United States of America v. Victor Igboanugo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VICTOR IGBOANUGO,
Defendant-Appellant.
No. 16-50367
D.C. No.
2:10-cr-00539-SJO-1
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted October 3, 2017
Pasadena, California
Before: MOTZ,** M. SMITH and NGUYEN, Circuit Judges.
Victor Igboanugo appeals, for the second time, his sentence for wire fraud in
violation of 18 U.S.C. § 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Diana J. Motz, Circuit Judge for the U.S. Court of
Appeals for the Fourth Circuit, sitting by designation.
FILED
OCT 12 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. The district court correctly applied the preponderance of the evidence
standard when finding the lottery scheme to be relevant conduct under U.S.S.G. §
1B1.3(a)(2). Igboanugo pled guilty to perpetrating the secret shopper scheme, and
losses from that scheme alone led to a 12-level enhancement. Consideration of the
lottery scheme losses increased Igboanugo’s offense level by only two additional
levels, which was not an extremely disproportionate impact that would have
required use of a heightened standard of proof. See United States v. Armstead, 552
F.3d 769, 777-78 (9th Cir. 2008). Igboanugo argues that the district court should
have used the clear and convincing evidence standard for its findings related to
both schemes. But the preponderance of the evidence standard is appropriate for
loss findings stemming from the offense of conviction. See United States v.
Hymas, 780 F.3d 1285, 1290 (9th Cir. 2015). Moreover, Igboanugo lost his
arguments related to the loss calculations from the secret shopper scheme in his
first appeal, and did not present new arguments on this issue following remand to
the district court. See United States v. Igboanugo, 655 Fed. App’x 578, 579 (9th
Cir. 2016).
2. Reviewing for clear error, see United States v. Daychild, 357 F.3d 1082,
1103 (9th Cir. 2004), we conclude that the district court’s relevant conduct finding
was supported by a preponderance of the evidence. Igboanugo admitted to
perpetrating a secret shopper scheme with other co-schemers between January

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2007 and November 2009. His co-schemers admitted to running a very similar
lottery scheme, targeting many of the same victims, during the same time period
and out of a shared office in the home where Igboanugo lived. Igboanugo was in
close contact with both co-schemers, and investigators found evidence connected
to both the lottery and secret shopper schemes in the home office. In light of this
evidence, the district court did not clearly err in finding that Igboanugo was also
involved in the lottery scheme, and that the lottery and secret shopper schemes
were either a common “plan” or “part of a single episode, spree, or ongoing series
of offenses.” U.S.S.G. § 1B1.3, cmts. 5(B)(i)-(ii).
3. The district court properly included the lottery scheme losses in its
restitution order. See 18 U.S.C. § 3663A(a)(2). The lottery scheme was related
conduct to the secret shopper scheme because the two “were accomplished by [the
same] means, had [the same] victims, and took place primarily in [the same]”
location. In re Her Majesty the Queen in Right of Canada, 785 F.3d 1273, 1277
(9th Cir. 2015).
4. We grant Igboanugo’s unopposed motion for judicial notice of related
court records, and deny his second motion for judicial notice of related court
records.
AFFIRMED.

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