                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 24 2013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. 11-50374

               Plaintiff - Appellee,             D.C. No. 2:10-cr-00372-JHN

  v.
                                                 MEMORANDUM *
GREG AYO DAFINONE,

               Defendant - Appellant.



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

                              Submitted June 18, 2013 **

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       Greg Ayo Dafinone appeals from the district court’s judgment and

challenges the 77-month sentence imposed following his guilty-plea conviction for

bank fraud, in violation of 18 U.S.C. § 1344. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

          *
             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).
          The government contends that the appeal is barred by an appeal waiver. We

decline to dismiss on the basis of the appeal waiver. See United States v. Jacobo

Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc).

          Dafinone contends that the district court erred in imposing a 14-level

sentencing enhancement under U.S.S.G. § 2B1.1(b)(1)(H) because its loss

calculation was not supported by the evidence. The parties dispute whether the

government was required to prove the facts supporting the enhancement by a

preponderance of the evidence or by a clear and convincing evidence standard. We

need not resolve this issue, because there was no factual dispute as to the actual

losses suffered by the victim banks. Moreover, the district court did not err in

finding that Dafinone was part of a common fraudulent scheme, and attributing all

losses occasioned by the scheme to him. See U.S.S.G. § 1B1.3(a)(1)(B) (specific

offense characteristic determined on basis of all reasonably foreseeable acts

undertaken by participants in a joint criminal activity in furtherance of that

activity); United States v. Showalter, 569 F.3d 1150, 1159 (9th Cir. 2009) (district

court’s factual findings supporting a sentence enhancement are reviewed for clear

error).

          AFFIRMED.




                                             2                                     11-50374
