NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 23 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10644
Plaintiff - Appellee, D.C. No. 1:10-cr-00099-DAE-2
v.
MEMORANDUM*
ERIK GLENN LEDFORD,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted June 12, 2014
Honolulu, Hawaii
Before: W. FLETCHER, IKUTA, and HURWITZ, Circuit Judges.
Erik Ledford, convicted of wire fraud under 18 U.S.C. § 1343, appeals his
sentence and the district court’s restitution order. We have jurisdiction pursuant to
18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court did not err in relying on the spreadsheet prepared by the
government to conclude that the fraud loss attributable to Ledford exceeded
$200,000. See United States v. Ali, 620 F.3d 1062, 1073 (9th Cir. 2010). The
spreadsheet had “sufficient indicia of reliability,” id., because it was based on
admissions by other members of the scheme, phone records showing the use of
scheme members’ phones in conjunction with fraudulent transactions, and other
corroborating evidence. The declarations by certain merchants that they had no
record of the losses at issue did not undercut the reliability of the spreadsheet,
given the district court’s finding that many of the merchants were small businesses
with unsophisticated record keeping and the evidence in the record that some of the
fraudulent transactions resulted in a loss to a victim other than the merchant
involved. Nor did the discrepancy between Jennifer Titherington’s stipulation and
her testimony at Ledford’s hearing regarding the transactions in which she was
involved undercut the reliability of the spreadsheet. The district court did not
clearly err in crediting Titherington’s testimony that she participated in the
additional transactions listed on the spreadsheet, and the court did not include in its
loss calculation transactions that were corroborated only through Titherington’s
testimony. Because the district court’s loss calculation was supported by clear and
convincing evidence, the court did not err by imposing the 12-level enhancement
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pursuant to U.S.S.G. § 2B1.1(b)(1). We therefore need not decide whether the
district court could have applied the preponderance of the evidence standard. Cf.
Ali, 620 F.3d at 1073.
Ledford’s remaining challenges to the district court’s restitution
determination and application of a 4-level enhancement under U.S.S.G.
§ 2B1.1(b)(2) are barred by the appellate waiver in his plea agreement. Cf. United
States v. Speelman, 431 F.3d 1226, 1229 (9th Cir. 2005). On its face, the waiver
does not permit an appeal from the district court’s rulings on restitution or the
§ 2B1.1(b)(2) enhancement. Contrary to Ledford’s argument, in the context of a
scheme such as the one at issue here, the amount of fraud loss is independent of the
number of victims, and therefore the waiver is not ambiguous.
AFFIRMED in part, and DISMISSED in part.
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