United States v. Bradley Garner

427 F. App'x 584

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2011
• Docket: 10-30064, 10-30165, 10-30211
• Status: Unpublished

Opinion

MEMORANDUM **

Bradley Garner appeals the district court’s judgment of conviction and order of restitution. We have jurisdiction pursuant to 28 U.S.C. § 1291. We remand for amendment of the judgment and presentence investigation report (PSR). We affirm in all other respects.

The conviction on Count 1 remains valid because it is supported by the independently valid “money or property” theory. United States v. Pelisamen, 641 F.3d 399, 406(9th Cir.2011). Because the government does not oppose Garner’s request for a limited remand instructing the district court to delete all references to theft of honest services in the judgment and PSR, we grant such relief.

The restitution order is proper. Because Garner was convicted of wire fraud and mail fraud, both of which have a “scheme” element, the restitution order correctly encompasses related but uncharged conduct. See United States v. Brock-Davis, 504 F.3d 991, 998-99 (9th Cir.2007); United States v. Grice, 319 F.3d 1174, 1177 (9th Cir.2003).

We REMAND with instructions that the district court amend the judgment and PSR by deleting all references to theft of honest services, 18 U.S.C. § 1346. We AFFIRM in all other respects.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.