United States v. Anderson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 12, 2026
• Docket: 25-258
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 25-258 D.C. No. Plaintiff - Appellee, 3:21-cr-00397-EMC-1 v. MEMORANDUM*

ALAN ANDERSON,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding

Argued and Submitted January 7, 2026 San Francisco, California

Before: GOULD, NGUYEN, and BENNETT, Circuit Judges.

Alan Anderson appeals his sentence for two counts of wire fraud in violation

of 18 U.S.C. § 1343, and his restitution order. Anderson claims that the district

court erred in failing to rule on his factual objections at sentencing, that his 88-

month sentence was substantively unreasonable, and that the restitution order

improperly awarded restitution to individuals who were not “victims” under the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A(a)(2). We

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

1. At sentencing, a district court must, “for any disputed portion of the

presentence report or other controverted matter” either “rule on the dispute or

determine that a ruling is unnecessary . . . .” Fed. R. Crim. P. 32(i)(3)(B). Because

Anderson did not make a Rule 32 objection at sentencing, we review his claim for

plain error. United States v. Wijegoonaratna, 922 F.3d 983, 989 (9th Cir. 2019).

The district court explicitly stated that a ruling on Anderson’s objections was

unnecessary when it noted that the “resulting offense level adjustment” was “the

key issue in terms of the loss calculation,” and that it was “more important than . .

. the precise number.” Regardless, however, Anderson’s claim fails under plain

error review because he cannot establish “a reasonable probability that he would

have received a different sentence absent the error.” United States v. Hanson, 936

F.3d 876, 884 (9th Cir. 2019). A $1.2 million deduction in the loss amount would

not have affected the offense level adjustment in this case. See U.S.S.G.

§2B1.1(b)(1)(J); see also United States v. Garro, 517 F.3d 1163, 1169 (9th Cir.

2008) (finding any error in the district courts calculation of the Guidelines loss

amount was harmless because the same level enhancement applied under either

loss amount). The district court also relied on other factors in its sentencing

decision. For example, the court emphasized that Anderson committed “an

2 25-258 egregious offense that was inflicted on multiple victims over an extended course of

time and, most disturbingly, those whose trust and friendships were taken

advantage of by Mr. Anderson.” The court weighed the nature of Anderson’s

offense, and his prior criminal conviction for a similar offense, and determined that

“the guideline range [was] a fair reflection when all is said and done.” Because a

$1.2 million reduction in the loss amount would not have altered the seriousness or

sophistication of Anderson’s offense to such a degree that there is a “reasonable

probability that he would have received a different sentence,” Anderson’s claim

fails under plain error review. Hanson, 936 F.3d at 884.

2. The district court did not abuse its discretion in imposing an 88-month

sentence on Anderson. “We review the district court’s interpretation of the

Sentencing Guidelines de novo, the district court’s application of the Guidelines to

the facts for abuse of discretion, and the district court’s factual findings for clear

error.” United States v. Armstead, 552 F.3d 769, 776 (9th Cir. 2008) (quoting

Garro, 517 F.3d at 1167). If a procedural sentencing error is raised for the first

time on appeal, we review for plain error. United States v. Burgum, 633 F.3d 810,

812 (9th Cir. 2011). “We review the substantive reasonableness of a sentence for

abuse of discretion.” Armstead, 552 F.3d at 776.

First, the district court did not clearly err in its determination that the

fraudulent scheme began in September 2011, or that the entirety of the Silverman,

3 25-258 Zuiker, and Dilley investments were relevant conduct. The district court

recognized that it was difficult to pinpoint exactly when the fraud began and found

that September 2011 was the best possible estimate given the material amount of

money obtained by fraud at that time. Further, Silverman wired money into

accounts later owned by Anderson when Anderson’s fraudulent scheme was

already underway, the FBI notes state that Silverman met with Anderson a few

times over lunch and dinner, and the record indicates that other investors also

understood that Imbee and Cosmic Toast were related. Similarly, the FBI verified

the Dilley’s investment amount through check copies and deposit receipts, and

Zuiker invested in the joint venture in 2014 while the fraud was underway.

Regardless, even if the district court did err in its consideration of the extra

$2 million in investments, any error was harmless. See United States v. Crawford,

185 F.3d 1024, 1029 (9th Cir. 1999). A reduction of $2 million in the loss

calculation would not have affected Anderson’s sentence given the district court’s

focus on the “resulting offense level adjustment,” which would remain unchanged,

and its thorough consideration of the 18 U.S.C. § 3553(a) factors.

Second, the district court did not plainly err in its consideration of

Anderson’s background at sentencing. The court merely stated that it would take

Anderson’s offense “as serious[ly] as all other kinds of offenses” to avoid

sentencing disparities and made no indication that it increased Anderson’s sentence

4 25-258 based on his background.

Because the district court properly considered the totality of the

circumstances and did not clearly or plainly err in its factual findings, Anderson’s

within-Guidelines sentence was procedurally and substantively reasonable. See

United States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012) (en banc) (“A

substantively reasonable sentence is one that is ‘sufficient, but not greater than

necessary’ to accomplish § 3553(a)(2)’s sentencing goals.” (quoting United States

v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009))). Accordingly, cumulative error

also does not provide a basis for reversal of Anderson’s convictions.

3. “We review de novo the legality of a restitution order and, if the order

is within the statutory bounds, we review the amount of restitution for abuse of

discretion.” United States v. Peterson, 538 F.3d 1064, 1074 (9th Cir. 2008). We

review factual findings supporting a restitution order for clear error. Id. For the

reasons stated above, the district court did not clearly err in finding that Silverman

and the investors who invested after September 2011 were harmed by Anderson’s

fraudulent conduct in the course of the fraudulent scheme. Thus, the district court

did not abuse its discretion in awarding restitution to these investors. See 18

U.S.C. § 3663A(a)(2) (defining a “victim” under the MVRA to include “any

person directly harmed by the defendant’s criminal conduct in the course of the

scheme, conspiracy, or pattern.”).

5 25-258 AFFIRMED.

6 25-258