United States of America v. SAMUEL L. RADOBENKO, AKA Samuel Lawrence Radobenko

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable James G. Carr, Senior United States District Judge for**
the Northern District of Ohio, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL L. RADOBENKO, AKA
Samuel Lawrence Radobenko,
Defendant - Appellant.
No. 12-50057
D.C. No. 8:07-cr-00273-DOC-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted February 12, 2013
Pasadena, California
Before: BERZON and WATFORD, Circuit Judges, and CARR, Senior District
Judge.**
The district court did not err when it found the amount of intended loss
under a preponderance of the evidence standard because the loss amount was
FILED
FEB 21 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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“based on the extent of the fraud conspiracy” for which Radobenko was convicted.
United States v. Berger, 587 F.3d 1038, 1048 (9th Cir. 2009). Nor did the court
clearly err in finding an intended loss of $1.5 million. As Radobenko concedes,
whether Radobenko was actually capable of causing the amount of loss he intended
is irrelevant. United States v. Robinson, 94 F.3d 1325, 1328 (9th Cir. 1999);
U.S.S.G. § 2B1.1 app. n. 3(A)(ii) (2011).
The district court did not commit plain error by imposing a three-level
enhancement for Radobenko’s role as a manager or supervisor. The wiretap
transcripts show that Radobenko referred to himself as the “top dog” in the fake
investment operation and that he played the role of supervisor of at least one of his
co-conspirators. Other evidence in the record shows that Radobenko played a key
role in negotiating and drafting the $500 million fraudulent investment contract,
that he emailed this contract to the undercover agents for their signatures before he
decided to terminate the scheme, and that he founded and owned Southwest Trust
& Trade Company, the entity that was integral to the fraudulent scheme. The
district court could infer from all this evidence, taken together, that Radobenko had
a managerial or supervisorial role in the criminal scheme.
AFFIRMED.

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