United States v. McClellon

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 18 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-3406 D.C. No. Plaintiff - Appellee, 2:22-cr-00073-LK-1 v. MEMORANDUM* Mr. DONTE JAMAL MCCLELLON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Washington Lauren J. King, District Judge, Presiding

Argued and Submitted March 13, 2026 Portland, Oregon

Before: COLLINS and LEE, Circuit Judges, and FITZWATER, District Judge.**

A jury convicted Donte McClellon (“McClellon”) of three counts of wire

fraud, 18 U.S.C. §§ 1343 and 2, and two counts of bank fraud, 18 U.S.C. §§ 1344(2)

and 2, for obtaining Paycheck Protection Program (“PPP”) loans using false

information. McClellon appeals his sentence of 42 months of imprisonment and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. three years of supervised release. We have jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a). We affirm.1

McClellon appeals his sentence based on the argument that the district court

improperly relied on the definition of “loss” in Application Note 3 of § 2B1.1 of the

United States Sentencing Guidelines (“U.S.S.G.”) (2023 ed.). He maintains that

“loss,” as used in § 2B1.1, does not encompass “intended loss,” and that the district

court therefore erred by including “intended loss” in its loss calculation. 2

1. Ordinarily, “[w]e review the district court’s interpretation of the

Sentencing Guidelines de novo[.]” United States v. Rodriguez, 162 F.4th 1016, 1019

(9th Cir. 2025) (emphasis added). But when the defendant fails to adequately

preserve his objection to the district court’s interpretation of the Sentencing

1 On March 25, 2026 and on May 26, 2026, McClellon filed in the district court two additional notices of appeal from certain subsequent orders issued by the district court in the underlying criminal case. Although each of those documents is styled simply as a “Notice of Appeal” from the challenged orders, they were docketed in the district court as amendments of the notice of appeal associated with this appeal, and they have likewise been entered on the docket of this appeal. Because these two additional notices of appeal are not properly considered to be amendments of the notice of appeal associated with this appeal, and because we decline to consolidate any such additional appeals with this case, the Clerk of the Court is directed to strike those documents (Dkt. Nos. 94 and 95) from the docket of this case and to otherwise process those notices of appeal in the ordinary course. 2 The district court sentenced McClellon according to the 2023 Sentencing Guidelines. The United States Sentencing Commission has since amended the Sentencing Guidelines to move the “intended loss” language from the commentary to the text of the Guidelines. See U.S.S.G. § 2B1.1 (2024 ed.).

2 24-3406 Guidelines, we review only for plain error. United States v. Hackett, 123 F.4th 1005,

1010 (9th Cir. 2024).

2. The Government contends that we should review the district court’s

interpretation of § 2B1.1 for plain error because McClellon failed to adequately raise

his legal objection in the district court. We need not decide this question, however,

because, even if we assume that McClellon preserved his objection, we would affirm

his sentence on de novo review.

3. Because we conclude that U.S.S.G. § 1B1.3—the relevant conduct

guideline—incorporates the concept of “intended loss,” we need not rely on

Application Note 3(A) of § 2B1.1. As relevant here, § 1B1.3 provides that a

defendant’s offense level shall be determined on the basis of “all acts and omissions

committed, aided, abetted, counseled, commanded, induced, procured, or willfully

caused by the defendant,” including acts and omissions that “were part of the same

course of conduct or common scheme or plan as the offense of conviction,” as well

as “all harm that resulted from [such] acts and omissions” and “all harm that was the

object of such acts and omissions.” U.S.S.G. § 1B1.3(a) (2023 ed.) (emphasis

added). When the “object of” language was first added to § 1B1.3, “object” meant

“[e]nd aimed at, the thing sought to be accomplished.” Object, Black’s Law

Dictionary (5th ed. 1979); see also Object, The American Heritage Dictionary 904

3 24-3406 (New College ed. 1978) (“The purpose, aim, or goal of a specific action or effort”);

U.S.S.G. app. C, amend. 3 (effective Jan. 15, 1988). Section 1B1.3 therefore

instructs courts to consider not only the harm that the defendant actually caused, but

also the intended harm associated with his acts and omissions. See, e.g., United

States v. Yafa, 136 F.4th 1194, 1198 (9th Cir. 2025) (explaining that “§ 1B1.3’s

broad directive,” when read alongside § 2B1.1, “strongly suggests that ‘loss’ is not

limited to only that loss which is identifiable and clearly calculable”).

4. Here, the district court did not err by including in the loss calculation the

amount of loans that McClellon sought as part of his scheme to obtain PPP loans

using false information, i.e., the intended loss. In the district court, McClellon

challenged the inclusion of two loans that were denied. The district court also

included a third loan that the target bank clawed back based on the suspicion that

McClellon was engaged in PPP fraud. McClellon’s “object” in applying for these

loans was to obtain the same loan amounts that he now contends should have been

excluded from the district court’s loss calculation. And McClellon took substantial

steps toward this “object” when he submitted false information in his loan

applications. Section 1B1.3 therefore required the district court to consider these

three loan amounts when determining the amount of loss. Accordingly, the district

4 24-3406 court did not err in calculating the loss by including the intended loss associated with

these loan amounts.

Regardless whether we review the sentence for plain error or de novo, we hold

that the sentence should be affirmed. AFFIRMED.

5 24-3406