NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

KATHY FUNTILA, AKA Kathy Retter, 

Defendant-Appellant.

No. 19-10038 

D.C. No. 1:17-cr-00515-LEK-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Hawaii

Leslie E. Kobayashi, District Judge, Presiding

Submitted July 14, 2020**

Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.

Kathy Funtila appeals from the district court’s judgment and challenges the 

119-month sentence imposed following her guilty-plea conviction for bank fraud, 

in violation of 18 U.S.C. § 1344, and aggravated identity theft, in violation of 18

U.S.C. § 1028A(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we 

* 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

JUL 20 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-10038 

affirm.

Funtila first contends that the district court clearly erred by finding that one 

of the victims of her fraud, SMAC Hawaii, Inc. (“SMAC”), incurred financial 

hardship through no fault of its own. She asserts that, in fact, SMAC must have 

known that the funds Funtila fraudulently obtained from Hawaii National Bank 

were borrowed and thus SMAC bore some responsibility for spending the funds. 

However, as the district court explained, it was Funtila’s conduct in obtaining 

those unauthorized loans that resulted in SMAC’s legal liability on the loans, and 

ultimately caused SMAC’s dissolution when it could not repay. On this record, the 

district court did not clearly err in concluding that Funtila was solely responsible 

for the losses to SMAC. See United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 

2010) (“In order to reverse a district court’s factual findings as clearly erroneous, 

we must determine that the district court’s factual findings were illogical, 

implausible, or without support in the record.”).

Funtila also contends that the above-Guidelines sentence is substantively

unreasonable. We conclude that, in light of the reasons cited by the district court 

and the totality of the circumstances, the district court did not abuse its discretion 

in imposing the 119-month sentence. See Gall v. United States, 552 U.S. 38, 51 

(2007); see also United States v. Christensen, 732 F.3d 1094, 1101 (9th Cir. 2013) 

(district court may vary upward based on factors already accounted for in the 
3 19-10038 

Guidelines). Moreover, the district court adequately explained the upward 

variance. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). 

The motion of Cynthia A. Kagiwada, Esq., to be relieved as appellant’s 

counsel of record is granted. Funtila’s motion for appointment of substitute 

counsel is denied. If Funtila wishes to seek rehearing, she may file a pro se 

petition pursuant to Federal Rules of Appellate Procedure 35 and 40.

The Clerk will serve a copy of this disposition on counsel Kagiwada, as well 

as on Funtila individually at: Reg. No. 06000-122, FDC Philadelphia, Federal 

Detention Center, P.O. Box 562, Philadelphia, PA 19105.

AFFIRMED.