Argued and Submitted December 5, 2012—Pasadena, California
Appeal from the United States District Court for the Central District of California, D.C. No. 8:11-cr-00024-ODW-1 Otis D. Wright, II, District Judge, Presiding
Gene D. Vorobyov, Law Office of Gene Vorobyov, San Francisco, California, for Defendant-Appellant.
Robert J. Keenan (argued), Assistant United States Attorney; André Birotte, Jr., United States Attorney; Robert E. Dugdale, Assistant United States Attorney, Santa Ana, California, for Plaintiff-Appellee.
Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and Jennifer G. Zipps, District Judge. [*]
Affirming a criminal judgment entered following the defendant's guilty plea to mail fraud and wire fraud, the panel disagreed with the defendant that the government breached the plea agreement by tacitly urging the district court to impose a sentence above the agreed-to recommendation.
The panel held that because the sentence outside of the Sentencing Guidelines range was the result of a variance and not a departure, Fed. R. Crim. P. 32(h) did not require the district court to give notice.
The panel held that the defendant failed to establish (1) that the district court erred by failing to sua sponte determine the sufficiency and reliability of statements proffered by the government in support of restitution for newly-discovered victims, or (2) that if such error occurred, it was sufficient to undermine confidence in the outcome of the proceedings.
The panel held that the district court properly exercised its discretion in imposing a special condition of supervised release requiring that the defendant apply all monies received to his court-ordered financial obligations. The panel disagreed with the defendant that 18 U.S.C. § 3664(n) authorizes a court to impose a condition of this nature only during incarceration.
ZIPPS, District Judge:
Defendant Ronald Dean Moschella pleaded guilty to five counts of mail fraud and two counts of wire fraud, in violation of 18 U.S.C. §§ 1341 and 1343. He was subsequently sentenced to 63 months' imprisonment and 3 years' supervised release. On appeal, Defendant claims: (1) the government breached the plea agreement by arguments it made at sentencing; (2) the district court failed to give notice of its intent to impose a sentence above the range suggested by the Sentencing Guidelines as required by Fed. R. Crim. P. 32(h); (3) the district court erred in ordering restitution for two newly-discovered victims; and (4) the district ...