US v. Kaplan, No. 15-30213 (8-29-16)(Ezra, D.J., w/Hawkins & McKeown).  This is a sentencing appeal that focuses on restitution and notice for an upward departure.

Defendants sought to manufacture hashish oil in their apartment.  The resulting explosion started a fire that destroyed the building, severely injured seven, and tragically killed one.  The presentence report, prepared after their guilty pleas, found a range of 24 to 30 months. The report noted a basis for an upward departure.

At sentencing, the court departed upward to 36 months. The court also ordered restitution in the amount of $2,771,929.  The basis was "replacement value" as to fair market value.  On appeal, defendants argue that the restitution should be fair market, at an amount $40,000 lower (!?). They also argue that there was procedural error in the departure.

The defendants lose.

The 9th acknowledged that fair market value is a preferred method for valuing loss.  However, there are instances where it is difficult to ascertain, as here for such as for clothes, furniture, and other property. The court did not err in finding adequate basis for awarding replacement value for such items and articles under the MVRA.

The 9th found no procedural error in the departure. Under plain error, the 9th took notice that the defendants were on notice as the departure was listed in the PSR.  The departure was not substantively unreasonable.  And the sentencing court, in likening the actions to setting a boat adrift in the Arctic with the hatches welded shut to increase profitability, was not inflammatory; the analogy was in response to the defense argument that the death was akin to drunk driving--without intent.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/07/15-30213.pdf