United States of America v. John Geringer

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN GERINGER,
Defendant - Appellant.
No.15-10353
D.C. No. 5:12-CR-00888-EJD
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted November 14, 2016
San Francisco, California
Before: REINHARDT and OWENS, Circuit Judges, and MENDOZA,** District
Judge.
John Geringer pleaded guilty to mail and securities fraud charges based on
his management of an investment fund. Geringer appeals his 145-month sentence
and $50.3 million restitution and forfeiture orders. Because the district court
*This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**The Honorable Salvador Mendoza, Jr., District Judge for the U.S. District Court
for the Eastern District of Washington, sitting by designation.
FILED
DEC 2 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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improperly calculated the loss caused by Geringer’s fraud for the purpose of
sentencing, we vacate Geringer’s sentence and the district court’s orders for
restitution and forfeiture, and we remand for resentencing and reconsideration of
the amounts Geringer owes in restitution and forfeiture.
The Government argues that Geringer waived the right to appeal his
sentence. We review de novo the validity of an appeal waiver. United States v.
Medina-Carrasco, 815 F.3d 457, 461 (9th Cir. 2015). In the plea agreement,
Geringer expressly waived his right to appeal his sentence. But at the conclusion of
Geringer’s sentencing hearing, the district court stated: “Mr. Geringer, you do have
the right to appeal and your plea agreement indicates that right and your appeal
must be filed within 14 days of today’s date.” The government did not object.
Because a district court’s unambiguous statement that a defendant has the right to
appeal controls over inconsistent plea-agreement terms, United States v. Buchanan,
59 F.3d 914, 917 (9th Cir. 1995), Geringer’s right to appeal his sentence was
preserved.
Geringer argues that the district court improperly refused to consider the
value of the investment fund’s remaining assets for the purpose of calculating loss
under Sentencing Guideline Section 2B1.1. We review a district court’s

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interpretation of the Sentencing Guidelines, including the method of calculating
loss, de novo. United States v. Christensen, 828 F.3d 763, 815 (9th Cir. 2015);
United States v. Santos, 527 F.3d 1003, 1006 (9th Cir. 2008). “A calculation of the
amount of loss is a factual finding reviewed for clear error.” United States v.
Stargell, 738 F.3d 1018, 1024 (9th Cir. 2013) (quoting United States v. Garro, 517
F.3d 1163, 1167 (9th Cir. 2008)). The district court, without making specific
factual findings, rejected Geringer’s request to reduce the amount of loss by the
value of the fund’s assets. The court concluded that “those sums . . . are more
appropriately placed and legally placed in the restitution column . . . . I don’t think
they legally apply to the current state of the case.” This is incorrect. A victim’s loss
should be offset by the victim’s benefit for the purpose of calculating loss under
the Sentencing Guidelines. See United States v. W. Coast Aluminum Heat Treating
Co., 265 F.3d 986, 992 (9th Cir. 2001). Under this principle, the district court was
obligated to determine the actual value, if any, of the fund, and to deduct that value
from the amount of loss. See United States v. Leonard, 529 F.3d 83, 93 (9th Cir.
2008) (holding that the district court erred by failing to determine and deduct the
actual value of securities received by fraud victims). The district court erred by
failing to do so.

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Because the district court may have relied on its improper calculation of loss
under the Sentencing Guidelines in determining the amounts of forfeiture and
restitution and because the court did not make independent findings to support
those determinations, the district court must also reconsider its determinations of
those amounts on remand.
Geringer also urges us to retroactively apply Amendment 791 to the
Sentencing Guidelines, which became effective on November 1, 2015 and amends
Section 2B1.1’s loss table to account for inflation. U.S.S.G., App. C. Supp. at 102–
10. This court “consider[s] three factors when assessing whether an amendment to
the Guidelines applies retroactively: (1) whether the amendment is listed as a
retroactive amendment in U.S.S.G. § 1B1.10(c); (2) whether the amendment is
characterized as a clarification; and (3) whether the amendment resolves a circuit
split.” United States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir. 2016) (citing
United States v. Christensen, 598 F.3d 1201, 1205 (9th. Cir. 2010)). None of these
factors support applying Amendment 791 retroactively here. The amendment is not
listed under U.S.S.G. § 1B1.10(c), the Sentencing Commission expressly
characterized the change as a “substantive amendment,” U.S.S.G., App. C. Supp.
at 10, and the amendment does not resolve any circuit split. Accordingly, the

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revised loss tables do not apply retroactively in this case.
Finally, Geringer asks us to reassign this case to a different district court
judge on remand. Because Geringer has not demonstrated that the “rare and
extraordinary circumstances” necessary to justify reassignment are present here,
we decline to do so. See United Nat’l Ins. Co. v. R&D Latex Corp., 242 F.3d 1102,
1118 (9th Cir. 2001).
Accordingly, we VACATE Geringer’s sentence and the district court’s
orders for restitution and forfeiture, and REMAND to the district court for
resentencing and orders of restitution and forfeiture consistent with this decision.

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United States v. Geringer, No. 15-10353
OWENS, Circuit Judge, concurring:
I concur with the understanding that on remand, the district court ultimately
may impose the same sentence, restitution, and forfeiture so long as it provides a
more robust explanation as to how it calculated these amounts.
FILED
DEC 02 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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