FILED
NOT FOR PUBLICATION
AUG 30 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10469
Plaintiff - Appellee, D.C. No. 1:13-cr-00013-RVM-1
v.
MEMORANDUM*
MARIANO KOYAMA PANGELINAN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Ramona V. Manglona, Chief Judge, Presiding
Submitted June 14, 2016**
Honolulu, Hawaii
Before: THOMAS, Chief Judge, and CALLAHAN, and MURGUIA, Circuit
Judges.
Mariano Koyama Pangelinan entered a plea agreement and pleaded guilty to
one count of conspiracy to commit visa fraud and to defraud the United States in
violation of 18 U.S.C. § 371. On appeal, he claims that the district court erred in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
ordering him to pay restitution to 99 work visa applicants deemed to have been
victims of his fraudulent acts. We have jurisdiction under 18 U.S.C. § 1291 and
affirm in part and vacate in part.
1. On de novo review, we affirm the district court’s determination that 99
aliens were victims of Pangelinan’s fraud. See United States v. De La Fuente, 353
F.3d 766, 771 (9th Cir. 2003); United States v. Sanga, 967 F.2d 1332, 1334 (9th
Cir. 1992). To qualify as a victim, a person must be “directly and proximately
harmed” by the defendant’s conduct. 18 U.S.C. § 3663(a)(2).
The record shows that, for a fee of $810.00, Pangelinan filed work visa
applications with the United States Citizenship and Immigration Services on behalf
of 99 aliens whom he purported to employ. To create the appearance that the
employment relationship was legitimate, he required applicants to sign illusory
employment contracts with the business entity he owned and charged applicants
sums for employment taxes even though they did not perform work for the
company or earn wages from it. Pangelinan reassured them that their compliance
was essential to the application process. The record further shows that during the
course of the conspiracy, Pangelinan admitted to an immigration service agent that
he did not employ any of the applicants he assisted, and disregarded the warning he
received from the agent that his conduct was illegal. Based on this evidence, we
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reject Pangelinan’s contention that the applicants were participants in his scheme.
The record sufficiently establishes that the applicants were directly and
proximately harmed by, and thus “victims” of, his deception.
2. The district court did not err in relying on circumstantial evidence to
estimate the victims’ actual losses. We review the court’s method of calculation
for abuse of discretion and the factual findings supporting that calculation for clear
error. United States v. Marks, 530 F.3d 799, 811 (9th Cir. 2008). The district
court was required to determine the “proper amount or type of restitution” by a
preponderance of the evidence. 18 U.S.C. § 3664(e). We recognize, however, that
district courts have “a degree of flexibility in accounting for a victim’s complete
losses.” United States v. Waknine, 543 F.3d 546, 557 (9th Cir. 2008) (quoting
United States v. Gordon, 393 F.3d 1044, 1053 (9th Cir. 2004)).
Here, the district court found that six victims suffered losses exceeding the
$810.00 fee charged by Pangelinan. As to the remaining victims, the district court
estimated, based on interviews conducted of 22 victims and Pangelinan’s own
statements to the immigration authorities, that each victim lost $810.00. The
evidence possesses a “sufficient indicia of reliability to support its probable
accuracy.” U.S.S.G. § 6A1.3(a); Waknine, 543 F.3d at 557 (quoting United States
v. Garcia-Sanchez, 189 F.3d 1143, 1148 (9th Cir. 1999)). Having relied on this
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evidence, the district court did not choose a methodology that was arbitrary,
irrational or contrary to law.
The record supports, and we affirm, the restitution order with respect to all
but two victims who, as the government concedes and the record demonstrates,
suffered actual losses of less than $810.00 per victim. We find that the district
court clearly erred in overestimating these losses. Accordingly, we vacate the
restitution order and remand to the district court for the limited purpose of
modifying the order to reflect the smaller losses suffered by the two victims whose
losses were overestimated.
AFFIRMED IN PART, VACATED IN PART, REMANDED. Each party
shall bear its own costs.
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