United States v. Ekundayo Erhabor , 507 F. App'x 664 ( 2013 )

FILED
NOT FOR PUBLICATION JAN 02 2013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. 11-50515
Plaintiff - Appellee, D.C. No. 8:11-cr-00027-SVW
v.
MEMORANDUM *
EKUNDAYO AYO ERHABOR,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted December 19, 2012 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Ekundayo Ayo Erhabor appeals from the district court’s judgment and
challenges the restitution order and 36-month sentence imposed following his
guilty-plea conviction for wire fraud, in violation of 18 U.S.C. § 1343. We have
*
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).
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Erhabor contends that there was insufficient evidence to support the district
court’s loss calculation of $260,641.37 under U.S.S.G. § 2B1.1 and restitution
order in the amount of $184,334.08. The record reflects that the district court did
not clearly err in calculating the amount of loss in light of Erhabor’s factual
admissions in his plea agreement and the uncontradicted evidence in the
presentence report. See United States v. Showalter, 569 F.3d 1150, 1161 (9th Cir.
2009) (stipulation in plea agreement provides a sufficient basis for an
enhancement); United States v. Charlesworth, 217 F.3d 1155, 1160-61 (9th Cir.
2000) (district court can rely on an unchallenged portion of a presentence report).
Similarly, because Erharbor did not contest the assertion in the presentence report
that restitution should be awarded in the amount of $184,334.08, the district court
did not abuse its discretion in imposing the restitution award. See United States
Yeung, 672 F.3d 594, 600 (9th Cir. 2012); Charlesworth, 217 F.3d at 1160-61.
Erhabor also contends that the district court procedurally erred by
miscalculating the Guidelines range and by failing to give an adequate explanation
for the sentence. We review for plain error, see United States v. Valencia-
Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The record reflects
that the district court accurately calculated the Guidelines and sufficiently
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explained the sentence.
Erhabor further contends that his sentence is substantively unreasonable
given the applicable Guidelines range. The district court did not abuse its
discretion in imposing Erhabor’s sentence. See Gall v. United States, 552 U.S. 38,
51 (2007). The above-Guidelines sentence is substantively reasonable in light of
the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances,
including the duration of the scheme and the various fraudulent activities
undertaken by Erhabor to perpetuate the fraud. See id.Erhabor also contends that trial counsel was ineffective for not adequately
objecting to the loss amount and restitution order. We decline to address this
contention on direct appeal. See United States v. Benford, 574 F.3d 1228, 1231
(9th Cir. 2009).
AFFIRMED.
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