                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 23 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-50331

              Plaintiff - Appellee,              D.C. No.2:09-cr-1330-GHK-2

  v.
                                                 MEMORANDUM*
FERNANDO JACOBS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    George H. King, District Judge, Presiding

                     Argued and Submitted November 9, 2012
                              Pasadena, California

Before: BRIGHT**, GRABER, and IKUTA, Circuit Judges.

       Fernando Jacobs was a Supervisory Immigration Services Officer

(“supervisory officer”) with the United States Citizenship and Immigration

Services (“CIS”). Jacobs was convicted of four counts of honest services wire



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Myron H. Bright, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
fraud under 18 U.S.C. §§ 1343, 1346, based on his involvement in a scheme taking

bribes in exchange for immigration information and assistance. Jacobs raises two

issues on appeal, the insufficiency of the evidence on the required element of

materiality to support the wire fraud charges and the application of a sentencing

enhancement. We affirm.

      Viewing the evidence in the light most favorable to the prosecution, we

conclude that a rational trier of fact could have found the element of materiality

proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319

(1979). There was sufficient evidence that Jacobs’s scheme to defraud CIS of his

honest services had a natural tendency to influence CIS or was capable of

influencing CIS. See United States v. Milovanovic, 678 F.3d 713, 727 (9th Cir.

2012) (en banc); see also United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir.

2008) (citing Kungys v. United States, 485 U.S. 759, 770 (1988)). Jacobs admits

that, in one instance, his scheme did in fact influence CIS because Jacobs

compelled a subordinate officer to confer an immigration benefit in the form of

travel stamps on passports. We therefore affirm Jacobs’s convictions for honest

services wire fraud.

      The district court did not err by applying a four-level sentencing

enhancement under Sentencing Guidelines § 2C1.1(b)(3). The Guidelines


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authorize a four-level increase in an offender’s base offense level for bribery

offenses involving any public official in a sensitive position. Sentencing

Guidelines Manual § 2C1.1(b)(3). The district court properly determined that

Jacobs held a sensitive position. Supervisory officers like Jacobs occasionally

adjudicate immigration benefits, such as petitions for residency and citizenship, but

the primary role of a supervisory officer is to supervise Immigration Services

Officers, ensuring that they properly apply immigration law in the adjudication of

benefits. As a supervisory officer, Jacobs had the authority to review important

decisions of officers, he had access to sensitive information, and he was able to

control the actions of subordinates. We therefore affirm Jacobs’s sentence,

including the four-level enhancement for holding a sensitive position.

      AFFIRMED.




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