FILED
NOT FOR PUBLICATION JUN 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50374
Plaintiff - Appellee, D.C. No. 2:10-cr-00372-JHN
v.
MEMORANDUM *
GREG AYO DAFINONE,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Submitted June 18, 2013 **
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
Greg Ayo Dafinone appeals from the district court’s judgment and
challenges the 77-month sentence imposed following his guilty-plea conviction for
bank fraud, in violation of 18 U.S.C. § 1344. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
*
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).
The government contends that the appeal is barred by an appeal waiver. We
decline to dismiss on the basis of the appeal waiver. See United States v. Jacobo
Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc).
Dafinone contends that the district court erred in imposing a 14-level
sentencing enhancement under U.S.S.G. § 2B1.1(b)(1)(H) because its loss
calculation was not supported by the evidence. The parties dispute whether the
government was required to prove the facts supporting the enhancement by a
preponderance of the evidence or by a clear and convincing evidence standard. We
need not resolve this issue, because there was no factual dispute as to the actual
losses suffered by the victim banks. Moreover, the district court did not err in
finding that Dafinone was part of a common fraudulent scheme, and attributing all
losses occasioned by the scheme to him. See U.S.S.G. § 1B1.3(a)(1)(B) (specific
offense characteristic determined on basis of all reasonably foreseeable acts
undertaken by participants in a joint criminal activity in furtherance of that
activity); United States v. Showalter, 569 F.3d 1150, 1159 (9th Cir. 2009) (district
court’s factual findings supporting a sentence enhancement are reviewed for clear
error).
AFFIRMED.
2 11-50374