United States of America v. TROY STRATOS, AKA Troy David Stafford

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TROY STRATOS, AKA Troy David
Stafford,
Defendant-Appellant.
No. 16-10532
D.C. No.
2:11-cr-00537-TLN-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted August 5, 2019
San Francisco, California
Before: SILER,** HAWKINS, and NGUYEN, Circuit Judges.
Troy Stratos appeals his sentence of 262 months of imprisonment following
his convictions for mail fraud, wire fraud, money laundering, and obstruction of
justice. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
AUG 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 3742(a), and we affirm.
The district court did not plainly err in applying the two-level enhancement
to Stratos’s base offense level for abuse of a position of trust under United States
Sentencing Guidelines (“U.S.S.G.”) § 3B1.3. See Rosales-Mireles v. United
States, 138 S. Ct. 1897, 1904 (2018) (applying plain error standard of review
where the defendant did not object to the Guidelines calculation in the district
court). Stratos pretended to be Nicole Murphy’s wealth manager and investor,
which is clearly a position of trust because it is “characterized by professional or
managerial discretion (i.e., substantial discretionary judgment that is ordinarily
given considerable deference).” U.S.S.G. § 3B1.3 cmt. n.1; cf. United States v.
Laurienti, 731 F.3d 967, 973–74 (9th Cir. 2013) (affirming application of § 3B1.3
enhancement where a stockbroker defrauded his client). That Stratos was not a
bona fide wealth manager does not change the analysis, because he was able to
execute the fraudulent scheme by feigning expertise in this position of trust. Cf.
U.S.S.G. § 3B1.3 cmt. n.1, 3 (stating enhancement applies where a defendant
“perpetrates a financial fraud by leading an investor to believe the defendant is a
legitimate investment broker”).
The district court did not err in adding a four-level enhancement under
U.S.S.G. § 2B1.1(b)(2)(B), which applies when the offense results “in substantial

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financial hardship to five or more victims.”1 Contrary to Stratos’s argument, the
record shows that the district court correctly recognized that the enhancement
applies only if the victims suffered a substantial financial hardship, not just any
financial loss. See id. At least five victims articulated how Stratos’s offense
caused them substantial financial hardship. For example, Murphy stated that she
and her mother, whom Murphy supports, both lost their homes as a result of
Stratos’s crimes. Larry and Victoria Dean, Stephen and Joy Negrotti, and Roger
Siefert detailed that they either lost significant retirement funds or would have to
delay retirement. See id. cmt. n.4(F) (calling courts to consider, among other
factors, whether the offense resulted in the victim “making substantial changes to
his or her living arrangements, such as relocating to a less expensive home;”
“suffering substantial loss of a retirement . . . fund;” and “making substantial
changes to his or her employment, such as postponing his or her retirement plans”).
Lastly, Stratos’s sentence is not substantively unreasonable. See Gall v.
1 The parties dispute the applicable standard of review because Stratos raises a new
argument on appeal to challenge the application of § 2B1.1(b)(2)(B). Compare
United States v. Jackson, 697 F.3d 1141, 1144–45 (9th Cir. 2012) (per curiam)
(applying plain error standard of review where the defendant challenged the
application of an enhancement in the district court but raised a different argument
as to the same enhancement on appeal), with United States v. Reyes, 772 F.3d
1152, 1157 n.6 (9th Cir. 2014) (rejecting application of plain error standard of
review where defendant raised a new argument challenging an enhancement on
appeal). We need not decide this question because our analysis remains the same
regardless of which standard of review applies.

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United States, 552 U.S. 38, 46 (2007) (“[A]ppellate review of sentencing decisions
is limited to determining whether they are ‘reasonable’ . . . [under] the familiar
abuse-of-discretion standard of review . . . .”). Stratos compares his sentence to
that of Tim Burns but, unlike Stratos, Burns cooperated with law enforcement.
Moreover, he and Burns were involved in separate fraud schemes. Therefore, the
disparity in their sentences does not render Stratos’s sentence substantively
unreasonable because they are not similarly situated. See, e.g., United States v.
Osinger, 753 F.3d 939, 949 (9th Cir. 2014) (rejecting argument that a defendant’s
sentence was substantively unreasonable due to sentencing disparity where the
defendants were not similarly situated). Stratos’s argument that his sentence is
substantively unreasonable because it is significantly greater than the “median
sentence in 2015 for all fraud cases” fails for the same reason.
AFFIRMED.

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