United States of America v. Tony Eugene Barnes

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY EUGENE BARNES,
Defendant - Appellant.
No. 08-30382
D.C. No. 2:08-CR-0007-DWM
MEMORANDUM *
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted August 3, 2009
Seattle, Washington
Before: PREGERSON, NOONAN, and BEA, Circuit Judges.
Tony Eugene Barnes (“Barnes”) pleaded guilty to one count of bank fraud,
one count of conspiracy to commit bank fraud, and one count of aggravated
identity theft for stealing 31 bank account holders’ identities. The district court
sentenced Barnes to two concurrent 57-month sentences and a consecutive 24-
FILED
MAR 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 Under the Sentencing Guidelines, loss is calculated according to the greater
of actual loss or intended loss. U.S.S.G. § 2B1.1(b)(1), cmt. n.3(A). Intended loss
is the “pecuniary harm that was intended to result from the offense” and “includes
intended pecuniary harm that would have been impossible or unlikely to occur.”
§ 2B1.1(b)(1), cmt. n.3(A)(ii).
2
month sentence. Barnes was also ordered to pay $145,703.45 in restitution under
the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. Barnes
challenges his 57-month concurrent sentences and the restitution order. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
I. Sentencing
The district court applied the twelve-level sentencing enhancement because
it concluded that the loss arising from Barnes’ offense exceeded $200,000. The
district court determined that Barnes was responsible for $193,303.54 in intended
losses 1 suffered by the banks, plus $12,400 in collateral losses suffered by the
individual bank account holders. The district court calculated $12,400 in collateral
losses by assigning $400 of collateral loss for each of the 31 individual victims.
The district court based its calculation on testimony by FBI Special Agent Kevin
Damuth. Agent Damuth testified regarding the time and expense typically needed
to rectify identity theft, as well as the specific collateral losses suffered by six
individual bank account holders.

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2 Barnes summarily asserts that the district court should have applied the
“clear and convincing evidence” standard to the facts supporting the loss
calculation sentencing enhancement. If a sentencing factor has “an extremely
disproportionate effect on the sentence relative to the offense of the conviction” the
district court must find facts by “clear and convincing evidence.” Armstead, 552
F.3d at 776 (quoting United States v. Moreland, 509 F.3d 1201, 1220 (9th Cir.
2007)). Here, the disputed loss calculation, which resulted in a two-level increase
in Barnes’s advisory guideline range, did not have an extremely disproportionate
effect on the sentence. See id. at 777. Accordingly, the district court properly
applied the preponderance of the evidence standard.
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Barnes contends that there was insufficient evidence to support the district
court’s estimate of collateral losses. “We review the district court’s determination
of the amount of loss for clear error.” United States v. Santos, 527 F.3d 1003,
1006 (9th Cir. 2008) (citing United States v. Zolp, 479 F.3d 715, 718 (9th Cir.
2007)). Facts at sentencing must be established by “a preponderance of the
evidence.” United States v. Armstead, 552 F.3d 769, 776 (9th Cir. 2008).2
In Armstead, we held that “[i]f a person suffered pecuniary harm beyond the
amount by which the person was reimbursed, then that amount should be included
in the loss calculation.” Id. at 783. In United States v. Pham, we differentiated
between account holders reimbursed immediately by the bank, who had not
suffered any collateral loss; and account holders whose reimbursement was
delayed, who may have suffered collateral loss. 545 F.3d 712, 719-21 (9th Cir.
2009). We noted that the government need not provide evidence of collateral loss

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from every victim subject to delayed reimbursement, so long as evidence is
produced from “enough of the account holders to allow the sentencing court
reasonably to infer a pattern [of collateral loss].” 545 F.3d at 720 n.3.
Here, the government established by a preponderance of the evidence that
the 31 individual account holders suffered an average of $400 in collateral loss.
Agent Damuth testified regarding the general collateral expenses that would be
incurred by all of the account holder victims, and the individual collateral expenses
claimed by some of the victims. In particular, Agent Damuth testified that each of
the individual account holders spent hours going to their banks, signing affidavits
and fixing their accounts, and that each of the individual account holders incurred
additional collateral expenses for gas and new checks. Under the Sentencing
Guidelines, this testimony was sufficient to “allow the sentencing court to infer a
pattern of delayed reimbursement” and reasonably estimate the average collateral
loss for the individual account holders. See Pham, 545 F.3d at 720 n.3 (citing
U.S.S.G. § 2B1.1 cmt. n.3(C)).
Accordingly, we hold that the district court’s $400 per victim estimate and
total loss calculation was not clearly erroneous.
II. Restitution

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The district court’s restitution order also included its calculation of $12,400
in collateral loss to the individual bank account holders. Barnes contends that
there was insufficient evidence to support restitution in this amount. We review a
restitution order “for an abuse of discretion, provided it is within the bounds of the
statutory framework. Factual findings supporting an order of restitution are
reviewed for clear error.” United States v. Waknine, 543 F.3d 546, 555 (9th Cir.
2008) (internal quotation marks and citations omitted). We affirm.
The MVRA requires mandatory restitution for crimes of violence and
property offenses. 18 U.S.C. § 3663A. “In light of the remedial purposes
underlying the MVRA, our precedent grants district courts a degree of flexibility in
accounting for a victim’s complete losses. Despite this flexibility, [the MVRA]
minimally requires that facts be established by a preponderance of the evidence,
and the district court may utilize only evidence that possesses a sufficient indicia of
reliability to support its probable accuracy.” Waknine, 543 F.3d at 557 (internal
citation and quotation marks omitted).
As discussed above, the government proved by a preponderance of the
evidence that the 31 account holders suffered on average $400 in collateral losses.
Agent Damuth’s testimony possesses a sufficient indicia of reliability because of
his expertise, and because he obtained a specific accounting of the collateral losses

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suffered by 6 of the 31 account holders. Accordingly, the district court did not
abuse its discretion in ordering Barnes to pay $12,400 in restitution to individual
bank account holders.
AFFIRMED.

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