United States v. Kathy Funtila

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 20, 2020
• Docket: 19-10038
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10038

Plaintiff-Appellee, D.C. No. 1:17-cr-00515-LEK-1

v.

KATHY FUNTILA, AKA Kathy Retter, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding

Submitted July 14, 2020**

Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.

Kathy Funtila appeals from the district court’s judgment and challenges the

119-month sentence imposed following her guilty-plea conviction for bank fraud,

in violation of 18 U.S.C. § 1344, and aggravated identity theft, in violation of 18

U.S.C. § 1028A(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we

* 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). affirm.

Funtila first contends that the district court clearly erred by finding that one

of the victims of her fraud, SMAC Hawaii, Inc. (“SMAC”), incurred financial

hardship through no fault of its own. She asserts that, in fact, SMAC must have

known that the funds Funtila fraudulently obtained from Hawaii National Bank

were borrowed and thus SMAC bore some responsibility for spending the funds.

However, as the district court explained, it was Funtila’s conduct in obtaining

those unauthorized loans that resulted in SMAC’s legal liability on the loans, and

ultimately caused SMAC’s dissolution when it could not repay. On this record, the

district court did not clearly err in concluding that Funtila was solely responsible

for the losses to SMAC. See United States v. Spangle, 626 F.3d 488, 497 (9th Cir.

2010) (“In order to reverse a district court’s factual findings as clearly erroneous,

we must determine that the district court’s factual findings were illogical,

implausible, or without support in the record.”).

Funtila also contends that the above-Guidelines sentence is substantively

unreasonable. We conclude that, in light of the reasons cited by the district court

and the totality of the circumstances, the district court did not abuse its discretion

in imposing the 119-month sentence. See Gall v. United States, 552 U.S. 38, 51

(2007); see also United States v. Christensen, 732 F.3d 1094, 1101 (9th Cir. 2013)

(district court may vary upward based on factors already accounted for in the

2 19-10038 Guidelines). Moreover, the district court adequately explained the upward

variance. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

The motion of Cynthia A. Kagiwada, Esq., to be relieved as appellant’s

counsel of record is granted. Funtila’s motion for appointment of substitute

counsel is denied. If Funtila wishes to seek rehearing, she may file a pro se

petition pursuant to Federal Rules of Appellate Procedure 35 and 40.

The Clerk will serve a copy of this disposition on counsel Kagiwada, as well

as on Funtila individually at: Reg. No. 06000-122, FDC Philadelphia, Federal

Detention Center, P.O. Box 562, Philadelphia, PA 19105.

AFFIRMED.

3 19-10038