                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 06 2012

                                                                        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. 10-50588

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01045-DSF-1

  v.
                                                 MEMORANDUM *
EMMANUEL IFECHUKWU
ONWUZULIKE, AKA Emmanuel I.
Onwuzulike,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted June 4, 2012
                              Pasadena, California

Before: TROTT and THOMAS, Circuit Judges, and SEEBORG, District Judge.**

       Emmanuel Ifechukwu Onwuzulike appeals the sentence and restitution order

imposed by the district court following his guilty plea to one count of mail fraud,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Richard Seeborg, District Judge for the U.S. District
Court for Northern California, sitting by designation.
under 18 U.S.C. § 1341, arising from his involvement in a fraudulent lottery

scheme. We affirm. Because the parties are familiar with the factual and

procedural history of this case, we need not recount it here.

                                           I

      The district court did not err by enhancing Onwuzulike’s sentence under the

Sentencing Guidelines for loss amount, number of victims, or obstruction of

justice. We review the district court’s interpretation of the Sentencing Guidelines

de novo and its findings of fact for clear error. United States v. Laurienti, 611 F.3d

530, 551-52 (9th Cir. 2010).

                                          A

      The district court did not clearly err by determining that the loss amount

exceeded $2.5 million. The sentencing guidelines allow the district court to “make

a reasonable estimate of the loss” in a fraud case. U.S.S.G. § 2B1.1 cmt. n.3(C).

The court “‘need not make its loss calculation with absolute precision; rather, it

need only make a reasonable estimate of the loss based on the available

information.’” Laurienti, 611 F.3d at 558 (quoting United States v. Zolp, 479 F.3d

715, 719 (9th Cir. 2007)). The district court’s conclusion was supported by a

declaration from an investigative accountant, who determined that Onwuzulike’s

domestic victims transferred a total of $2,919,258.79 into Onwuzulike’s bank


                                          -2-
accounts. The government’s accountant analyzed bank records of Onwuzulike’s

accounts, and she did not use an improper, statistically unreliable sample to

determine the total loss amount. United States v. Culps, 300 F.3d 1069, 1078 (9th

Cir. 2002). The district court reasonably determined that the victims’ transfers to

Onwuzulike’s bank accounts were fraudulently induced because there was no other

plausible explanation for the transfers. United States v. Amlani, 111 F.3d 705, 719

(9th Cir. 1997).

                                          B

      The district court did not clearly err by determining that there were fifty or

more victims of Onwuzulike’s fraudulent scheme. The government submitted a

victim list from the investigative accountant that included more than fifty victims

and listed their individual losses. Given this submission and the totality of the

evidence, the district court reasonably concluded that the people on the list who

sent money to Onwuzulike were actually victims.

                                          C

      The district court did not clearly err by determining that the obstruction of

justice enhancement was appropriate. Under the Sentencing Guidelines, a district

court may impose a two-level enhancement on a defendant who “willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of


                                          -3-
justice during the course of the investigation, prosecution, or sentencing of the

instant offense of conviction.” U.S.S.G. § 3C1.1. Application Note 4(d) specifies

that “destroying or concealing . . . evidence that is material to an official

investigation” is an example of conduct covered under this enhancement. In this

case, the London Metropolitan Police Service arrested Onwuzulike and provided

him with written notice that it would be a violation of the law if he were to transfer

any funds out of his bank accounts. After Onwuzulike was released, he withdrew

approximately £110,000 from two bank accounts he controlled. The district court

reasonably concluded that he obstructed justice by making such large withdrawals

because, even if he had not received the notice, he knew that the money would be

subject to forfeiture to repay his victims.

                                              II

      The district court did not err by ordering Onwuzulike to pay $3,965,909.97

in restitution as required by the Mandatory Victim Restitution Act of 1996

(MVRA). 18 U.S.C. §§ 3663A, 3664. We review a district court’s factual findings

regarding restitution for clear error and the legality of the restitution order de novo.

United States v. Waknine, 543 F.3d 546, 555 (9th Cir. 2008).




                                              -4-
                                          A

      The district court did not clearly err by ordering Onwuzulike to pay

$2,919,258.78 in restitution to his domestic victims. The MVRA requires courts to

order restitution for crimes of violence and certain property offenses, including

crimes of fraud. 18 U.S.C. § 3663A(a); (c). The government’s accountant

analyzed Onwuzulike’s bank accounts and determined that Onwuzulike owed his

domestic victims $2,919,258.78 in restitution. The accountant included only

deposits originating from U.S. banks which were traceable to specific victims. The

government also introduced affidavits from several of Onwuzulike’s victims

describing their financial losses as a result of Onwuzulike’s fraudulent scheme.

Onwuzulike did not provide a legitimate explanation for why any of the

individuals that transferred him money did so other than in response to the

fraudulent scheme. Thus, the district court did not clearly err by determining that

these transfers were fraudulently induced and are subject to restitution.

                                          B

      The district court did not clearly err by ordering Onwuzulike to pay

$1,046,651.69 in restitution to his foreign victims. The government’s investigative

accountant prepared a list of foreign victims, which specified their individual

losses, and she also submitted a declaration explaining how she determined these


                                         -5-
losses. This evidence was similar to the evidence the government introduced to

support its restitution order for Onwuzulike’s domestic victims. And, as with his

domestic victims, Onwuzulike did not provide a legitimate explanation for why his

foreign victims would have transferred him this money. Thus, the district court

reasonably determined that these transfers were fraudulently induced.

       On appeal, Onwuzulike argues that the MVRA does not apply

extraterritorially. Although we normally review a district court’s interpretation of

a statute de novo, we review this claim for plain error because it was not

specifically raised in the district court. United States v. Benny, 786 F.2d 1410,

1417-18 (9th Cir. 1986). It is not “clear under current law” whether the MVRA

applies extraterritorially, thus the district court did not plainly err even if it

construed the MVRA in this way. United States v. Olano, 507 U.S. 725, 734

(1993).

                                            III

       Onwuzulike’s sentence was not procedurally flawed or substantively

unreasonable. The district court did not err procedurally. It correctly calculated

the Sentencing Guidelines range; treated the guidelines as advisory; considered and

explicitly referenced the 18 U.S.C. § 3553(a) sentencing factors on the record;

adequately explained the sentence; and did not presume that the Guidelines range


                                            -6-
was reasonable. United States v Blinkinsop, 606 F.3d 1110, 1114 (9th Cir. 2010)

(citing United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc)).

      The district court did not err substantively because Onwuzulike’s sentence

was sufficient, but not greater than necessary, to accomplish the sentencing goals

of § 3553(a). United States v. Crowe, 563 F.3d 969, 977 n. 16 (9th Cir. 2009).




      AFFIRMED.




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