NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50127
Plaintiff-Appellee, D.C. No.
2:13-cr-00675-PSG-1
v.
RODRIGO PABLO LOZANO, AKA El MEMORANDUM*
Profe, AKA Paul Lozano, AKA Rodrigo
Lozano, AKA Rodrigo Paul Lozano,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted April 12, 2019
Pasadena, California
Before: PAEZ and CLIFTON, Circuit Judges, and ENGLAND,** District Judge.
Defendant Rodrigo Pablo Lozano (“Defendant”) appeals from the district
court’s trial and sentencing-related decisions. Defendant, an experienced tax
preparer, submitted thousands of fraudulent federal income tax returns to the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
Internal Revenue Service (“IRS”) and was convicted after a jury trial of one count
of Conspiracy to Defraud the United States with Respect to Claims in violation of
18 U.S.C. § 286. Defendant argues on appeal that the district court made the
following errors during trial and in its sentencing guideline calculations: giving the
jury a “deliberate avoidance” instruction when Defendant was only charged with
conspiracy; calculating the applicable sentencing guidelines based on “intended” as
opposed to “actual” loss; making that calculation based on a preponderance of the
evidence rather than by clear and convincing evidence; and ordering restitution
without the benefit of a jury finding, as purportedly required by Apprendi v. New
Jersey, 530 U.S. 466 (2000). We have jurisdiction under 18 U.S.C. § 3742 and 28
U.S.C. § 1291, and we affirm.
1. The district court permissibly instructed the jury on deliberate
avoidance. United States v. Ramos-Atondo, 732 F.3d 1113, 1120 (9th Cir. 2013);
United States v. Nicholson, 677 F.2d 706, 710-11 (9th Cir. 1982). Defendant
points to no clearly irreconcilable intervening authority that would allow this Court
to disregard that binding case law. See Miller v. Gammie, 335 F.3d 889, 900
(9th Cir. 2003) (en banc). Nor has Defendant identified any error in the form of
the instruction, which derives from this circuit’s pattern instruction. Accordingly,
no instructional error infected the jury’s decision.
2. Given the plain language of U.S.S.G. §§ 2T1.4 and 2T1.1, the district
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court’s use of “intended loss” was both correct and consistent with the general
fraud guidelines, U.S.S.G. § 2B1.1. Additionally, the court was not required to
make its findings based on an elevated clear and convincing evidence standard in
this conspiracy case. See United States v. Barragan, 871 F.3d 689, 717-19 (9th
Cir. 2017); United States v. Treadwell, 593 F.3d 990, 1001 (9th Cir. 2010). The
district court’s guidelines calculations were thus proper.
3. Finally, restitution is not a question that is subject to the protections of
Apprendi. United States v. Green, 722 F.3d 1146, 1149-50 (9th Cir. 2013). And
again, Defendant fails to point to any clearly irreconcilable intervening authority
that compels a conclusion to the contrary. The district court therefore did not err in
its restitution order.
AFFIRMED.
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