NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ANDRE ANTONIO WALTERS, 

Defendant-Appellant.

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, 2019

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 district court 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 APPEALS
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(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 clear 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, the 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 1004–

05. Walters may only be held responsible for “the loss that fell within the scope of 

[his] 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 was 
3 17-10266

reasonably foreseeable to Walters. The evidence includes extensive spreadsheets, 

documents, and trial testimony identifying 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 district 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, 1065–66 (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 984, 988, 993 (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).
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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 which 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. Carter, 560 F.3d 1107, 1121 (9th Cir. 

2009) (“[A] sentencing disparity based on cooperation [with the Government] is not 

unreasonable.”). The district court was also not required to consider Walters’ likely 

deportation as a factor in determining Walters’ sentence. 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, the 

district court did not abuse its discretion in denying Walters’ fourth request for a 

continuance of his sentencing hearing. Walters was not meaningfully prejudiced by 
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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 at 1358–59.

AFFIRMED.