United States v. Seth Sundberg

MEMORANDUM ** Defendant-appellant Seth Sundberg (“Sundberg”) appeals the district court’s *712 entry of judgment on his guilty plea. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Under Federal Rule of Criminal Procedure ll(b)(l)(K), a judge must inform the defendant of, and determine that the defendant understands, the court’s authority to order restitution. Despite this express requirement, a judge’s failure to comply “is harmless error if it does not affect substantial rights.” Fed. R.Crim. Pro. 11(h). We have held that a district court’s failure to advise a defendant of its restitution authority is harmless if “the defendant was advised he was subject to a fine in an amount in excess of the restitution imposed.” United States v. Crawford, 169 F.3d 590, 592 (9th Cir.1999) (emphasis added). In this case, Sundberg admitted the facts of the indictment, including his unlawful receipt of a $5 million tax refund. Although the district court failed to advise Sundberg of its restitution authority, the court affirmatively warned Sundberg that he could face “a $250,000 fine or twice the value of the gross gain or loss,” thus putting Sund-berg on notice that he could suffer a fine in excess of $10 million. Because this figure is far higher than Sundberg’s eventual $2,488,613.38 restitution order, the error was harmless. AFFIRMED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.