                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 02 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50515

               Plaintiff - Appellee,             D.C. No. 8:11-cr-00027-SVW

  v.
                                                 MEMORANDUM *
EKUNDAYO AYO ERHABOR,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                           Submitted December 19, 2012 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       Ekundayo Ayo Erhabor appeals from the district court’s judgment and

challenges the restitution order and 36-month sentence imposed following his

guilty-plea conviction for wire fraud, in violation of 18 U.S.C. § 1343. We have




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Erhabor contends that there was insufficient evidence to support the district

court’s loss calculation of $260,641.37 under U.S.S.G. § 2B1.1 and restitution

order in the amount of $184,334.08. The record reflects that the district court did

not clearly err in calculating the amount of loss in light of Erhabor’s factual

admissions in his plea agreement and the uncontradicted evidence in the

presentence report. See United States v. Showalter, 569 F.3d 1150, 1161 (9th Cir.

2009) (stipulation in plea agreement provides a sufficient basis for an

enhancement); United States v. Charlesworth, 217 F.3d 1155, 1160-61 (9th Cir.

2000) (district court can rely on an unchallenged portion of a presentence report).

Similarly, because Erharbor did not contest the assertion in the presentence report

that restitution should be awarded in the amount of $184,334.08, the district court

did not abuse its discretion in imposing the restitution award. See United States

Yeung, 672 F.3d 594, 600 (9th Cir. 2012); Charlesworth, 217 F.3d at 1160-61.

      Erhabor also contends that the district court procedurally erred by

miscalculating the Guidelines range and by failing to give an adequate explanation

for the sentence. We review for plain error, see United States v. Valencia-

Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The record reflects

that the district court accurately calculated the Guidelines and sufficiently


                                           2                                      11-50515
explained the sentence.

      Erhabor further contends that his sentence is substantively unreasonable

given the applicable Guidelines range. The district court did not abuse its

discretion in imposing Erhabor’s sentence. See Gall v. United States, 552 U.S. 38,

51 (2007). The above-Guidelines sentence is substantively reasonable in light of

the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances,

including the duration of the scheme and the various fraudulent activities

undertaken by Erhabor to perpetuate the fraud. See id.

      Erhabor also contends that trial counsel was ineffective for not adequately

objecting to the loss amount and restitution order. We decline to address this

contention on direct appeal. See United States v. Benford, 574 F.3d 1228, 1231

(9th Cir. 2009).

      AFFIRMED.




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