United States of America v. Matt Eugene Ruck

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MATT EUGENE RUCK,
Defendant-Appellant.
No. 16-30278
D.C. No.
3:14-cr-00246-EJL-1
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MATT EUGENE RUCK,
Defendant-Appellant.
No. 16-30279
D.C. No.
3:15-cr-00062-EJL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MATT EUGENE RUCK,
No. 16-30280
D.C. No.
3:16-cr-00183-EJL-1
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
APR 6 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted March 9, 2018
Seattle, Washington
Before: RAWLINSON and CLIFTON, Circuit Judges, and FREUDENTHAL,**
Chief District Judge.
Defendant Matt Eugene Ruck challenges his sentence from a global
sentencing on three separate federal cases including 1) fourteen counts of wire
fraud and fourteen counts of theft of government property; 2) one count of
Unlawful Possession of Firearms and Ammunition in violation of 18 U.S.C. §
922(g)(1); and 3) one count of Aiding and Abetting Making False Statements in
violation of 18 U.S.C. § 1001. The district court sentenced Ruck on all three
matters to an above-guideline 60 months imprisonment. The district court also
ordered restitution in the amount of $206,081.35. On appeal, Ruck argues the
district court erred in calculating his applicable guideline range by improperly
applying a 2-level enhancement under U.S.S.G. § 3B1.3, by departing upward
from the applicable guideline range, and by improperly calculating the restitution
amount. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
** The Honorable Nancy Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.

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On appeal, Ruck first argues the district court erred in calculating his
applicable guideline range by improperly applying a 2-level enhancement under
U.S.S.G. § 3B1.3 for abuse of position of trust or use of special skill. “This court
reviews a district court's interpretation of the Sentencing Guidelines de novo, its
factual findings for clear error, and its application of the Guidelines to the facts of
the case for abuse of discretion.” United States v. Laurienti, 731 F.3d 967, 973 (9th
Cir. 2013) (citing United States v. Gomez–Leon, 545 F.3d 777, 782 (9th Cir.
2008)).
Ruck argues that the district court improperly applied the U.S.S.G. § 3B1.3
enhancement by treating the United States Border Patrol as a victim, when the only
victim in the case was Elavon, the credit card processor. This argument lacks
merit. The United States Border Patrol was the victim of Ruck’s convictions for
theft of government property and was properly considered a victim in this case.
Additionally, the district court’s ruling primarily relied on the special skill
provision of U.S.S.G. § 3B1.3 and Ruck failed to challenge that application. As a
result, Ruck waived this argument. See Indep. Towers of Washington v.
Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“we will not consider any claims
that were not actually argued in appellant's opening brief”). For all these reasons,
Ruck failed to establish that the district court erred in applying the 2-level
enhancement under U.S.S.G. § 3B1.3.

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Ruck also argues that the district court erred by departing upward from the
applicable guideline range. We review “all sentencing decisions for an abuse of
discretion, regardless of whether the district court applies a sentence inside or
outside the suggested guidelines range.” United States v. Tankersley, 537 F.3d
1100, 1109 (9th Cir. 2008) (citation omitted). The district court adequately
explained its reasons for an above guideline sentence. See United States v. Carty,
520 F.3d 984, 992 (9th Cir. 2008) (en banc). The district court relied on
undisputed facts that were properly in the record and considered the totality of
Ruck’s conduct in giving Ruck an above guideline range sentence. The district
court considered the calculated method Ruck used to commit his crimes, the people
he victimized, and the degree of harm involved. Given the facts in this case, the
district court did not abuse its discretion in sentencing Ruck to 60 months
imprisonment.
Finally, Ruck claims the district court’s restitution amount is not supported
by evidence. Ruck failed to raise this claim with the district court. We review for
plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010), and conclude there is none. The district court relied on the information
Elavon provided in the PSR regarding the amount of loss it suffered and applied
appropriate credits.

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Appellee’s motion to file supplemental excerpts under seal and submit
sealed document is GRANTED.
AFFIRMED.

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