conduct or common scheme or plan as the offense

of conviction.” The panel wrote that furthermore the United

States nowhere identifies evidence establishing—or identified

by the district court as the basis for the finding—that specific

challenged amounts of intended loss in the first case were, in

fact, actual or intended loss.

Noting the absence of any authority holding that tax

returns are “means of identification,” the panel held that the

district court improperly imposed an enhancement, U.S.S.G.

§ 2B1.1(b)(10) (2008), for using social security numbers of

others to produce personal tax returns.

The panel held that the district court properly applied a

sophisticated means enhancement, U.S.S.G. § 2B1.1(b)(9)(C)

(2008).

The panel wrote that because it vacated the conviction on

Count 33, U.S.S.G. § 2L2.2(c)(1)(A)’s cross-reference to

U.S.S.G. § 2X1.1 is inapplicable.

The panel held that the district court did not plainly err in

applying an “abuse of trust” enhancement under U.S.S.G.

4 UNITED STATES V. THOMSEN

§ 3B1.3, where persons in whose name the defendant filed

fraudulent tax returns by using personal information provided

to him in his employment as a tax preparer were subject to

emotional and other burdens as a result of his conduct.

The panel held that the district court did not err in

applying an enhancement for “obstruction of justice” under

U.S.S.G. § 3C1.1.

COUNSEL

Gail Ivens (argued), Deputy Federal Public Defender; Hilary

L. Potashner, Federal Public Defender; Office of the Federal

Public Defender, Los Angeles, California; for Defendant-

Appellant.

Joseph J.M. Orabona (argued), Assistant United States

Attorney; Peter Ko, Chief, Appellate Section, Criminal

Division; Laura E. Duffy, United States Attorney; United

States Attorney’s Office, San Diego, California; for Plaintiff-

Appellee.

UNITED STATES V. THOMSEN 5

OPINION

BENNETT, Senior District Judge:

On July 14, 2010, Neil Thomsen, then a 67-year-old

retired engineer turned tax preparer, was charged, as the sole

defendant, with 34 federal offenses arising from a tax fraud

scheme. On December 8, 2011, a jury convicted him of 32 of

those offenses, after the prosecution withdrew two. He was

sentenced to fifteen years of imprisonment and ordered to pay

just over $500,000 in restitution. He now appeals his

conviction of two offenses, the restitution order, and the

calculation of his advisory guidelines sentencing range. We

affirm in part, reverse in part, and remand for further

proceedings.

I. INTRODUCTION

A. Charges And Conviction

The charges against Thomsen arose from an alleged tax

fraud scheme, beginning on a date unknown and continuing

through about April 15, 2009, that is, for the 2009 tax season

relating to the 2008 tax year. The Indictment alleged the

essence of the scheme was “that defendant THOMSEN

fraudulently used the personal identification, including names

and [social security numbers], of individuals, for whom he

prepared tax returns or who had their tax returns prepared by

an entity where defendant THOMSEN was employed, in

order to file false income tax returns with the IRS and to

obtain tax refunds and tax preparation fees to which he was

not entitled.” Indictment, ¶ 11. Two of the charges require

specific mention, as they are the only convictions that

Thomsen appeals: In Count 33, Thomsen was charged with

6 UNITED STATES V. THOMSEN

fraud and misuse of visas, permits, and other documents, in

violation of 18 U.S.C. § 1546(a), arising from his use, on or

about April 25, 2009, of a United States passport card bearing

his photograph, but the name and biographical information of

another person, on an application for an Earth Class Mail

account; and, in Count 34, he was charged with aggravated

identity theft, in violation of 18 U.S.C. § 1028A, during and

in relation to the felony passport card fraud offense.1

Thomsen’s trial began on November 29, 2011, and

continued on December 2, 6, 7, and 8. The prosecution

dismissed two mail fraud counts (Counts 5 and 6) before the

case was submitted. The jury convicted Thomsen of the other

32 counts. Thomsen obtained permission to proceed pro se,

thereafter, but with advisory counsel. On March 28, 2012,

Thomsen filed a pro se Motion For Judgment Of Acquittal,

as relevant here, on Counts 33 and 34. The court denied that

motion on April 17, 2013.

1

Thomsen was also charged with the following offenses: in Counts 1

through 6 of the Indictment with mail fraud, in violation of 18 U.S.C.

§ 1341, based on mailings in January and February of 2009 of preprinted

refund checks or debit cards for refunds from two Electronic Return

Originator (ERO) banks to Thomsen or his company; in Counts 7 through

16 with false, fictitious, and fraudulent claims, in violation of 18 U.S.C.

§ 287, based on the filing of fraudulent tax returns for 2008 in January and

February 2009; in Counts 17 through 24 with fraudulent use of the social

security numbers of other persons, in violation of 42 U.S.C. § 408(a)(8),

based on the filing of several of the same tax returns for 2008 at issue in

Counts 7 through 16, in January and February 2009; and in Counts 25

through 32 with aggravated identity theft, in violation of 18 U.S.C.

§ 1028A, again based on the filing of several of the same returns at issue

in prior counts, in January and February 2009.

UNITED STATES V. THOMSEN 7

B. Charges And Disposition In The Second Case

On May 31, 2011, well before Thomsen’s trial on the first

Indictment, Thomsen and three co-defendants were charged

in a separate Indictment, in a separate case, with conspiring,

from a date unknown through about May 2011, to defraud the

United States by obtaining, and aiding others to obtain, the

payment of false, fictitious, and fraudulent claims against the

United States, specifically, income tax refunds, in violation

of 18 U.S.C. § 286 and 18 U.S.C. § 2. The second Indictment

alleged overt acts in furtherance of this conspiracy between

December 30, 2009, and March 29, 2010.2 Thomsen’s three

co-defendants all eventually pleaded guilty to the fraudulent

claims conspiracy charge in the second case and were

sentenced to time served. They were also ordered to pay

restitution in the amount of $197,922.04, jointly and

severally. Thomsen neither pleaded guilty to nor was

convicted on any of the charges against him in the second

case. The second indictment was eventually dismissed as to

Thomsen after he was sentenced in the first case.

C. Sentencing

A Presentence Report (PSR) concerning Thomsen, filed

July 20, 2012, indicates that the probation officer used the

2

A Superseding Indictment in the second case, against Thomsen and

one other defendant, added an overt act in furtherance of the original

conspiracy on June 17, 2010; a new count of conspiracy to commit wire

fraud, in violation of 18 U.S.C. § 1349, from a date unknown through

about June 2012; fourteen new counts of aggravated identity theft, in

violation of 18 U.S.C. § 1028A, based on the filing of tax returns for 2009

in January and February 2010; another six new counts of aggravated

identity theft, in violation of 18 U.S.C. § 1028A, also based on the filing

of tax returns in January 2010; and forfeiture allegations.

8 UNITED STATES V. THOMSEN

November 1, 2011, Guidelines Manual. The PSR calculated

an advisory guidelines range of 135 to 168 months of

imprisonment, recommended a sentence approximately in the

middle of that range, and recommended restitution in the

amount of $317,337. At the first of three sentencing

hearings, on March 4, 2013,3 Thomsen recommended a

sentence of not more than 5 years (60 months), and the

prosecution recommended a sentence of 416 months. The

prosecution stated its intent to increase the amount of

restitution it was seeking, based on its desire to “roll that

second case as relevant conduct into the first case,” for a total

of over $500,000 in restitution. Not surprisingly, Thomsen

objected.

On April 17, 2013, the probation officer filed an

Addendum To Presentence Report (Addendum), addressing

the parties’ objections to the original PSR. Neither the

defendant nor the AUSA objected to the use of the 2011

Guideline Manual in the original PSR as the use of the wrong

year of the Manual, nor did the probation officer recognize

this crucial mistake. The Addendum did, however,

recalculate Thomsen’s advisory guidelines sentence. Those

calculations are significant to Thomsen’s appeal.

Specifically, for offenses in Group One (Counts 1–4,

7–16, and 17–24), the Addendum started with a base offense

level of 7, pursuant to U.S.S.G. § 2B1.1(a)(1); added 14

3

At the second sentencing hearing, on April 17, 2013, the district court

allowed Thomsen two hours to cross-examine the government’s witnesses

on their declarations and documents supporting the intended losses

claimed, although Thomsen contended he had only received some of the

documentation the evening before. At the third sentencing hearing, on

May 22, 2013, the court heard final arguments and imposed sentence.

UNITED STATES V. THOMSEN 9

levels for an intended loss between $400,000 and $1,000,000,

pursuant to U.S.S.G. § 2B1.1(b)(1)(H); added 6 levels for

more than 250 victims, pursuant to U.S.S.G.

§ 2B1.1(b)(2)(C); added 2 levels for “sophisticated means,”

pursuant to U.S.S.G. § 2B1.1(b)(10)(C); added 2 levels for

using victims’ social security numbers to produce other

means of identification, identified as personal tax returns,

pursuant to U.S.S.G. § 2B1.1(b)(11)(C)(i); added 2 levels for

abuse of a position of trust, because Thomsen was a tax

preparer to whom the personal information of others had been

entrusted, and he used that information for his own financial

gain, pursuant to U.S.S.G. § 3B1.3; and added 2 levels for

obstruction of justice, based on false testimony at trial,

pursuant to U.S.S.G. § 3C1.1. These calculations resulted in

an adjusted offense level of 35 for Group One.

For the offense in Group Two (Count 33), the Addendum

started with a base offense level of 7, pursuant to U.S.S.G.

§ 2L2.2(c)(1), using the cross-reference to U.S.S.G. § 2X1.1,

because Thomsen used a passport or visa in the commission

of a felony, with underlying substantive offenses of mail

fraud, false claims, and fraudulent use of a social security

card, making the corresponding offense level the one set out

in U.S.S.G. § 2B1.1. The Addendum then made the identical

adjustments to the offense level that it had made for the

Group One offenses. These calculations, again, resulted in an

adjusted offense level of 35.

The Addendum determined that the multiple count

adjustment, pursuant to U.S.S.G. § 3D1.4, required an

increase of two levels to 37. The Addendum then rejected

any adjustment for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1(a). With a criminal history category of I,

these calculations resulted in an advisory guidelines range of

10 UNITED STATES V. THOMSEN

210 to 262 months of imprisonment. The Addendum

recommended a 72-month sentence (concurrent as to each

count), however, based on the 18 U.S.C. § 3553(a) factors.

The Addendum then applied a mandatory sentence of 2

years, consecutively, for each of Counts 25 through 32 and

34, which would have increased the sentence to 24 years (288

months). The Addendum recommended that the mandatory

2-year sentences on these counts run concurrently, however,

which raised the recommended sentence to only 96 months (8

years).

At Thomsen’s final sentencing hearing, the district judge

heard arguments from the parties, then imposed sentence.

More specifically, the district judge stated,

First, I’m going to deal with the objection

[sic]. There were various objections, lots of

objections that were filed by Mr. Thomsen. I

have a trial with a jury coming in in a short

while, so I don’t have really the time to go

through all of them. I’m simply going to

indicate that I have reviewed probation’s

response to those objections, and I adopt

probation’s views on every one of those

objections. I think there was one exception.

Let me double-check.

Well, I note that there was an objection. I

believe it was objection no. 16, which the

court will grant.

The district judge concluded that some objections (nos.

17–19) would have no effect on the sentence that he would

impose, then reiterated that he was “adopt[ing] probation’s

UNITED STATES V. THOMSEN 11

findings and recommendations in connection” with the

remaining objections.

Next, the district judge summarized and accepted the

sentencing calculations in the Addendum; described the

seriousness of the offense, and his reasons for rejecting both

the prosecution’s request for a sentence of 416 months and

the probation officer’s recommendation of 96 months; and

explained his application of the § 3553(a) factors.

Ultimately, the district judge imposed a sentence of 15 years

(180 months). The district judge also ordered restitution in

the amount of $515,257.75, with a credit of $61,545, and a

remaining balance of $453,712.75 to be paid to the IRS,

which included the loss in the second case against Thomsen

and three co-defendants. The district judge expressly ordered

“that the restitution in [the second case], in the amount of

$197,922.04, be made payable jointly and severally with the

other co-defendants in that case.”

D. Issues On Appeal

Thomsen filed timely notices of appeal. Thomsen’s

request to represent himself pro se on this appeal was denied,

and his current counsel was appointed. Thomsen has limited

his appeal to three issues: (1) the denial of his motion for

judgment of acquittal as to Counts 33 and 34; (2) the

restitution order; and (3) errors in sentencing, although this

last issue has numerous subissues. In his brief, Thomsen

states, “Aside from counts 33 and 34, he neither challenges

his conviction nor seeks to have it set aside.”

12 UNITED STATES V. THOMSEN

II. LEGAL ANALYSIS

A. Denial Of The Motion For Judgment Of Acquittal

Thomsen argues, first, that the district court should have

granted his motion for judgment of acquittal as to Counts 33

and 34, which charged a violation of 18 U.S.C. § 1546 and a

related aggravated identity theft offense, respectively.

Thomsen contends that § 1546 does not apply to a passport

card.

1. Applicable standards

We review de novo questions of statutory interpretation.

See, e.g., Fang Lin Ai v. United States, 809 F.3d 503, 506 (9th

Cir. 2015); United States v. Kowalczyk, 805 F.3d 847, 856

(9th Cir. 2015). We recently stated,

When interpreting a statute, we are guided

by the fundamental canons of statutory

construction and begin with the statutory text.

See BedRoc Ltd., LLC v. United States,

541 U.S. 176, 183, 124 S.Ct. 1587, 158

L.Ed.2d 338 (2004). We interpret statutory

terms in accordance with their ordinary

meaning, unless the statute clearly expresses

an intention to the contrary. United States v.

Ron Pair Enters., Inc., 489 U.S. 235, 242, 109

S.Ct. 1026, 103 L.Ed.2d 290 (1989). We must

“interpret [the] statut[e] as a whole, giving

effect to each word and making every effort

not to interpret a provision in a manner that

renders other provisions of the same statute

inconsistent, meaningless or superfluous.”

UNITED STATES V. THOMSEN 13

Boise Cascade Corp. v. U.S. E.P.A., 942 F.2d

1427, 1432 (9th Cir.1991). Additionally,

“[p]articular phrases must be construed in

light of the overall purpose and structure of

the whole statutory scheme.” United States v.

Lewis, 67 F.3d 225, 228–29 (9th Cir.1995).

United States v. Neal, 776 F.3d 645, 652 (9th Cir. 2015);

accord United States v. Leal-Felix, 665 F.3d 1037, 1042 (9th

Cir. 2011) (“Interpretation of a word or phrase [in a statute]

depends upon reading the whole statutory text, considering

the purpose and context of the statute, and consulting any

precedents or authorities that inform the analysis.” (citation

and internal quotation marks omitted)). Notwithstanding the

importance of the text itself, we “must avoid a literal

interpretation of the statute that produces an ‘absurd’ result.”

United States v. Shill, 740 F.3d 1347, 1353 (9th Cir. 2014)

(citing United States v. American Trucking Ass’ns, 310 U.S.

534, 543 (1940)); United States v. Thompson, 728 F.3d 1011,

1018 (9th Cir. 2013) (explaining that courts must not

“violate[] the precept that ‘[w]henever possible, “we interpret

statutes so as to preclude absurd results”’” (quoting United

States v. Cabaccang, 332 F.3d 622, 631 (9th Cir. 2003), with

citations omitted)).

Generally, we may turn to legislative history for guidance

only “[w]hen a statute is susceptible to two or more

meanings, . . . [b]ut ‘the plainer the language, the more

convincing contrary legislative history must be.’” Schroeder

v. United States, 793 F.3d 1080, 1085 (9th Cir. 2015)

(quoting Church of Scientology of Cal. v. U.S. Dep’t of

Justice, 612 F.2d 417, 422 (9th Cir. 1979)); United States v.

Crooked Arm, 788 F.3d 1065, 1073 (9th Cir. 2015) (“We may

consider legislative history if the statute is ambiguous or if

14 UNITED STATES V. THOMSEN

‘the legislative history clearly indicates that Congress meant

something other than what it said.’” (quoting Carson Harbor

Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir. 2001)

(en banc), in turn quoting Perlman v. Catapult Entm’t, Inc.,

165 F.3d 747, 753 (9th Cir. 1999)). This limitation

notwithstanding, we have also used legislative history to

confirm an interpretation guided by other canons. See, e.g.,

United States v. Hui Hsiung, 778 F.3d 738, 754 (9th Cir.

2014) (noting, “The legislative history supports this statutory

interpretation,” based on other canons).

2. Analysis

a. Krstic and Franklin

The parties have framed the statutory interpretation issue

in this case primarily in terms of whether we should follow

United States v. Krstic, 558 F.3d 1010 (9th Cir. 2009), or

United States v. Franklin, No. CR 07-967 PSG, 2011 WL

3424448 (C.D. Cal. Aug. 5, 2011), aff’d, 501 F. App’x 629

(9th Cir. 2012) (unpubl. mem.). We conclude that Krstic,

while relevant to some extent, is not controlling on the issues

presented here; that our decision on appeal in Franklin is not

controlling; and that we are not convinced by the district

UNITED STATES V. THOMSEN 15

court’s interpretation of the statute in Franklin.4 Thus, we

must embark on our own statutory interpretation.

Here, as in Krstic, we are presented with “a classic

question of statutory interpretation,” albeit a different one

than we addressed in Krstic, and this question requires us to

“begin . . . with the text of the statute.” 558 F.3d at 1013.

b. Section 1546(a)

The text of § 1546(a) provides, in pertinent part, as

follows:

4

Nowhere in Krstic did we hold that the only documents covered by

§ 1546(a) are “immigrant or nonimmigrant” documents, as Thomsen

contends. Indeed, that question was not even before us, because the

defendant in Krstic was an alien and the document in question was an

alien registration card. 558 F.3d at 1012–13. Furthermore, as we

repeatedly made clear, the question in Krstic was not whether the statute

applies only to “immigrant or nonimmigrant” documents, but whether

“such” in the second clause of the statute referred to “immigrant or

nonimmigrant” or “knowingly forges, counterfeits, alters, or falsely makes

any immigrant or nonimmigrant visa.” Id. at 1013–17.

In Franklin, we affirmed a United States citizen’s conviction pursuant

to § 1546(a) for possession of a United States passport bearing his

photograph, but the name and other identifying information of his cousin,

knowing that the passport had been procured by means of a false claim

and statement and by fraud and to have been unlawfully obtained, “for the

reasons enumerated by the district court.” 501 F. App’x at 630. Our

unpublished memorandum opinion in Franklin is not precedent. See 9th

Cir. R. 36-3. The district court in Franklin applied several canons of

statutory interpretation to reach its conclusion that a defendant could be

convicted under § 1546(a) for possession of a U.S. passport, but we do not

agree, for the reasons set out in the body of this opinion.

16 UNITED STATES V. THOMSEN

(a) Whoever knowingly forges, counterfeits,

alters, or falsely makes any immigrant or

nonimmigrant visa, permit, border crossing

card, alien registration receipt card, or other

document prescribed by statute or regulation

for entry into or as evidence of authorized

stay or employment in the United States, or

utters, uses, attempts to use, possesses,

obtains, accepts, or receives any such visa,

permit, border crossing card, alien registration

receipt card, or other document prescribed by

statute or regulation for entry into or as

evidence of authorized stay or employment in

the United States, knowing it to be forged,

counterfeited, altered, or falsely made, or to

have been procured by means of any false

claim or statement, or to have been otherwise

procured by fraud or unlawfully obtained

[shall be punished as specified.]

18 U.S.C. § 1546(a) (emphasis added). Thomsen’s argument

that the meaning of this statute is “plain” is belied by our

observation in Krstic that, “with this section, Congress has

achieved in a single 124-word sentence a level of confusion

it usually takes pages to create.” 558 F.3d at 1013. The

confusion, here, involves the scope of the general or catchall

“other document” clauses: Are the “other documents” limited

to immigration-related documents, or can they include a U.S.

passport or U.S. passport card?5

5

Thomsen initially argued that a critical dispute in this appeal was

whether a U.S. passport card is a passport, but the government conceded

that it is. We agree. A “passport card,” like a passport, is issued by the

Department of State to United States citizens for travel abroad and reentry

UNITED STATES V. THOMSEN 17

c. Plain meaning

i. “Whoever . . .”

Although the statute is confusing, we are not without

guidance. First, we observe that § 1546(a) plainly and

expressly applies to “whoever” engages in the proscribed

conduct, not just to “any alien.” Neal, 776 F.3d at 652. The

government argues this means that the statute can apply to

documents, such as U.S. passports, used by U.S. citizens, not

just to documents used by aliens. It is true that, some time

ago, in United States v. Knight, 514 F.2d 1286 (5th Cir.

1975), the court rejected the argument that what is now the

third paragraph of § 1546(a)6 could not be violated by an

American citizen. 514 F.2d at 1287. In Knight, the court

explained,

into the United States, albeit not for international air travel, but only when

entering the United States from Canada, Mexico, the Caribbean, and

Bermuda at land border crossings or sea ports-of-entry. See 71 Fed. Reg.

60928-32, 2006 WL 2948176 (Oct. 17, 2006).

6

Then, as now, the third paragraph of § 1546(a) provided, as follows:

Whoever, when applying for an immigrant or

nonimmigrant visa, permit, or other document required

for entry into the United States, or for admission to the

United States personates another, or falsely appears in

the name of a deceased individual, or evades or

attempts to evade the immigration laws by appearing

under an assumed or fictitious name without disclosing

his true identity, or sells or otherwise disposes of, or

offers to sell or otherwise dispose of, or utters, such

visa, permit, or other document, to any person not

authorized by law to receive such document [shall be

punished as provided].

18 UNITED STATES V. THOMSEN

We agree with the district court, that the word

“whoever” means exactly that. Though Knight

is correct in his history, the section in question

is no longer within Title 8, but is now in Title

18. Cf. 8 U.S.C.A., § 1325 on false or

misleading representation by aliens which

begins with the words “any alien”.

Id.

The government’s argument that “whoever” demonstrates

that § 1546 applies to U.S. passports, because it applies to

American citizens, goes too far. Rather, we conclude that the

use of “whoever” in § 1546(a) identifies only the status of the

perpetrator, not the nature of the documents involved in the

proscribed conduct. For example, looking only to the plain

text of § 1546(a), it is clear that a United States citizen could

violate this provision by using an alien registration receipt

card, which is an immigration-related document, knowing

that it was forged to bear his or her name, perhaps to disguise

his or her identity as a fugitive. See 18 U.S.C. § 1546(a)

(providing for the punishment of “whoever . . . uses . . . [an]

alien registration receipt card . . . knowing it to be forged”).

Thus, the fact that the statute applies prohibitions on the

conduct of United States citizens does not mean that the

documents to which it applies necessarily include documents

that are not immigration-related, such as U.S. passports

issued to U.S. citizens.

ii. “Immigrant and nonimmigrant . . .”

Continuing our examination of the plain text of the

statute, we note that the words “immigrant and

nonimmigrant” precede the list of documents to which

UNITED STATES V. THOMSEN 19

§ 1546(a) applies. If “immigrant and nonimmigrant” modify

all of the listed documents, then the scope of the statute

would seem to be restricted to immigration-related

documents. We agree with the district court in Franklin that

the plain text of § 1546(a) does not preclude a reading of the

adjectives “immigrant and nonimmigrant” as modifying all

of the listed documents. 2011 WL 3424448 at *5. Under that

reading, the provision would only apply to documents that are

immigration-related. Id.

That is not the end of the inquiry, however. Rather,

reading the whole statutory text, considering its purpose and

context, see Leal-Felix, 665 F.3d at 1042, and, most

importantly, “avoid[ing] a literal interpretation of the statute

that produces an ‘absurd’ result,” Shill, 740 F.3d at 1353;

Thompson, 728 F.3d at 1018, we conclude that “immigrant

and nonimmigrant” cannot be read to apply to all of the listed

documents. As the United States points out, a “nonimmigrant

alien registration receipt card” does not exist, and 8 U.S.C.

§ 1101(a)(6) defines “border crossing identification card,” not

an “immigrant border crossing identification card” or a

“nonimmigrant border crossing identification card.”

Furthermore, “immigrant visa” and “nonimmigrant visa” are

defined in the 1952 legislation that also amended § 1546(a)

to include “immigrant and nonimmigrant” immediately

before “visa,” 66 Stat. 163, 169, 275 (1952), codified at

8 U.S.C. § 1101(a)(16).7 Thus, a plain reading of the text, in

light of the overall purpose and structure of the whole

statutory scheme, Neal, 776 F.3d at 652; Leal-Felix, 665 F.3d

7

The words “immigrant” and “nonimmigrant” describe different classes

of aliens, not United States citizens. 8 U.S.C. § 1101(a)(15).

20 UNITED STATES V. THOMSEN

at 1042, is that “immigrant and nonimmigrant,” as used in

§ 1546(a), modify only “visa.”8

As we explain, below, the government goes too far,

however, when it argues that, because “immigrant and

nonimmigrant” modify only “visa,” the “other document[s]”

to which § 1546(a) applies are not just immigration-related

documents, but include U.S. passports.

iii. Omission of “passport” from the list

Looking further at the plain text of the statute, see Neal,

776 F.3d at 652, we find that the words “passport” and

“passport card” are conspicuous by their absence from

§ 1546(a). Congress could easily have included “passport” in

the list in § 1546, if it had intended § 1546 to apply to

“passports.” Indeed, § 1546(a) is the only statute in the group

of statutes (18 U.S.C. §§ 1541–1547) relating to “passports

and visas” that does not contain the word “passport.” This

omission from the statute’s plain text—which we must

consider intentional—suggests that “passports” do not fall

within the scope of the statute. In contrast, § 1543 explicitly

8

In other words, reference to the legislative history—here, the 1952 act

amending § 1546(a)—would have eliminated any ambiguity about

whether “immigrant and nonimmigrant” were intended to modify more

than “visa”—they were not. See Schroeder, 793 F.3d at 1085. At the very

least, this legislative history would have confirmed a plain reading of

“immigrant and nonimmigrant” as modifying only “visa.” Hui Hsiung,

778 F.3d at 754.

UNITED STATES V. THOMSEN 21

prohibits some of the same kinds of conduct involving

“passports” that § 1546 prohibits as to the listed documents.9

It is true, as the government argues, that the prosecution

has the discretion to decide what charge to file when more

than one statute prohibits the conduct in question. United

States v. Batchelder, 442 U.S. 114, 123–24 (1979) (“This

Court has long recognized that when an act violates more

than one criminal statute, the Government may prosecute

under either so long as it does not discriminate against any

class of defendants.”); accord United States v. Maes,

546 F.3d 1066, 1068 (9th Cir. 2008). That argument strikes

9

Section 1543 provides as follows:

Whoever falsely makes, forges, counterfeits, mutilates,

or alters any passport or instrument purporting to be a

passport, with intent that the same may be used; or

Whoever willfully and knowingly uses, or attempts to

use, or furnishes to another for use any such false,

forged, counterfeited, mutilated, or altered passport or

instrument purporting to be a passport, or any passport

validly issued which has become void by the

occurrence of any condition therein prescribed

invalidating the same [shall be punished as provided].

18 U.S.C. § 1543 (emphasis added). Section 1546(a) applies to one who

“utters, . . . possesses, obtains, accepts, or receives” an identified

document, which § 1543 does not. Section 1543 applies to “furnish[ing]”

a document identified, but § 1546(a) does not. We need not decide

whether “furnishing” and “uttering” proscribe similar or equivalent

conduct; we simply note the differences in the terms used. Here, Thomsen

was charged in Count 33 with “knowingly us[ing], possess[ing] and

utter[ing]” a document to which § 1546(a) applies. Thus, in Thomsen’s

case, the two statutes would overlap as to the “us[ing]” of a passport, if

both apply to passports.

22 UNITED STATES V. THOMSEN

us as beside the point, however, in the context of a group of

related statutes, where it would be particularly odd to

construe two provisions to state duplicate prohibitions on

some of the same conduct involving some of the same

documents.

Rather, in this context, the difference in language between

the provisions strongly suggests that the purpose of the two

statutes was to address different kinds of documents,

“passports” in § 1543 and immigration-related documents in

§ 1546. See White v. Lambert, 370 F.3d 1002, 1011 (9th Cir.

2004) (“It is axiomatic that when Congress uses different text

in ‘adjacent’ statutes it intends that the different terms carry

a different meaning.”), overruled on other grounds by

Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc);

Crawford v. Burke, 195 U.S. 176, 190 (1904) (explaining that

“a change in phraseology creates a presumption of a change

in intent” and that “Congress would not have used such

different language [in two statutes] without thereby intending

a change of meaning”). In other words, the omission of

“passports” from § 1546(a) and the use of different terms in

that provision than are found in related, adjacent provisions

lead us back to the conclusion that § 1546(a) does not apply

to U.S. passports. Other canons of interpretation confirm this

conclusion.

d. Other canons of interpretation

i. Ejusdem generis

As the Supreme Court has explained,

[The] canon . . . ejusdem generis counsels:

“Where general words follow specific words

UNITED STATES V. THOMSEN 23

in a statutory enumeration, the general words

are [usually] construed to embrace only

objects similar in nature to those objects

enumerated by the preceding specific words.”

Washington State Dept. of Social and Health

Servs. v. Guardianship Estate of Keffeler,

537 U.S. 371, 384, 123 S.Ct. 1017, 154

L.Ed.2d 972 (2003) (internal quotation marks

omitted).

Yates v. United States, ___ U.S. ___, ___, 135 S. Ct. 1074,

1086 (2015).10 In Franklin, on which the government relies,

the district court applied the canon ejusdem generis to

conclude that “it [is] logical, but not necessary, to conclude

that the general ‘other document’ term [in § 1546(a)] should

not be read broadly to include plane tickets (which might

assist in physically ‘entering’ the country), but should instead

be limited to immigration documents of the type that an alien

might use to validly enter, stay and work in the United

States.” 2011 WL 3424448 at *5 (emphasis in the original).

We agree.

The government’s argument that § 1546(a) applies to

more than immigration-related documents might be more

persuasive if § 1546(a) referred simply to “document[s],”

rather than to “other documents,” that are “prescribed by

statute or regulation for entry into or as evidence of

10

Applying this canon in Yates, the Supreme Court concluded, “Had

Congress intended ‘tangible object’ in § 1519 to be interpreted so

generically as to capture physical objects as dissimilar as documents and

fish, Congress would have had no reason to refer specifically to ‘record’

or ‘document.’ The Government’s unbounded reading of ‘tangible object’

would render those words misleading surplusage.” ___ U.S. at ___,

135 S. Ct. at 1087.

24 UNITED STATES V. THOMSEN

authorized stay or employment in the United States.” Here,

the use of “other” plainly suggests that the “document[s]” are

documents like the ones preceding them in the list, that is,

immigration-related documents. Yates, ___ U.S. at ___.

135 S. Ct. at 1086.

Although the district court in Franklin found reasons not

to settle on the interpretation suggested by application of

ejusdem generis, we do, in light of still other canons of

interpretation.

ii. Interpretation in the context of its corpus juris

The district court in Franklin applied the principle that

courts must not interpret a statute in isolation, but must

consider “the context of the corpus juris of which they are a

part.” Franklin, 2011 WL 3424448 at *5 (quoting Branch v.

Smith, 538 U.S. 254, 281 (2003)); accord Leal-Felix,

665 F.3d at 1042. We agree that resort to this principle is

also appropriate, but we disagree with the interpretation based

on this principle reached by the district court in Franklin.

The district court in Franklin concluded that the principle

of considering the statute’s context required “reference to

other aspects of the Immigration Reform and Control Act of

1986 (the ‘IRCA’).” Franklin, 2011 WL 3424448 at *5.

Again, we agree. The district court in Franklin then

reasoned, as follows:

Under IRCA § 101, 8 U.S.C. § 1324a, a

United States passport is “prescribed by

statute” as “evidence of authorized ...

employment.” 8 U.S.C. § 1324a(b)(1)(B)(i).

Under IRCA’s implementing regulations,

UNITED STATES V. THOMSEN 25

a United States passport is also “prescribed

by ... regulation” as “evidence of

authorized ... employment.” 8 C.F.R.

§ 274a.2(b)(1)(v)(A)(1). Thus, after giving

context to 18 U.S.C. § 1546(a) by examining

the IRCA’s relevant provisions, and after

considering other cases addressing similar

questions, the Court concludes that a United

States passport is within § 1546(a)’s reach as

an “other document prescribed by [both]

statute [and] regulation ... as evidence of

authorized ... employment.” Though the Court

superficially agrees with Franklin that

§ 1546(a) appears to apply only to alien-

related documents, no cannon [sic] of

statutory construction can undo what

Congress clearly did in the IRCA. For if

courts are instructed to look to IRCA § 101 to

determine the scope of § 1546, as so held by

the Eighth and Ninth Circuits, then Congress

has specifically spoken as to the types of

“other documents” covered by § 1546 and the

analysis stops with the text of the law.

Franklin, 2011 WL 3424448 at *7 (footnote omitted). It is

here that we believe the district court in Franklin went astray.

Even though “passports” are documents prescribed by

§ 1324a(b)(1)(B)(i) as evidence of authorized employment in

the United States, it does not necessarily follow that

§ 1546(a) applies to passports. We note that immigration-

related documents are also prescribed by § 1324a(b)(1) as

establishing both employment authorization and identity,

specifically, a “resident alien card, alien registration

26 UNITED STATES V. THOMSEN

card”—which are listed in § 1546(a)—“or other document

designated by the Attorney General” meeting certain

requirements. 8 U.S.C. § 1324(b)(1)(B)(ii) (emphasis added).

Immigration-related documents are also found among “other

documentation evidencing authorization of employment in

the United States which the Attorney General finds, by

regulation, to be acceptable for purposes of this section.”

8 U.S.C. § 1324a(b)(1)(C)(ii) (emphasis added); see, e.g.,

8 C.F.R. § 274a.12.

In short, where the canon ejusdem generis leads to the

conclusion that the general “other documents” clause is

limited to immigration-related documents, the relevant

context of the corpus juris of which § 1546(a) is a part

includes the provisions of § 1324a(1)(b) referring to

immigration-related documents. Furthermore, to the extent

that § 1546 echoes, not merely references, language from

§ 1324a(b)(1), it echoes the provisions specifically describing

immigration-related documents, 8 U.S.C. § 1324a(b)(1)(B)(ii)

and 8 U.S.C. § 1324a(b)(1)(C)(ii), not the provision

identifying “passports,” 8 U.S.C. § 1324a(b)(1)(B)(i).

Reference to the IRCA does not require an interpretation of

§ 1546(a) as applying to U.S. passports.

e. Summary

We hold that § 1546(a) does not apply to U.S. passports

or U.S. passport cards. Thus, the district court erred by

denying Thomsen’s motion for judgment of acquittal as to

Counts 33 and 34.11

11

Therefore, we do not reach Thomsen’s argument that the rule of lenity

applies. “The rule of lenity. . . applies only when, after consulting

traditional canons of statutory construction, we are left with an ambiguous

UNITED STATES V. THOMSEN 27

B. Restitution

Thomsen next contends that the district court improperly

included amounts from the dismissed case and made other

errors in determining the amount of restitution. This issue

has both legal and factual aspects.

1. Standard of review

We have explained,

We review a restitution order for “an abuse of

discretion, provided that it is within the

bounds of the statutory framework.” United

States v. Gordon, 393 F.3d 1044, 1051 (9th

Cir.2004) (internal quotation marks omitted).

“Factual findings supporting an order of

restitution are reviewed for clear error. The

legality of [the] order is reviewed de novo.”

statute.” United States v. Shabani, 513 U.S. 10, 17 (1994); Krstic,

558 F.3d at 1017 n.9. Here, the analysis, above, shows that we are not left

with an ambiguous statute, after correct application of the pertinent canons

of statutory construction. We acknowledge, however, that perhaps

ambiguity, like plain meaning and beauty, “is sometimes in the eye of the

beholder.” Florida Power & Light Co. v. United States Nuclear

Regulatory Comm’n, 470 U.S. 729, 737 (1985) (“Yet plain meaning, like

beauty, is sometimes in the eye of the beholder.”); Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 572 (2005) (Stevens, J., joined by

Breyer, J., dissenting) (“Because ambiguity is apparently in the eye of the

beholder, I remain convinced that it is unwise to treat the ambiguity vel

non of a statute as determinative of whether legislative history is

consulted.”). Any holding that the statute is ambiguous as to its

application to U.S. passports or U.S. passport cards would invoke the rule

of lenity and, likewise, require Thomsen’s acquittal of Counts 33 and 34.

28 UNITED STATES V. THOMSEN

Id. (internal quotation marks and ellipsis

omitted).

United States v. Inouye, ___ F.3d ___, ___, 2016 WL

2641109, at *2 (9th Cir. May 10, 2016). Thus, the proper

scope of the conduct on which restitution can be based is a

legal question; what conduct by Thomsen falls within that

scope is a question of fact.

2. Legality of the restitution order

a. Applicable standards

As to the legal question, it was once the case that a

defendant could be required to pay restitution only to the

victims of the offenses of which he was convicted, as

Thomsen now argues. See Hughey v. United States, 495 U.S.

411, 422 (1990) (“Petitioner pleaded guilty only to the charge

that he fraudulently used the credit card of Hershey Godfrey.

Because the restitution order encompassed losses stemming

from alleged fraudulent uses of cards issued to persons other

than Godfrey, such portions of the order are invalid.”).

Subsequently, however,

The portion of Hughey that limited restitution

to those losses caused by the actual offense of

conviction was abrogated by the 1990

amendments to section 3663. Section 3663

now provides that if the offense of conviction

involves a scheme, conspiracy, or pattern of

conduct, restitution may include all losses

caused during the course of that scheme,

conspiracy or pattern. See 18 U.S.C.

§ 3663(a)(2) (Supp. V 1999). The Hughey

UNITED STATES V. THOMSEN 29

rule still applies, however, where the

defendant has not been convicted of an

offense having a conspiracy, scheme or

pattern of conduct as an element. United

States v. Lawrence, 189 F.3d 838, 846 (9th

Cir.1999). In addition, even under section

3663(a)(2)’s current expanded definition, a

victim must be “directly harmed by the

defendant’s criminal conduct.” 18 U.S.C.

§ 3663(a)(2) (Supp. V 1999).

United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 927

n.10 (9th Cir. 2001); accord United States v. Brock-Davis,

504 F.3d 991, 998–99 (9th Cir. 2007) (also recognizing the

amendments abrogating Hughey also abrogated circuit case

law that restitution must be limited to the loss attributable to

the specific conduct underlying the conviction).12

12

Section 3663(a)(2) provides, in pertinent part, as follows:

(2) For the purposes of this section, the term “victim”

means a person directly and proximately harmed as a

result of the commission of an offense for which

restitution may be ordered including, in the case of an

offense that involves as an element a scheme,

conspiracy, or pattern of criminal activity, any person

directly harmed by the defendant’s criminal conduct in

the course of the scheme, conspiracy, or pattern.

18 U.S.C. § 3663(a)(2) (emphasis added). The pertinent parts of

§ 3663(a)(2) and § 3663A(a)(2), the statute applicable here, are identical,

as will be seen from the quotation of the latter statute in the body.

30 UNITED STATES V. THOMSEN

We have explained,

The Mandatory Victims Restitution Act

(“MVRA”), 18 U.S.C. § 3663A, requires a

district court to “order a defendant to make

restitution to a victim of certain specified

offenses.” United States v. Anderson,

741 F.3d 938, 951 (9th Cir.2013) (citation

omitted). The amount of restitution is limited

to the victim’s “actual losses” that are a direct

and proximate result of the defendant’s

offense. United States v. Hunter, 618 F.3d

1062, 1064 (9th Cir.2010).

United States v. Eyraud, 809 F.3d 462, 467 (9th Cir. 2015).

Restitution is mandatory, pursuant to § 3663A(a)(1) for “an

offense described in subsection (c),” which includes “an

offense against property under this title, . . . including any

offense committed by fraud or deceit.” 18 U.S.C.

§ 3663A(c)(1)(A)(ii).

Restitution is mandatory in this case, because we have

recognized that § 3663A(c)(1)(A)(ii) applies to mail fraud, as

prohibited by 18 U.S.C. § 1341, United States v. Grice,

319 F.3d 1174, 1177 (9th Cir. 2003), and Thomsen was

convicted of several mail fraud offenses (Counts 1 through 4).

Similarly, other courts have held that, because they are

offenses under Title 18, convictions on charges of false

claims for tax refunds, in violation of 18 U.S.C. § 287, like

Thomsen’s convictions on Counts 7 through 16, and

convictions on charges of identity theft, in violation of

18 U.S.C. § 1028A, like Thomsen’s convictions on Counts 25

through 32 and 34, also fall under § 3663A(c)(1)(A)(ii). See

United States v. Cohan, 798 F.3d 84, 89 (2d Cir. 2015)

UNITED STATES V. THOMSEN 31

(§ 1028A); United States v. Blanchard, 616 F.3d 562, 577

(6th Cir. 2010) (§ 287).

Under the mandatory restitution provision,

(2) For the purposes of this section, the term

“victim” means a person directly and

proximately harmed as a result of the

commission of an offense for which

restitution may be ordered including, in the

case of an offense that involves as an element

a scheme, conspiracy, or pattern of criminal

activity, any person directly harmed by the

defendant’s criminal conduct in the course of

the scheme, conspiracy, or pattern.

18 U.S.C. § 3663A(a)(2) (emphasis added). For a fraud

offense, the district court is required to order restitution in the

amount of the victim’s actual loss. 18 U.S.C.

§§ 3663A(c)(1)(A)(ii), 3664(f)(1)(A).

More specifically, in the case of a conviction for a crime

or crimes that require proof of a “scheme, conspiracy, or

pattern of criminal activity,” such as mail fraud,13

13

The elements of mail fraud are the following: “(1) proof of a scheme

to defraud, (2) using the mails . . . to further the fraudulent scheme, and

(3) specific intent to defraud.” United States v. French, 748 F.3d 922, 935

(9th Cir. 2014) (citing 18 U.S.C. § 1341). The other Title 18 offenses of

which Thomsen was convicted do not have a “scheme, pattern, or

conspiracy” element. See, e.g., United States v. Atalig, 502 F.3d 1063,

1067 (9th Cir. 2007) (elements of false claims under § 287); United States

v. Osuna-Alvarez, 788 F.3d 1183, 1185 (9th Cir. 2015) (elements of

aggravated identity theft under § 1028A). In a conspiracy case, restitution

may be ordered against each defendant to the extent that the victim’s

32 UNITED STATES V. THOMSEN

restitution may be ordered for all persons

directly harmed by the entire scheme. Such

restitution is not limited to harm caused by the

particular counts of conviction (as it would be

absent the scheme element). See United States

v. Booth, 309 F.3d 566, 575–76 (9th

Cir.2002). In this context, a restitution order

may be based on related but uncharged

conduct that is part of a fraud scheme. See

United States v. Grice, 319 F.3d 1174, 1177

(9th Cir.2003) (affirming restitution of loss

from uncharged conduct beginning prior to

the effective date of the MVRA). The harm to

the victim must, however, be closely related to

the scheme, rather than tangentially linked.

United States v. Riley, 143 F.3d 1289, 1292

(9th Cir.1998) (quoting United States v.

Kones, 77 F.3d 66, 70 (3rd Cir.1996)); see

also [United States v.] Gamma Tech Indus.,

265 F.3d [917,] 928 [(9th Cir. 2001)] (“the

loss cannot be too far removed from” the

“conduct underlying the offense of

conviction”).

In re Her Majesty the Queen in Right of Canada, 785 F.3d

1273, 1276 (9th Cir. 2015) (emphasis added). “In other

words, ‘when the crime of conviction includes a scheme,

conspiracy, or pattern of criminal activity as an element of the

losses were reasonably foreseeable to that defendant. United States v.

Riley, 335 F.3d 919, 932 (9th Cir. 2003). Thomsen was not charged with

or convicted of a conspiracy offense in the first case, however. Although

a conspiracy offense was charged in the second case, Thomsen was not

convicted of any offenses in the second case.

UNITED STATES V. THOMSEN 33

offense, . . . the restitution order [may] include acts of related

conduct for which the defendant was not convicted.’” Brock-

Davis, 504 F.3d at 999 (quoting United States v. Lawrence,

189 F.3d 838, 846–47 (9th Cir. 1997), with emphasis added);

accord Grice, 319 F.3d at 1178 (“[P]ermitting restitution

under the MVRA for related, but uncharged mail fraud

conduct occurring prior to and continuing past the MVRA’s

enactment is consistent with the text of the statute and related

authority.” (emphasis added)).

b. Analysis

Here, the district court did not err, as a matter of law, in

concluding that awarding restitution for related conduct

beyond the conduct for which Thomsen was specifically

convicted was within statutory bounds. Inouye, ___ F.3d at

___, 2016 WL 2641109 at *2. This is so, because

(1) Thomsen was convicted of mail fraud offenses, which

required proof of a “scheme” element, see French, 748 F.3d

at 935, and (2) pursuant to § 3663A(a)(2), restitution for such

offenses is not limited to harm caused by the particular counts

of conviction, but may be based on related, uncharged

conduct that is part of a fraud scheme, see In re Her Majesty,

785 F.3d at 1276; Brock-Davis, 504 F.3d at 999; Grice,

319 F.3d at 1178.

3. The disputed factual question

a. Applicable standards

The disputed factual question, here, is whether the district

court properly found that all of the losses alleged by the

United States as the basis for restitution, including losses

from conduct charged only in the second case, were losses

34 UNITED STATES V. THOMSEN

from “related conduct.” See In re Her Majesty, 785 F.3d at

1276.14 “[T]he government [must] prove[] the amount of loss

and causation by a preponderance of the evidence.” Eyraud,

809 F.3d at 467. Thomsen’s challenge to those factual

findings stands on much firmer ground than his challenge to

the legal scope of restitution.

To prove the necessary close relationship to the scheme

of conviction, it is not enough to show another fraud against

the victim that had “aspects in common with the scheme” of

conviction, or even to show that both frauds were “built upon

the same central falsity.” In re Her Majesty, 785 F.3d at

1276. Rather, there must be a “causal” link between the two,

and that link may be lacking where the fraud against the

victim and the fraud scheme of conviction “were

accomplished by different means, had different victims, and

took place primarily in different [locations].” Id. at 1276–77.

To put it another way, the fraud against the victim must not

be “linked too tangentially to be part of the same ‘scheme,

conspiracy, or pattern of criminal activity.’” Id. at 1277

(quoting § 3663A(a)(2)).

Applying these standards, we rejected Canada’s

restitution claim based on the biofuel subsidy fraud

committed by the owners of a Canadian plant, while awarding

14

The key question is not whether the United States proved that various

amounts of loss were caused by Thomsen’s conduct, including his conduct

in the second case, as the United States would have it. One might agree

with the United States and the district court that the United States proved

by a preponderance of the evidence, or even beyond a reasonable doubt,

that all of the losses at issue were caused by Thomsen’s conduct charged

in either the first or the second case. The question of the adequacy of

proof of particular losses, however, is only relevant if those losses arose

from conduct sufficiently closely “related” to the scheme of conviction.

UNITED STATES V. THOMSEN 35

restitution to the United States for fraudulent use of biodiesel

credits, explaining the schemes were parallel, but different:

The schemes [one involving Canada and

one leading to conviction], however, were

different. The indictment charged, and the

facts supporting the guilty plea described, a

scheme revolving around the false generation

and use of United States biodiesel credits

known as renewable identification numbers

(“RINs”). It appears that the RIN fraud in the

United States and the biofuel subsidy fraud in

Canada proceeded on parallel tracks. But they

were not causally linked. The record does not

reflect that either country considered the

other’s renewable energy program in

calculating its own incentives. The schemes

were accomplished by different means, had

different victims, and took place primarily in

different countries. They were linked too

tangentially to be part of the same “scheme,

conspiracy, or pattern of criminal activity.”

18 U.S.C. § 3663A(a)(2).

In re Her Majesty, 785 F.3d at 1276–77 (footnote omitted).

In contrast, the necessary “relatedness” was shown in

Brock-Davis, which involved a conviction for conspiracy to

manufacture methamphetamine in Missoula, Montana.

504 F.3d at 998. The defendant challenged the award of

restitution for damage to and clean up of a motel room in

Kalispell, Montana, even though there was, at least arguably,

no proven methamphetamine manufacturing in that motel

room, and nothing in the indictment or the plea hearing

36 UNITED STATES V. THOMSEN

mentioned Kalispell, that motel, or its owner. Id. We

explained why the loss for the Kalispell motel room was

sufficiently “related” to the conspiracy of conviction to

permit a restitution award, as follows:

Even were the law of restitution not more

expansive for convictions for conspiracy than

for other crimes, the district court would not

have committed clear error in finding that the

same conspiracy was at issue in Missoula and

Kalispell. The evidence disclosed the

existence of two partial meth labs (in the first

hotel room [in Missoula] and in Room 107 [of

the Kalispell motel]) being created by Brock-

Davis and Willingham at the same time—with

one room containing the microwave and the

other containing the microwave box—and

items in the trunk of the car in which Brock-

Davis and Willingham were apprehended that

would have supplemented either lab (or even

have constituted the lab itself) at the motels

Brock-Davis and Willingham chose. In

addition, Willingham pointed the police to the

Aero Inn in Kalispell after his arrest, and

Brock-Davis had checked into that

room—which contained evidence consistent

with the existence of a meth lab, as even [a]

defense witness . . . acknowledged.

Brock-Davis, 504 F.3d at 999 (emphasis added).

Similarly, in Grice, which involved mail fraud

convictions, we held that losses from before the date of the

defendant’s first mail fraud offense were properly included in

UNITED STATES V. THOMSEN 37

the restitution order. 319 F.3d at 1178. In Grice, the

defendant directed delivery to herself of dividend checks

payable to her son by filing change-of-address forms, and she

cashed those checks even after her son’s eighteenth birthday

when she was no longer entitled to do so. Id. at 1176, 1178.

Her first mail fraud offense, however, was four years after her

son turned eighteen, and she argued that, prior to that, the

checks just kept coming to her after it became illegal to cash

them, so they were not part of the mail fraud scheme. Id. at

1178. We disagreed:

The checks Grice cashed illegally were

delivered to her address solely because of the

eleven change of address forms she filed prior

to William’s eighteenth birthday. Her modus

operandi was identical throughout the entire

period of the scheme she devised. When CIRI

sent William a letter informing William of his

adult status in the corporation, Grice failed to

inform CIRI that William was not living at

her address. Grice knew CIRI would continue

to send William’s checks to her address where

she could forge and cash them, knowing it

was illegal to do so. By filing eleven change

of address forms and then failing to inform

CIRI that William no longer lived at her

address, Grice “made use of or caused the use

of the mails” in furtherance of her scheme.

[United States v.] Lo, 231 F.3d [471,] 475

[(9th Cir. 2000)]. Accordingly, we conclude

that Grice’s scheme extended back to October

38 UNITED STATES V. THOMSEN

1988 and the district court properly included

the disputed $7,535.07 in its restitution order.

Grice, 504 F.3d at 1178–79.

b. Analysis

Here, as Thomsen points out, the United States repeatedly

refers to his “multi-year fraudulent scheme” in its brief, but

nowhere identifies evidence establishing—or identified by the

district court as the basis for a finding—that the scheme

charged in the second case, in which Thomsen was not

convicted, was, in fact, the same scheme as, or was related to,

the scheme charged in the first case, in which Thomsen was

convicted. At most, the United States has shown that both

schemes were designed to obtain tax refunds by fraud and

that Thomsen was involved in both of them. That is not

enough. See In re Her Majesty, 785 F.3d at 1276 (sufficient

“relatedness” is not shown simply from the fact that the

claimed loss had “aspects in common with the scheme” of

conviction, or even that both had been “built upon the same

central falsity”). As in In re Her Majesty, the losses in the

first and second cases against Thomsen “were accomplished

by different means, had different victims, and took place

primarily in different [locations],” id. at 1276–77; and cf.

Grice, 504 F.3d at 1178–79 (finding that the fraud for which

restitution was sought was conducted by the same modus

operandi), and, here, also during different time frames, cf.

Brock-Davis, 504 F.3d at 999 (conduct not mentioned in the

indictment was related, for purposes of restitution, because it

was not only of the same kind and involved the same

participants, but was at the same time).

UNITED STATES V. THOMSEN 39

Specifically, the frauds in the first case against Thomsen

were accomplished by Thomsen himself, acting alone,

apparently all in California, using the mails, while the frauds

charged in the second case involved different victims, were

accomplished by wire fraud, and involved at least three other

co-defendants working in multiple states. As originally

charged, the second case did not involve any of the same

offenses as those charged in the first case. There is

undeniably some relationship between a § 286 offense of

conspiracy to obtain payment of false claims, as charged in

the second case, and the substantive § 287 offense of actually

making a false claim, as charged in the first case.

Nevertheless, the difference between a conspiracy, involving

multiple co-defendants to accomplish the fraud, and a

substantive offense, involving a single person from start to

finish, actually highlights the difference in the modus

operandi of the false claim offenses in the two cases. Cf.

Grice, 504 F.3d at 1178–79 (noting the use of an identical

modus operandi to commit the offenses for which restitution

was sought and the offense of conviction). The allegation

that the conspiracies in the second case began on “unknown”

dates does nothing to tie the earlier and later offenses together

in the absence of any evidence of actual temporal overlap.

Cf. Brock-Davis, 504 F.3d at 999 (conduct not mentioned in

the indictment was related, for purposes of restitution,

because it was shown by the evidence to be at the same

time).15

15

The government’s contention that tax fraud is necessarily seasonal or

cyclical does not convince us that the lack of temporal overlap should be

ignored, especially where the personnel (other than Thomsen) and the

modus operandi involved did not overlap.

40 UNITED STATES V. THOMSEN

The addition of charges of aggravated identity theft, in

violation of 18 U.S.C. § 1028A, in the Superseding

Indictment in the second case, based on filing of tax returns,

which are similar to such charges in the first case, does not

create sufficient “linkage” between the earlier and later

conduct. Section 1028A offenses do not involve proof of a

“scheme” as an element, so that restitution based on those

offenses would be appropriate only for conduct resulting in

convictions. See Gamma Tech Indus., Inc., 265 F.3d at 927

n.10. Finally, the time frame and the dates of the overt acts

in furtherance of the original conspiracy charged in the

second case (and, indeed, the overt acts in furtherance of the

additional wire fraud conspiracy added later) do not involve

any temporal overlap at all with the dates of the offenses

charged in the first case. Compare Brock-Davis, 504 F.3d at

999 (conduct not mentioned in the indictment was related, for

purposes of restitution, because it was not only of the same

kind and involved the same participants, but was at the same

time).

In short, the district court clearly erred in holding that the

conduct at issue in the second case was sufficiently “related”

to the conduct at issue in the first case to warrant inclusion of

losses in the second case in the order for restitution pursuant

to 18 U.S.C. § 3663A(a)(2). See Inouye, ___ F.3d at ___,

2016 WL 2641109 at *2 (factual findings for restitution are

reviewed for clear error). Consequently, although ordering

restitution for related conduct that did not result in a

conviction was within “statutory bounds,” the order for

restitution, here, was an abuse of discretion. Id.16

16

In briefing on the asserted sentencing errors, Thomsen challenges the

inclusion of certain amounts in the restitution order, as without evidentiary

basis, including amounts that were shown to be related to the scheme of

UNITED STATES V. THOMSEN 41

C. Sentencing Errors

Thomsen argues the district court erred in calculating

Thomsen’s advisory guidelines sentence. He asserts the

following alleged sentencing errors: (1) use of the wrong

Guidelines Manual; (2) miscalculation of the “intended loss”;

(3) misapplication of the “identity theft” enhancement;

(4) misapplication of the “sophisticated means” enhancement;

(5) misapplication of the U.S.S.G. § 2L2.2(c)(1)(A) cross-

reference to U.S.S.G. § 2X1.1; (6) misapplication of the

“abuse of trust” enhancement; and (7) misapplication of the

“obstruction of justice” enhancement.17

1. Applicable standards

“The district court must correctly calculate the

recommended Guidelines sentence” before sentencing a

defendant. United States v. Hymas, 780 F.3d 1285, 1292 (9th

Cir. 2015) (brackets and citation omitted); accord United

States v. Bernardo, 818 F.3d 983, 985 (9th Cir. 2016) (“‘Even

though the Guidelines are advisory, they are still the “starting

conviction in the first case. We will consider those challenges in the next

section.

17

We note the Addendum did little to assist the trial court in determining

the merits of the parties’ objections. Rather than discussing and offering

reasoned resolutions to the numerous objections, the Addendum did little

more than repeatedly invoke the mantra, “The undersigned stands by [his

original determination].” As to one of Thomsen’s critical guidelines

disputes, concerning the amount of restitution, the Addendum claims that

“[t]hese objections have been addressed in the undersigned’s response to

the government’s guideline disputes.” This response is unhelpful, because

the probation officer’s response to the pertinent guideline dispute by the

government is that “the overall matter of relevant conduct is deferred to

the Court for resolution.” See Addendum at 6, ¶ 3 & 6.

42 UNITED STATES V. THOMSEN

point and the initial benchmark” for the sentencing process.’”

(quoting United States v. Ellis, 641 F.3d 411, 415 (9th Cir.

2011), in turn quoting Kimbrough v. United States, 552 U.S.

85, 108 (2007)). More specifically, “we ‘must first ensure

that the district court committed no significant procedural

error, such as failing to calculate (or improperly calculating)

the Guidelines range.’” Bernardo, 818 F.3d at 985 (quoting

Gall v. United States, 552 U.S. 38, 51 (2007)); United States

v. Johnson, 812 F.3d 757, 761 (9th Cir. 2016) (adding to the

list of procedural errors “‘treating the Guidelines as

mandatory, failing to properly consider the [18 U.S.C.]

§ 3553(a) factors, using clearly erroneous facts when

calculating the Guidelines range or determining the sentence,

and failing to provide an adequate explanation for the

sentence imposed’” (quoting United States v. Christensen,

732 F.3d 1094, 1100 (9th Cir. 2013)). In doing so,

[w]e review the district court’s factual

findings for clear error and its interpretation

of the Sentencing Guidelines de novo. United

States v. Smith, 719 F.3d 1120, 1123 (9th

Cir.2013). There is a longstanding intracircuit

conflict as to whether we review the district

court’s application of the guidelines to the

facts de novo or for abuse of discretion,

United States v. Sullivan, 797 F.3d 623, 641 n.

13 (9th Cir.2015), but [if] we would reach the

same conclusion here under either standard,

we need not call this case en banc to resolve

the conflict.

Bernardo, 818 F.3d at 985.

UNITED STATES V. THOMSEN 43

2. Alleged errors

a. The wrong Guidelines Manual

Thomsen challenges the calculation of the number of

victims under U.S.S.G. § 2B1.1(b)(2)(C) from the 2011

Guidelines Manual. He argues that version of the guideline

was first included in the 2009 Guidelines Manual, effective

November 1, 2009. Thus, he argues, it was not in effect at

the time of the offenses for which he was convicted, causing

an ex post facto violation. He argues that the only proper

“victim” is the IRS under the correct, 2008, version of the

guidelines. The United States concedes that the wrong

version of U.S.S.G. § 2B1.1(b)(2)(C) was used and that this

error requires remand to resolve the determination of the

number of victims. We agree.

A district court properly applies the version of the

Sentencing Guidelines in effect at the time of sentencing,

unless doing so would violate the ex post facto clause.

U.S.S.G. §§ 1B1.11(a), (b)(1). “To implicate ex post facto

concerns, amendments to the Sentencing Guidelines must

present ‘a sufficient risk of increasing the measure of

punishment attached to the covered crimes.’” United States

v. Waters, 771 F.3d 679, 680 (9th Cir. 2014) (quoting Peugh

v. United States, ___ U.S. ___, ___, 133 S. Ct. 2072, 2082

(2013)). There is little doubt that use of the “wrong” version

of U.S.S.G. § 2B1.1(b)(2) in this case resulted in “‘a

sufficient risk of increasing the measure of punishment’” for

Thomsen’s convictions to raise an ex post facto problem. Id.

(quoting Peugh, ___ U.S. at ___, 133 S. Ct. at 2082). Here,

the “wrong” version of the applicable guideline increased

Thomsen’s advisory guidelines range by six levels; the

United States does not argue that it is clear that the district

44 UNITED STATES V. THOMSEN

court would have applied the same sentence under the older

guideline, but rather concedes that remand is appropriate; and

the only other Circuit Court of Appeals to consider whether

the amendment of this guideline violated the ex post facto

clause under the Peugh standard also reversed for

resentencing. See United States v. Diaz, 515 F. App’x 595,

595–96 (7th Cir. 2013) (unpubl. mem.).

Upon remand, the district court must correct the ex post

facto violation. Moreover, the commentary to § 1B1.11

provides that “if an earlier edition of the Guidelines Manual

is used, it is to be used in its entirety, except that subsequent

clarifying amendments are to be considered.” U.S.S.G.

§ 1B1.11, cmt. n.1 (2008 & 2015). Thus, the correct

Guidelines Manual for Thomsen’s entire resentencing, on

remand, is the 2008 version.

b. “Intended loss”

Thomsen claims the district court incorrectly calculated

“intended loss” under U.S.S.G. § 2B1.1(b)(1). U.S.S.G.

§ 2B1.1(a)(1) provides for level increases for losses

exceeding certain amounts in, inter alia, fraud cases. See

United States v. Gonzalez Becerra, 784 F.3d 514, 516 n.2 (9th

Cir. 2015) (“U.S.S.G. § 2B1.1(b)(1) sets out a schedule in

which greater amounts of actual or intended monetary losses

are coupled with correspondingly greater increases to a

defendant’s offense level.”). A district court’s method of

calculating loss under the guidelines is reviewed de novo, and

the determination of the loss amount is reviewed for clear

error. United States v. Aubrey, 800 F.3d 1115, 1132 (9th Cir.

2015); United States v. Del Toro-Barboza, 673 F.3d 1136,

1153–54 (9th Cir. 2012). A district court must make “a

reasonable estimate of the loss based on available

UNITED STATES V. THOMSEN 45

information.” United States v. Zolp, 479 F.3d 715, 719 (9th

Cir. 2007).

U.S.S.G. § 2B1.1(a)(1), cmt. n.3(A)(i)–(ii) (2008),

explains that “loss is the greater of actual loss and intended

loss” and how each kind of loss is determined. More

importantly, here, when calculating loss amounts, the district

court is allowed to consider all relevant conduct that is “part

of the same course of conduct or common scheme or plan as

the offense of conviction.” U.S.S.G. § 1B1.3(a)(2) (2008);

United States v. Newbert, 952 F.2d 281, 284 (9th Cir. 1991).

This allows the court to include charged, uncharged, and even

acquitted conduct in the determination of loss. United States

v. May, 706 F.3d 1209, 1213 (9th Cir. 2013).

The primary flaw with the “intended loss” finding, here,

is that the district court improperly considered the intended

loss from the second case, which did not result in Thomsen’s

conviction, even though the second case did not involve

“relevant conduct,” because it was not “part of the same

course of conduct or common scheme or plan as the offense

of conviction.” U.S.S.G. § 1B1.3(a)(2) (2008). Furthermore,

the United States nowhere identifies evidence establishing—

or identified by the district court as the basis for a finding—

that specific challenged amounts of intended loss in the first

case were, in fact, actual or intended losses. While there is

copious evidence of some association between Thomsen and

most of the allegedly fraudulent tax refunds claimed, that is

not the same as copious evidence that each such refund, in

fact, resulted in an actual or intended loss to the IRS. Under

the circumstances, it is difficult to tell what the evidentiary

basis for the $425,117 intended loss might be, beyond the

prosecutor’s statements to the probation officer. It is

possible, however, to conclude that the district court clearly

46 UNITED STATES V. THOMSEN

erred in determining the amount of intended loss. Aubrey,

800 F.3d at 1132.

Upon remand, the district court should make factual

findings supporting the amount of intended loss and apply the

appropriate enhancement pursuant to U.S.S.G. § 2B1.1(a)(1)

(2008).

c. The “identity theft” enhancement

Next, Thomsen argues that the district court erroneously

applied the identity theft specific offense characteristic under

U.S.S.G. § 2B1.1(b)(11)(C) (2008). We agree. The only

basis on which the Addendum recommended a two-level

enhancement pursuant to U.S.S.G. § 2B1.1(b)(11) (2008) was

pursuant to U.S.S.G. § 2B1.1(b)(11)(C)(i) (2008), as follows:

The defendant used SSNs of others to file

false tax returns and to obtain fraudulent tax

refunds. He also [used] his victim’s [sic]

SSNs to produce other means of

identification, namely personal tax returns.

Addendum at 7 (emphasis in the original).18 The pertinent

part of the applicable guideline in the 2008 Manual is

U.S.S.G. § 2B1.1(b)(10) (2008), which provides, as follows:

(11) If the offense involved . . . (C)(i) the

unauthorized transfer or use of any means of

18

The prosecution argues that the enhancement is proper on a variety of

other grounds, but has not identified any part of the record hinting that the

district court imposed a U.S.S.G. § 2B1.1(b)(11) (2008) enhancement on

any other ground.

UNITED STATES V. THOMSEN 47

identification unlawfully to produce or obtain

any other means of identification. . . increase

by 2 levels. If the resulting offense level is

less than level 12, increase to level 12.

U.S.S.G. § 2B1.1(b)(10)(C)(i) (2008). Application Note 9 to

the 2008 version of this guideline defines “means of

identification” for purposes of this guideline, as that term is

defined 18 U.S.C. 1028(d)(7), with certain limitations.

U.S.S.G. § 2B1.1, cmt. n.9 (2008). “Personal tax returns” are

conspicuous by their absence from the list of “means of

identification” in 18 U.S.C. § 1028(d)(7). The United States

has not cited, and we have not found, any decision of this

court or any other Circuit Court of Appeals holding that “tax

returns” are “means of identification” within the meaning of

either 18 U.S.C. § 1028(d)(7) or any version of U.S.S.G.

§ 2B1.1(b)(10)(C)(i) (now U.S.S.G. § 2B1.1(b)(11)(C)(i)).19

Thus, the “identity theft” enhancement pursuant to

U.S.S.G. § 2B1.1(b)(10)(C)(i) (2008) was improperly

imposed.20

19

Indeed, what case law we have found is to the contrary. See United

States v. White, 571 F. App’x 20, 26 (2d Cir. 2014) (summary order)

(holding that, where the defendant was convicted of using others’

identifications to file false tax returns and to receive refunds, the district

court did not find, nor did the PSR state, that using others’ identifications

to file a false return and receive a refund involved obtaining another

means of identification within the meaning of U.S.S.G.

§ 2B1.1(b)(11)(C)(i)).

20

Because we remand for resentencing, we need not address Thomsen’s

“double-counting” argument.

48 UNITED STATES V. THOMSEN

d. The “sophisticated means” enhancement

Thomsen also claims the district court incorrectly applied

the “sophisticated means” enhancement, U.S.S.G.

§ 2B1.1(b)(9)(C) (2008).21 We disagree. Here, as in United

States v. Augare, 800 F.3d 1173, 1175–76 (9th Cir. 2015),

Thomsen used “coordinated and repetitive steps” to effect his

fraudulent scheme, comparable in “sophistication” to

schemes held to warrant the enhancement. Id. Indeed, his

scheme involved “dozens of various acts,” including

falsifying tax returns and checks, to conceal his false claims,

cf. United States v. Tanke, 743 F.3d 1296, 1307 (9th Cir.

2014); using a bank account with a deceptive name to conceal

income, which warranted the enhancement, even if the

scheme was not “highly complex” and did not “exhibit

exceptional brilliance,” cf. United States v. Jennings,

711 F.3d 1144, 1145 (9th Cir. 2013); and even involved

falsification of documents and left a “complicated and

fabricated” paper trail to hide his fraud, cf. United States v.

Horob, 735 F.3d 866, 872 (9th Cir. 2013) (per curiam). The

district court properly imposed this enhancement.

e. The cross-reference

Next, Thomsen appeals the application of the U.S.S.G.

§ 2L2.2(c)(1)(A) cross-reference to U.S.S.G. § 2X1.1. This

cross-reference resulted in the same base offense level and

the same enhancements pursuant to U.S.S.G. § 2B1.1 for his

21

Thomsen cites U.S.S.G. § 2B1.1(b)(9)(C) from the 2008 Guidelines

Manual as the basis for this challenge. Although he concedes that there

is no difference between the 2008 Guidelines and the 2013 Guidelines as

to this or other aspects of his appeal, we noted, above, that the correct

Guidelines Manual for Thomsen’s entire resentencing is the 2008 version.

UNITED STATES V. THOMSEN 49

Group Two offense (Count 33) as for his Group One offenses

(Counts 1–4, 7–16, and 17–24). Because we have vacated

Thomsen’s conviction on Count 33, the only count in Group

Two, no cross-reference is applicable. The district court must

recalculate the sentence upon remand.

f. The “abuse of trust” enhancement

Thomsen’s penultimate ground for appeal is that the

application of the U.S.S.G. § 3B1.3 enhancement for “abuse

of trust” was plain error. We disagree.

Thomsen is correct that the only basis on which the

probation officer recommended the two-level enhancement

for “abuse of trust” pursuant to U.S.S.G. § 3B1.3 (for both

groups of offenses) was that “the defendant was a tax

preparer, who was entrusted with the personal information of

others, which he used for his own financial gain,” which the

probation officer believed “constitute[d] an abuse of a

position of trust.” We have repeatedly held that, “‘[t]o

support the abuse of trust enhancement, “a position of trust

. . . must be established from the perspective of the victim.”’”

United States v. Technic Servs., Inc., 314 F.3d 1031, 1048

(9th Cir. 2002) (quoting United States v. Brickey, 289 F.3d

1144, 1154 (9th Cir. 2002), in turn quoting United States v.

Hill, 915 F.2d 502, 506 n.3 (9th Cir. 1990)), overruled on

other grounds by United States v. Contreras, 593 F.3d 1135,

1136 (9th Cir. 2010) (en banc) (per curiam); see also United

States v. White, 270 F.3d 356, 371 (6th Cir. 2001) (“The

abuse-of-trust enhancement may only be applied where the

defendant abused a position of trust with the victim of his

charged conduct.”). Where Thomsen goes astray is in his

assertion that the only “victim” in question is the IRS.

50 UNITED STATES V. THOMSEN

We have recognized that “victims of fraud are not limited

to the entities that bear the ultimate financial burden, but also

include those who bear emotional, financial and other

burdens.” United States v. Peyton, 353 F.3d 1080, 1091 (9th

Cir. 2003) (concluding that American Express was not the

only “victim” of a U.S. Postal Service supervisor who falsely

procured American Express credit cards in the names of co-

workers, but also those people named on the credit cards who

were injured, because their credit histories were adversely

affected). There was no plain error in application of the

“abuse of trust” enhancement, here, where persons in whose

names Thomsen filed fraudulent tax returns by using personal

information provided to him in his employment as a tax

preparer were subjected to emotional and other burdens as a

result of his conduct. Thus, the district court properly applied

the “abuse of trust” enhancement.

g. The “obstruction of justice” enhancement

Thomsen lastly asserts that the district court erroneously

applied a two-level enhancement for “obstruction of justice”

under U.S.S.G. § 3C1.1. We disagree.

The Supreme Court has observed that, when applying an

enhancement for “obstruction of justice” pursuant to U.S.S.G.

§ 3C1.1 for committing perjury, “it is preferable for a district

court to address each element of the alleged perjury in a

separate and clear finding,” but “[t]he district court’s

determination that enhancement is required is sufficient . . .

if, as was the case here, the court makes a finding of an

obstruction of, or impediment to, justice that encompasses all

of the factual predicates for a finding of perjury.” United

States v. Dunnigan, 507 U.S. 87, 95 (1993). Here, the district

judge’s findings in support of the “obstruction of justice”

UNITED STATES V. THOMSEN 51

enhancement based on Thomsen’s false testimony

encompassed not only falsity of the testimony and obstruction

of justice, but other elements. See id. at 94 (stating the

elements of perjury). The district judge encompassed intent

to provide false testimony when he told Thomsen that he

“d[idn’t] understand how someone who can be this smart, this

smart, could come up with the stories that you came up with

while you were on the witness stand” to attempt to exonerate

himself. His findings also encompassed materiality, because

he found that the false testimony was intended to suggest that

Thomsen was not the person who committed the offenses.

Thus, the district court did not err in imposing this

enhancement.

D. Scope Of The Record On Remand

During oral argument, we requested that the United States

confer with counsel for Thomsen about the scope of evidence

that the district court may consider, on any remand, as to the

number of victims under the 2008 Guidelines Manual. We

have been notified that the parties have conferred and jointly

agree that the record on remand as to the number of victims

will be limited to the following: (1) the current record before

the district court; (2) one additional government witness who

will testify based upon the existing record; and (3) a summary

chart that the witness may use to aid in his/her testimony. We

find that the parties’ request is reasonable, and grant it. See,

e.g., United States v. Matthews, 278 F.3d 880, 889 (9th Cir.

2002) (“[W]e conclude that there is no reason to limit the

district court’s authority to explore fully a factual issue at

resentencing simply because it failed to do so during the first

proceeding as a result of an erroneous legal ruling.”). The

record on remand shall be limited accordingly.

52 UNITED STATES V. THOMSEN

III. CONCLUSION

We reverse the district court’s denial of Thomsen’s

Motion For Judgment Of Acquittal as to Counts 33 and 34,

and vacate those convictions. We reverse the order of

restitution and sentence of incarceration, and remand for

redetermination of both.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.