NOT FOR PUBLICATION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

UNITED STATES OF AMERICA ,

Plaintiff

- Appell ee ,

v. ANDRE ANTONIO WALTERS ,

Defendant

- Appell ant

. No. 17

- 10266
D.C. No. 2: 12

- cr - 00375

- TLN

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley , District Judge, Presiding Argued and Submitted July 16 , 201 9 San Francisco, California Before: PAEZ and RAWLINSON , Circuit Judges, and HUCK, ** District Judge. Appellant, Andre Antonio Walters, was convicted on four counts of mail fraud resulting from his participation in a complex scheme to defraud the State of California Employment Development Department (“EDD”). Walters argues that: (1) the d istrict c ourt erred in holding him responsible for a loss amount of $5,263,934;

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

- 3.

** The Honorable Paul C. Huck, United States District Judge for the U.S. District Court for Southern Florida, sitting by designation. 

# FILED

DEC 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 17

- 10266

(2) the district court erred in ordering restitution in the amount of $5,263,934; (3) if the correct loss amount is $5,263,934 , his 73

- month term of imprisonment is substantively unreasonable; and (4) the district court abused its discretion by denying his request to continue the sentencing hearing

. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and we affirm

. 1. Loss Calculation and Restitution

“ We review the district court ’ s interpretation of the Guidelines de novo, the district court ’ s application of the Guidelines to the facts of the case for abuse of discretion, and the district court ’ s factual findings for cl ear error. ” United States v. Treadwell , 593 F.3d 990, 999 (9th Cir. 2010)

. The district court correctly determined the amount of loss by a preponderance of the evidence. See id. at 1001

– 02

. Moreover, t he district court did not err in finding that Walters was responsible for the full loss associated with two shell companies, Peco Media and Financial Builders Emporium

. See id. at 100 4

– 05. Walters may only be held responsible for “ the loss that fell within the scope of [hi s] agreement with his co

- conspirators and was reasonably foreseeable to [him] .” Id. at 1002 ; see also U.S.S.G. § 1B1.3(a)(1)(B)

. There is ample evidence in the record of Walters’ extensive involvement in the unemployment benefits fraud scheme and with the scheme’s leader, Donye Mitchell , such that the loss of the entire scheme tied to Peco Media and Financial Builders Emporium was3 17

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reasonably foreseeable to Walters

. The evidence includes extensive spreadsheets, documents, and trial testimony id entifying Walters as a significant and knowing participant in the scheme. Walters , along with the other managers, also used common facilities, including call centers set up in two condominium units , to perpetuate the scheme. We also find no error in the d istrict court’s restitution order because the ordered restitution amount is EDD’s actual loss for which Walters was properly held responsible. 1 See United States v. Thomsen , 830 F.3d 1049, 10 65

– 66 (9th Cir. 2016).
2. Substantive Reasonableness of Sentence
We review a sentence “under a deferential abuse

- of

- discretion standard,” and will set a sentence aside only if it is “procedurally erroneous or substantively unreasonable.” United States v. Carty , 520 F.3d 98 4, 98 8 , 99 3 (9th Cir. 2008 ). “The touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United
States v. Ressam , 679 F.3d 1069, 1089 (9th Cir. 2012) (citation omitted).

1 We review de novo “[t]he legality of an order of restitution” and review for clear error “factual findings supporting the order .” United States v. Brock

- Davis , 504 F.3d 991, 996 (9th Cir. 2007) (citations omitted). “Provided that it is within the bounds of the statutory framework,” we review a restitution order for abuse of discretion. Id. (citations omitted).4 17

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Walters argues that his sentence is substantively unreasonably considering his limited role in the scheme, his likely deportation, and his co

- schemers ’ shorter
sentences. Walters ’ sentence , which is twenty

- four months below the low end of the guidelines range, is not substantively unreasonable. The record reflects that the district court considered the § 3553(a) factors in determining Walters’ sentence. And, the district court detailed the overwhelming evidence against Walters concerning his role in the scheme whic h the district court considered in determining Walters’ sentence

. Further, Walters is not similarly situated to his co

- schemers because unlike Walters, his co

- schemers plead guilty to their charges and cooperated with the Government

. See United States v. C arter , 560 F.3d 1107, 1121 (9th Cir. 2009) (“[A] sentencing disparity based on cooperation [with the Government] is not unreasonable.”). T he district court was also not required to consider Walters’ likely deportation as a factor in determining Walters’ se ntence

. See United States v. Crippen , 961 F.2d 882, 885 (9th Cir. 1992); United States v. Alvarez

- Cardenas , 902 F.2d 734, 737 (9th Cir. 1990)

. 3. Denial of Request for Continuance We review for abuse of discretion the decision to grant or deny a requested continuance. United States v. Flynt , 756 F.2d 1352, 1358 (9th Cir. 1985)

. Here, t he district court did not abuse its discretion in denying Walters’ fourth request for a continuance of his sentencing hearing. Walters was not meaningfully prejudice d by5 17

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the denial , he failed to exercise diligence , and the evidence that Walters hoped to present would not have been useful in light of other available evidence in the record.
See United States v. Rivera

- Guerrero , 426 F.3d 1130, 1130

– 40 (9th Cir. 2005); Flynt , 756 F.2d a t 1358

– 59

. AFFIRMED.