United States of America v. James August

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES AUGUST,
Defendant-Appellant.
No. 17-10380
D.C. No. 1:16-cr-00785-SOM
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, District Judge, Presiding
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
James August appeals from the district court’s judgment and challenges the
restitution award to the victim, Hawaiian Airlines (“HA”), following August’s
guilty-plea conviction to interference with flight crew members and attendants, in
violation of 49 U.S.C. § 46504. We have jurisdiction under 28 U.S.C.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAY 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-10380
§ 1291, reviewing for abuse of discretion, see United States v. Waknine, 543 F.3d
546, 555 (9th Cir. 2008), we affirm.
Following two evidentiary hearings, a review of the pilot’s declaration, and
fourteen exhibits documenting the costs to HA associated with the airplane’s return
to Honolulu following August’s disruptive behavior in flight, the district court
ordered August to pay $97,817.29.
August first contends that the court erred in awarding turn-around costs. He
argues that HA’s losses were caused not by his conduct, but by the pilot’s
discretionary decision to return to Honolulu rather than land in San Francisco or
Los Angeles or continue on to New York. Contrary to August’s argument, this
court has approved “restitution awards that included losses at least one step
removed from the offense conduct itself” as long as “any subsequent action that
contributes to the loss, such as an intervening cause, [is] directly related to the
defendant’s conduct.” United States v. Gamma Tech Indus., Inc., 265 F.3d 917,
928 (9th Cir. 2001). The pilot’s declaration established that he turned the plane
around after receiving reports of August’s disruptive conduct because Honolulu
was the closest airport. The district court did not abuse its discretion in concluding
that the pilot’s decision was sufficiently related to defendant’s conduct to support
the award of turn-around costs. See id.
August next contends that the district court improperly found that August

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had the ability to pay restitution. The presentence report reflected that August had
minimum monthly bills and was able to earn over $36 an hour in his occupation.
The court did not abuse its discretion in ordering him to pay restitution during his
three-year term of probation in the amount of 10% of his gross monthly income.
See United States v. Stoddard, 150 F.3d 1140, 1147 (9th Cir. 1998) (restitution
may be ordered where the record contains some evidence of future ability to pay).1
Lastly, August challenges the district court’s decision to order restitution for
the cost of re-booking passengers on the first available flight, and for maintenance
and replacement crew costs. He argues that the government’s evidence supporting
these costs was insufficient and that the costs were not the direct result of his
crime. We conclude that the re-booking, maintenance, and replacement crew costs
were adequately supported by the exhibits and testimony. See Waknine, 543 F.3d
at 557 (loss amount must be supported by a preponderance of the evidence “that
possesses sufficient indicia of reliability to support its probable accuracy” (internal
quotations omitted)). Furthermore, the costs were sufficiently related to August’s
conduct to justify the award. See Gamma Tech Indus., Inc., 265 F.3d at 928.
AFFIRMED.
1 To the extent August asserts in his reply brief that the district court violated
Federal Rule of Criminal Procedure 32 by failing to make an explicit finding that
he was able to pay restitution, we decline to reach that argument. See United
States Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995) (issues not specifically and
distinctly raised and argued in the opening brief need not be considered).

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