United States v. Steven Audette

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 7, 2023
• Docket: 22-10053
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10053

Plaintiff-Appellee, D.C. No. 2:14-cr-00858-SPL-1 v.

STEVEN AUDETTE, AKA Steven Dale MEMORANDUM* Audette,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Submitted May 15, 2023** Phoenix, Arizona

Before: NGUYEN, COLLINS, and LEE, Circuit Judges.

Steven Audette appeals the sentence imposed by the district court following

a remand from this court for resentencing. Audette also contends that his

resentencing counsel provided ineffective assistance. We have jurisdiction under

* 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). 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Reviewing the district court’s factual

findings for clear error, and its application of the Sentencing Guidelines to the facts

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

2017) (en banc), we affirm.1

1. Audette contends that the district court erred in calculating the total

offense level (TOL) under the Sentencing Guidelines. In particular, he contests (1)

the sixteen-level increase for a loss amount of $3.4 million, U.S. Sent’g Guidelines

Manual § 2B1.1(b)(1) (U.S. Sent’g Comm’n 2016); (2) the two-level increase for

an offense involving ten or more victims, id. § 2B1.1(b)(2); and (3) the two-level

increase for targeting a vulnerable victim, id. § 3A1.1(b).

First, the district court’s calculation of a $3.4 million loss amount was not

clearly erroneous. This determination was based on a ledger in which Audette

hand-recorded the funds each victim gave him and on a summary chart reflecting

the information in the ledger. Audette contends that the ledger was unreliable

because it contained errors and included entries for loans he had not yet received

and money he intended to gift rather than repay. However, Agent Darryl Hill of

the Bureau of Alcohol, Tobacco, Firearms and Explosives testified that Audette

informed him of the ledger and its location during the execution of a search

1 Because the parties are familiar with the facts, we recite them only as necessary to resolve the appeal.

2 warrant at Audette’s residence. Hill audio-recorded Audette’s explanation of his

ledger, which Audette described as containing “the list of the people [he] borrowed

money from from day one,” and which indicated a grand total of $3.4 million. The

testimony of IRS Criminal Investigation Special Agent Scott Kennedy as to the

summary chart he prepared similarly supports the loss calculation. While it is true

that the summary chart identified errors in the ledger, Kennedy testified that these

were merely mathematical errors in some subtotals; the ledger’s grand total

remained accurate. In addition, Kennedy testified that he corroborated dozens of

ledger entries by cross-referencing bank records.2

Second, the record supports the district court’s finding of ten or more

victims. Audette claims that only the three victims whose losses were included in

the restitution amount should count for purposes of the ten-or-more-victims

enhancement. But he conflates actual loss and restitution. The restitution amount

of $2.1 million was based only on the two victims who affirmatively requested

restitution. But a victim who suffers an actual loss still counts as a “victim” even if

that individual does not request restitution. See U.S. Sent’g Guidelines Manual

§ 2B1.1 cmt. n.1 (U.S. Sent’g Comm’n 2016) (“‘Victim’ means . . . any person

2 The loss amount Audette pressed at the original sentencing hearing was $2.1 million, which would have resulted in the same TOL calculation under the applicable 2016 U.S. Sentencing Guidelines Manual. Thus, even if the district court had erred, the error would be harmless.

3 who sustained any part of the actual loss determined under subsection

(b)(1) . . . .”); id. cmt. n.3 (“‘Actual loss’ means the reasonably foreseeable

pecuniary harm that resulted from the offense.”). Audette has consistently

admitted that his ledger listed people who gave him money. Again, we reject his

argument that the ledger, which listed more than ten victims, was unreliable.

Finally, the district court’s finding that Louise Moore qualifies as a

“vulnerable victim” is amply supported by the record. U.S. Sent’g Guidelines

Manual § 3A1.1(b) (U.S. Sent’g Comm’n 2016). Audette argues that the

determination was based on age alone, in violation of United States v. Luca, 183

F.3d 1018 (9th Cir. 1999). In Luca, the district court made insufficient findings to

support an age-based enhancement because it “did not identify . . . specific

individuals whose ages rendered them particularly vulnerable,” and it “made no

other age-based findings.” Id. at 1026. We therefore remanded for “specific fact

findings regarding the vulnerability of [the defendant’s] victims.” Id. at 1028. In

contrast, the district court here made individualized findings at the original

sentencing hearing about Moore’s vulnerability. It found that Audette knew or

should have known that Moore was vulnerable based on her age and physical

disabilities, which Audette treated as a medical professional. It further found that

Audette exploited Moore’s fear for the physical safety of her family members by

making threats to her and her daughter—including a threat that the limbs of

4 Moore’s two-year-old grandchild would be severed if Moore did not provide

money. See United States v. James, 139 F.3d 709, 714–15 (9th Cir. 1998). The

district court noted that Moore gave Audette over $2.5 million, more than any

other victim, over a lengthy period. See United States v. Randall, 162 F.3d 557,

560 (9th Cir. 1998).

2. Audette argues that his resentencing counsel provided

unconstitutionally deficient representation. As a “general rule,” we do not review

ineffective assistance of counsel claims on direct appeal. United States v.

McGowan, 668 F.3d 601, 605 (9th Cir. 2012); see United States v. Pope, 841 F.2d

954, 958 (9th Cir. 1988) (“Challenge by way of a habeas corpus proceeding is

preferable as it permits the defendant to develop a record as to what counsel did,

why it was done, and what, if any, prejudice resulted.”). Audette claims that an

“extraordinary exception[],” McGowan, 668 F.3d at 605, to this general rule

applies. But we disagree that the performance of Audette’s resentencing counsel

was “so inadequate that it obviously denie[d] [him] his Sixth Amendment right to

counsel.” Id. (citation omitted). We thus decline to review the ineffective

assistance of counsel claim on direct appeal.

AFFIRMED.