NOT FOR PUBLICATION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 f ollowing a remand from this court for resentencing

. Audette also contends that his

re sentencing 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). 

# FIL ED

AUG 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

18 U.S.C. § 3 742 and 28 U.S.C. § 1291. R eview ing 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 distr ict 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 i n 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 D arryl 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 ledg er, 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 t he summary chart identifie d errors in the ledger , Kennedy testified that these were merely mathematical errors in some subtotals ; t he ledger’s gran d total remained accurate

. In addition, Kennedy testified that he corroborated dozens of ledger entries by cross

- referenc ing bank records. 2 Second, the record supports the district court’s finding of ten or more victims. Audette claims that only the thr ee 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 pr essed 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. ”)

. A udette has consistently admitted that his ledger listed people wh o 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 amp ly 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 viola tion 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 vulnerab le , ” 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 treate d as a medical professional

. It further found that Audette exploited Moore’s fear for the physical safety of her family m embers by making threats to her and her daughter

— including a threat that the limbs of5

Moore’s two

- year - old grandchild would be severed if Moore did not provide
money
. S ee United States v. James, 139 F.3d 709, 714

– 15 (9th Cir. 1998)

. The district court noted that Moor e gave Audette over $2.5 million, more than any other victim, over a lengthy period

. S ee United States v. Randall , 162 F.3d 557, 560 (9th Cir. 1998)

. 2. Audette argues that his resentencing counsel provided

un constitutionally deficient representation

. As a “general rule,” we do not review ineffective assistance of counsel claims on direct appeal

. United States v.
McG owan, 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, an d 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 appe al.
AFFIRMED.