Thursday, August 11, 2016

US v. Zhou, No. 14-50288 (8-10-16)(Graber w/Silverman; dissent by Tashima). The defendant pled to using an unauthorized access device to make fraudulent purchases at Nordstrom.  No mention was made of similar fraudulent purchases at Target.  Yet, at sentencing, the court ordered restitution for both.  On appeal, under plain error, the 9th affirmed the court's order.

The 9th first decides what the standard of review should be under the Mandatory Victims Restitution Act.  Since there was no objection, plain error was appropriate. The 9th concluded that "the decline to consider " standard for factual disputes was really an application of plain error.

On the merits, with the burden on the defendant, the majority rooted around the record and pleadings to declare--haha!--there was enough evidence to support the restitution order.  This includes dates, language of the count that reads the fraud occurred here and "elsewhere", and the PSR report.  

Tashima finds the majority's reading of the indictment and record strained, and so dissents.

The decision is here:


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