United States of America v. Joseph Anthony Lacoste

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH ANTHONY LACOSTE,
Defendant - Appellant.
No. 15-30001
D.C. No. 6:11-cr-60048-AA-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted March 11, 2016
Portland, Oregon
Before: BERZON and WATFORD, Circuit Judges, and WALTER,** Senior
District Judge.
1. The government did not breach its plea agreement with defendant Joseph
LaCoste. See United States v. Heredia, 768 F.3d 1220, 1231–34 (9th Cir. 2014).
The government advocated for the agreed-upon 36-month sentence both in its
FILED
MAY 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.

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sentencing memorandum and at the sentencing hearing. The prosecutor articulated
multiple, relevant reasons why the court should impose the agreed-upon sentence,
and he expressly challenged the bases for the Probation Office’s higher
recommendation, arguing that the government could not prove facts to support the
Probation Office’s higher loss figure and that LaCoste’s offense conduct did not
involve the use of sophisticated means. Even defense counsel acknowledged that,
in light of these representations, the government “satisfie[d] the agreement [the
parties] entered into.” Regardless of whether LaCoste waived this claim, it fails.
2. The district court did not improperly restrict the statements of LaCoste’s
character witnesses at the sentencing hearing. The district court did not preclude
the defense witnesses from offering whatever relevant information they wished to
provide; it merely admonished them not to make further disparaging comments
about one of the victims of LaCoste’s scheme who had just testified to the impact
of LaCoste’s crimes on her. Nor did the court violate Federal Rule of Criminal
Procedure 32(i)(1)(B) by failing to disclose to the defense the materials the court
reviewed prior to sentencing. The letters about which LaCoste now complains
were written by his supporters, and some of them were submitted to the court by
LaCoste’s own lawyer, albeit apparently without his reviewing them first. The
record contains nothing to support LaCoste’s contention that, in arriving at the

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sentence it imposed, the district court relied on detrimental information that
defense counsel was deprived of an opportunity to review.
3. Sufficient evidence supports the imposition of a leadership role
enhancement under U.S.S.G. § 3B1.1(c). The Probation Office reported that
LaCoste made all major financial decisions at the investment firm and controlled
both the firm’s expenditures and its activities related to his fraud. The Probation
Office also noted that LaCoste exercised operational authority over various
participants in carrying out his fraud. The district court was free to accept these
assertions, which suffice to support the leadership role enhancement. Cf. United
States v. Whitney, 673 F.3d 965, 975–76 (9th Cir. 2012). And because the
evidence showed “that the defendant exercised some control over others involved
in the commission of the offense or was responsible for organizing others for the
purpose of carrying out the crime,” the court was not required to make express
factual findings in support of the enhancement. Id. at 975 (quoting United States v.
Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007)).
These aspects of the district court’s decision are AFFIRMED.

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