United States of America v. NOSA DANIEL AGHEDO, AKA Richard Obasuyi

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concluded this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NOSA DANIEL AGHEDO, AKA Richard
Obasuyi,
Defendant - Appellant.
Nos. 10-50235, 10-50308
D.C. No. 2:08-cr-01385-GW-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted May 10, 2012**
Pasadena, California
Before: D.W. NELSON, FISHER, and CHRISTEN, Circuit Judges.
Nosa Daniel Aghedo appeals his 57-month sentence and order of restitution
in the amount of $1,231,250.91 following his conviction for conspiracy to commit
FILED
MAY 25 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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bank fraud in violation of 18 U.S.C. § 1349 and possession of five or more false
identification documents in violation of 18 U.S.C. § 1028(a)(3). We have
jurisdiction under 28 U.S.C. § 1291. We affirm the 57-month sentence that
Aghedo received after pleading guilty to these offenses, but vacate and remand the
order of restitution.
As part of his plea agreement, Aghedo waived his right to appeal the
sentence imposed as long as the term of imprisonment was not greater than 120
months. Aghedo’s appeal of the 57-month sentence is barred by this valid waiver.
See United States v. Harris, 628 F.3d 1203, 1205 (9th Cir. 2011).
The parties stipulated that Aghedo’s waiver of his right to appeal the
restitution order was invalid because the plea agreement did not specify, or cap,
the amount of restitution. See United States v. Gordon, 393 F.3d 1044, 1050 (9th
Cir. 2004). At his sentencing hearing, Aghedo challenged the government’s
evidence regarding the loss calculations supporting the restitution amount. The
evidence of the loss caused by the conspiracy consisted of unsupported statements
in the probation department’s Pre-Sentence Investigation Report (“PSR”) listing
the amount of “actual loss” suffered by several financial institutions. The PSR
referred to, but did not include as an attachment, a chart prepared by an
investigator that may have provided additional support for the loss calculation.

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When a defendant objects to a PSR, the district court “may not simply rely
on the factual statements in the PSR.” United States v. Ameline, 409 F.3d 1073,
1086 (9th Cir. 2005) (en banc). Supplemental affidavits provided by the
government only justified some amount greater than $264,700 and did not
constitute a showing “that it is more likely than not that the defendant’s offense
proximately caused the losses for which restitution was awarded and that it did so
in the amounts awarded.” United States v. Tsosie, 639 F.3d 1213, 1222 (9th Cir.
2011). We therefore vacate the order of restitution and remand to allow the district
court to reassess the amount of restitution.
AFFIRMED in part, VACATED in part, and REMANDED.

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