United States v. Edward Showalter

Ninth Circuit

United States v. Edward Showalter

578 F. App'x 640

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 10, 2014

Docket12-50504

StatusUnpublished

This text of 578 F. App'x 640 (United States v. Edward Showalter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Edward Showalter, 578 F. App'x 640 (9th Cir. 2014).

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Opinion

MEMORANDUM **

Showalter pleaded guilty to one count of wire fraud in violation of 18 U.S.C. § 1343, for which he was sentenced to 151 months imprisonment plus three years of supervised release. On appeal, we affirmed (1) the district court’s denial of his motion to withdraw his plea, and (2) the court’s determination that the “actual” or “intended” loss attributable to Showalter’s fraud exceeded $7 million. However, we vacated Showalter’s sentence because the district court did not adequately determine that there were 50 or more victims of his crime. See U.S.S.G. § 2Bl.l(b)(2)(B); United States v. Showalter, 569 F.3d 1150, 1160 (9th Cir.2009).

On remand, the district court conducted a new sentencing hearing and resentenced the defendant to 151 months imprisonment, $15,418,500 in restitution, and three years of supervised release. We affirm.

The district court did not err in calculating Showalter’s guidelines range. See United States v. Ali, 620 F.3d 1062, 1073 (9th Cir.2010). Suffice it to say that the district court carefully and thoroughly considered all the evidence before it, evidence which we find more than convincing and sufficient to support its determination that there were 50 or more victims of Showal-ter’s fraud. Special Agent Whelan’s detailed investigation, evidence, and sworn testimony, his spreadsheet analysis, the letters reviewed from victims and the victims who submitted impact statements left no doubt as to the number of victims in this case. The district court called the evidence “overwhelming.” We agree. We note that although given an opportunity to cross-examine Special Agent Whelan, counsel for Showalter declined to do so. The court even re-examined the amount of loss involved and came to the same conclusion: in excess of $7 million.

Showalter raises additional claims of error involving his plea agreement. Because he did not raise these claims in his first appeal, they are waived. See United *641 States v. Nagra, 147 F.3d 875, 882 (9th Cir.1998). In any event, they have no merit.

AFFIRMED.

**

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

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MEMORANDUM **

Showalter pleaded guilty to one count of wire fraud in violation of 18 U.S.C. § 1343, for which he was sentenced to 151 months imprisonment plus three years of supervised release. On appeal, we affirmed (1) the district court’s denial of his motion to withdraw his plea, and (2) the court’s determination that the “actual” or “intended” loss attributable to Showalter’s fraud exceeded $7 million. However, we vacated Showalter’s sentence because the district court did not adequately determine that there were 50 or more victims of his crime. See U.S.S.G. § 2Bl.l(b)(2)(B); United States v. Showalter, 569 F.3d 1150, 1160 (9th Cir.2009).

On remand, the district court conducted a new sentencing hearing and resentenced the defendant to 151 months imprisonment, $15,418,500 in restitution, and three years of supervised release. We affirm.

The district court did not err in calculating Showalter’s guidelines range. See United States v. Ali, 620 F.3d 1062, 1073 (9th Cir.2010). Suffice it to say that the district court carefully and thoroughly considered all the evidence before it, evidence which we find more than convincing and sufficient to support its determination that there were 50 or more victims of Showal-ter’s fraud. Special Agent Whelan’s detailed investigation, evidence, and sworn testimony, his spreadsheet analysis, the letters reviewed from victims and the victims who submitted impact statements left no doubt as to the number of victims in this case. The district court called the evidence “overwhelming.” We agree. We note that although given an opportunity to cross-examine Special Agent Whelan, counsel for Showalter declined to do so. The court even re-examined the amount of loss involved and came to the same conclusion: in excess of $7 million.

Showalter raises additional claims of error involving his plea agreement. Because he did not raise these claims in his first appeal, they are waived. See United *641 States v. Nagra, 147 F.3d 875, 882 (9th Cir.1998). In any event, they have no merit.

AFFIRMED.

**

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

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