United States v. Khemraj Hardat

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 17, 2020
• Docket: 19-50267
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50267

Plaintiff-Appellee, D.C. No. 2:18-cr-00861-DSF-1 v.

KHEMRAJ DAVE HARDAT, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Submitted November 13, 2020** Pasadena, California

Before: CHRISTEN and WATFORD, Circuit Judges, and ROSENTHAL,*** District Judge.

Khemraj Dave Hardat pleaded guilty to five counts of fraud for convincing at

least six individuals to pay him more than $5 million. At sentencing, the district

* 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). *** The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of Texas, sitting by designation. court applied a two-level “sophisticated means” enhancement to Hardat’s sentence

under U.S. Sentencing Guidelines Manual § 2B1.1(b)(10), which Hardat appeals.

We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we

affirm.

We review the district court’s application of sentencing enhancements for

abuse of discretion. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.

2017) (en banc). We review the factual findings underlying the enhancement for

clear error. United States v. Holden, 908 F.3d 395, 401 (9th Cir. 2018). The record

amply supports the factual basis for applying the enhancement here, and the district

judge’s rulings were well within her discretion.

The Guidelines Application Note defines “sophisticated means” as

“especially complex or especially intricate offense conduct pertaining to the

execution or concealment of an offense.” U.S. SENTENCING GUIDELINES MANUAL

§ 2B1.1(b)(10) cmt. n.9 (U.S. SENTENCING COMM’N 2018). One example is a

telemarketing scheme with a main office and soliciting offices in different locations.

Id. Another example is using “fictitious entities, corporate shells, or offshore

financial accounts.” Id. Conduct that is less sophisticated than these examples can

still justify the sophisticated-means enhancement. United States v. Jennings, 711

F.3d 1144, 1147 (9th Cir. 2013). Hardat doctored digital images for bank account balance statements with

inflated amounts to carry out his fraud. Doctoring financial documents, even if not

digitally, is often treated as a sophisticated means to commit fraud. See United States

v. Tanke, 743 F.3d 1296, 1307 (9th Cir. 2014) (finding that creating “at least six false

invoices and falsified carbon copies of checks” was sophisticated means.). Hardat

also used fictitious entities and corporate shells to make himself appear to be a

successful businessman and investor, and to make the investments he was selling

appear legitimate. This tactic is often treated as a sophisticated means. See

Jennings, 711 F.3d at 1146 (“Conduct such as hiding assets or transactions, or both,

through the use of fictitious entities, corporate shells, or offshore financial accounts

ordinarily indicates sophisticated means.”). Finally, he made “lulling” partial

payments to some victims out of money other victims had paid him, a Ponzi-type

scheme intended to conceal his actions. The district court did not err in applying the

two-level enhancement and sentencing Hardat to a within-Guidelines sentence of 87

months.

AFFIRMED.