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United States v. Augare

United States Court of Appeals, Ninth Circuit

September 9, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DELYLE SHANNY AUGARE, Defendant-Appellant

Submitted, Seattle, Washington: August 31, 2015 [*]

Appeal from the United States District Court for the District of Montana. D.C. No. 4:13-cr-00065-BMM-2. Brian M. Morris, District Judge, Presiding.

AFFIRMED.

SUMMARY[**]

Criminal Law

The panel affirmed a sentence in a case in which the district court applied a " sophisticated means" enhancement under U.S.S.G. § 2B1.1(b)(10)(C) following the defendant's guilty plea to conspiracy to defraud the United States, False Claims Act conspiracy, theft from an Indian tribe receiving federal funding, and federal income tax evasion.

The panel held that the district court did not abuse its discretion when it applied the " sophisticated means" enhancement to the defendant's offense conduct. The panel explained that the coordinated and repetitive steps that the defendant took to transfer money from the Po'Ka project to his personal bank account are comparable in complexity and sophistication to the schemes held to warrant the enhancement in both this court's precedent and persuasive authority from other circuits.

Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana, for Defendant-Appellant.

Michael W. Cotter, United States Attorney, and Carl E. Rostad, Assistant United States Attorney, United States Attorney's Office, Great Falls, Montana, for Plaintiff-Appellee.

Before: Alfred T. Goodwin, Ronald M. Gould, and Sandra S. Ikuta, Circuit Judges.

OPINION

GOULD, Circuit Judge:

We consider under what circumstances a " sophisticated means" sentencing enhancement may be given under U.S.S.G. § 2B1.1(b)(10)(C).

Delyle Shanny Augare appeals his sentence following his guilty plea to four counts: (1) conspiracy to defraud the United States, in violation of 18 U.S.C. § 372; (2) False Claims Act conspiracy, in violation of 18 U.S.C. § 286; (3) theft from an Indian tribe receiving federal funding, in violation of 18 U.S.C. § 666(a)(1)(A); and (4) federal income tax evasion, in violation of 26 U.S.C. § 7201.

Specifically, Augare challenges the district court's application of the " sophisticated means" sentencing enhancement under U.S.S.G. § 2B1.1(b)(10)(C). We review a district court's application of the Sentencing Guidelines to the facts for abuse of discretion.[1]United States v. Jennings, 711 F.3d 1144, 1146 (9th Cir. 2013). For the reasons that follow, we conclude that the district court did not abuse its ...


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