NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JEFFREY NOWAK,

Defendant-Appellant. Nos. 17-10120 17-10384 D.C. No. 2:13-cr-00132-LDG-VCF-2
MEMORANDUM *
Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding Subm itted August 17, 2018 * * San Francisco, California Before: BEA and CHRISTEN, Circuit Judges, and McLAUGHLIN, * * * District Judge. 

# FILED
AUG 24 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The panel unanim ously concludes this case is suitable for decision without oral argum e nt. See Fed. R. App. P. 34(a)(2).

* * * The Honorable Mary A. McLaughlin, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.Defendant-Appellant Jeffrey Nowak (“Nowak”) appeals the district court’s

orders denying his m otion for a Franks hearing and denying his m otion for a new trial based on newly discovered evidence. See Fed. R. Crim P. 33(b)(1). Nowak also appeals his prison sentence of 41 m onths. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm
. 1. Nowak is not entitled to an evidentiary hearing because of alleged deficiencies in a search warrant affidavit prepared by IRS Special Agent Joshua Bottjer (“Agent Bottjer”). See Franks v. Delaware , 438 U.S. 154, 155–56 (1978). Nowak failed to m ake a prelim inary showing that Agent Bottjer deliberately or recklessly om itted in his warrant affidavit knowledge that cash deposits in Nowak’s bank account were attributable to gam bling winnings from 2006 through 2009. See United States v. Stanert , 762 F.2d 775, 780 (9th Cir. 1985). Additionally, Nowak’s gam bling winnings were not m aterial to the m a gistrate judge’s finding of probable cause. See United States v. Martinez-Garcia , 397 F.3d 1205, 1215 (9th Cir. 2005). Even assum ing Nowak received all of his gam bling winnings in cash, a substantial portion of his cash deposits rem ained unaccounted for. Nowak also suffered net gam bling losses of nearly $65,000 during the relevant tim e period.

22. The district court did not abuse its discretion by denying Nowak’s m otion

for a new trial. To com

pute restitution for Nowak’s co-conspirator, Ram zi Sulim an (“Sulim an”), the governm ent om itted his unpaid, federal taxes from 2006 in the am ount of $41,876. Although this inform ation m ay constitute newly discovered evidence, it does not warrant a new trial. See United States v. Hinkson , 585 F.3d 1247, 1264 (9th Cir. 2009) (en banc). Additional evidence regarding the governm ent’s m ethod of calculating the am ount of Sulim an’s restitution is im m aterial and cum

ulative. See id. ; United States v. Kohring , 637 F.3d 895, 910 (9th Cir. 2011)

. During Nowak’s trial, the defense successfully im peached Sulim an by establishing that his plea deal included a restitution figure that was less than his overall tax liability. Further, a new trial would not result in acquittal in light of overwhelm ing evidence supporting the jury’s guilty ver dict. See United States v. Harrington , 410 F.3d 598, 601 (9th Cir. 2005). 3. Nowak’s 41-m onth sentence does not constitute an abuse of discretion under 18 U.S.C. § 3553(a)(6). Although Sulim an received a sentence of 12
m onths and one day, Nowak and Sulim an do not have sim ilar records and were not found guilty of sim ilar conduct. See 18 U.S.C. § 3553(a)(6). Sulim an was convicted of one count of conspiracy to defraud the United States, see 18 U.S.C. § 371, while Nowak was found guilty of one count of conspiracy, three counts of

3assisting in filing false corporate tax returns, and four counts of attem pting to

evade and defeat individual incom e taxes, see 26 U.S.C. §§ 7201, 7206(2); United States v. Monroe , 943 F.2d 1007, 1017 (9th Cir. 1991). Whereas Sulim an cooperated with the governm ent by pleading guilty, Nowak contested his charges by proceeding to trial. See United States v. Carter , 560 F.3d 1107, 1121 (9th Cir. 2009); U nited States v. Sanchez Solis , 882 F.2d 693, 699 (2d Cir. 1989). Nowak’s sentence was therefore reasonable. AFFIRMED.

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