United States v. Swanberg

MEMORANDUM ** William A. Swanberg appeals from a restitution order imposed following his guilty-plea conviction for mail fraud, in violation of 18 U.S.C. § 1341 , and wire fraud, in violation of 18 U.S.C. § 1343 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Swanberg contends that the district court erred by imposing $120,000 in restitution because, in his plea agreement, the parties stipulated that the amount of loss was lower. However, Swanberg pleaded guilty pursuant to Fed.R.Crim.P. 11(c)(1)(B), and, therefore, the district court was not bound by the recommendations in his plea agreement. See United States v. Anglin, 215 F.3d 1064, 1067-68 (9th Cir.2000). Swanberg also contends that the record does not support the amount of restitution ordered. We conclude that there was no plain error because, at sentencing, Swan-berg requested that the district court impose $120,000 in restitution. See United States v. Zink, 107 F.3d 716, 719-20 (9th Cir.1997). Finally, Swanberg contends that the district court committed error under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), by increasing his restitution based upon its own factual findings regarding the amount of loss. However, as Swanberg concedes, that argument is foreclosed. See United States v. Bussell, 414 F.3d 1048, 1060-61 (9th Cir. 2005). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.