NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

STEVEN AUDETTE, AKA Steven Dale 

Audette, 

Defendant-Appellant.

No. 22-10053 

D.C. No. 

2:14-cr-00858-SPL-1 

MEMORANDUM*

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).

FILED

AUG 7 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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.
3 

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.
4 

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 
5 

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.