United States of America v. Sylvester Ijewere

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Edward R. Korman, Senior District Judge for the**
United States District Court for the Eastern District of New York, sitting by
designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SYLVESTER IJEWERE,
Defendant - Appellant.
No. 10-50492
D.C. No. 2:09-cr-01173-DSF-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted February 13, 2012
Pasadena, California
Before: FARRIS and W. FLETCHER, Circuit Judges, and KORMAN, Senior
District Judge.**
FILED
FEB 27 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Sylvester Ijewere appeals the sentence imposed after he pled guilty to
Medicare fraud. He challenges the district court’s imposition of a (1) two-level
enhancement for abuse of a position of trust, (2) 12-level enhancement for causing
loss greater than $200,000, and (3) drug testing condition for his supervised
release. We affirm.
We review the district court’s interpretation of the Sentencing Guidelines de
novo, its factual findings for clear error, and its application of the Sentencing
Guidelines to the facts for abuse of discretion. United States v. Holt, 510 F.3d
1007, 1010 (9th Cir. 2007). We review the district court’s imposition of a
supervised release condition for abuse of discretion. United States v. Apodaca, 641
F.3d 1077, 1079 (9th Cir. 2011).
The district court did not err in finding that Ijewere abused a position of
trust. Ijewere’s role in the fraud had the “element of discretion” required for the
abuse of trust enhancement. United States v. Contreras, 593 F.3d 1135, 1136 (9th
Cir. 2010) (en banc) (adopting parts of panel opinion in United States v. Contreras,
581 F.3d 1163, 1166 (9th Cir. 2009)). Ijewere was responsible for evaluating the
patients to whom he provided equipment. See United States v. Miller, 607 F.3d
144, 149 (5th Cir. 2010).

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The district court also did not err in calculating the loss amount. The district
court made a “reasonable estimate” of the loss in light of the evidence. United
States v. Lawrence, 189 F.3d 838, 846 (9th Cir. 1999). Further, the district court
adequately addressed Ijewere’s objections to the loss calculation by “expressly
adopt[ing] the [government’s] position” on the loss amount. United States v. Doe,
488 F.3d 1154, 1158 (9th Cir. 2007).
Ijewere waived his right to appeal the drug testing requirement in his plea
bargain. Even if Ijewere had not waived that right, however, the district court did
not abuse its discretion. Drug testing is a mandatory condition of supervised
release. 18 U.S.C. § 3583(d).
AFFIRMED.

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