United States v. Gary Christensen

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 2022
• Docket: 21-15515
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-15515

Plaintiff-Appellee, D.C. Nos. 3:20-cv-08152-DGC-1 3:14-cr-08164-DGC-1 v.

GARY S. CHRISTENSEN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Submitted February 15, 2022**

Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.

Gary S. Christensen appeals pro se from the district court’s orders granting

in part and denying in part his petition for a writ of error coram nobis, and denying

his motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291.

Because we agree with the district court that Christensen has not shown an error

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). “of the most fundamental character,” United States v. Riedl, 496 F.3d 1003, 1006

(9th Cir. 2007), with respect to his remaining restitution obligation, we affirm. See

Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002) (“Because [the

coram nobis] requirements are conjunctive, failure to meet any one of them is

fatal.”).

Christensen first contends that the Internal Revenue Service (“IRS”) is not

entitled to receive restitution. This argument is unavailing because Christensen

was convicted of evading taxes and failing to file tax returns, in violation of 26

U.S.C. §§ 7201 and 7203, and the restitution statutes “unambiguously authorize[]

federal courts to order restitution as a condition of supervised release for any

criminal offense, including one under Title 26, for which supervised release is

properly imposed.” United States v. Batson, 608 F.3d 630, 635 (9th Cir. 2010).

Christensen’s contention that Batson has been implicitly overruled by intervening

authority is waived because he did not raise it below, see Padgett v. Wright, 587

F.3d 983, 985 n.2 (9th Cir. 2009), and is unpersuasive, see Miller v. Gammie, 335

F.3d 889, 900 (9th Cir. 2003) (en banc).

Christensen next asserts that the district court lacked jurisdiction to order

restitution because there was no plea agreement or proof that the IRS had made a

lawful, final determination of the actual tax loss. However, the district court need

only make “a reasonable estimate of the loss, given the available information.”

2 21-15515 United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010) (internal quotation marks

omitted). Here, the evidence upon which the district court made its calculation was

supported by “sufficient indicia of reliability.” Id. at 1073. Contrary to

Christensen’s argument, United States v. Green, 735 F.2d 1203 (9th Cir. 1984), did

not require the court to do more.

Finally, Christensen argues that the district court plainly erred by ordering

that he pay restitution while incarcerated. The record shows that Christensen

participated in the Bureau of Prisons’ voluntary Inmate Financial Responsibility

Program, through which $50.00 was applied to his restitution obligation. We agree

with the district court that payment of this nominal amount is not a fundamental

error warranting coram nobis relief. See Riedl, 496 F.3d at 1006.

AFFIRMED.

3 21-15515