                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       JUL 20 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No.    15-50185

                   Plaintiff-Appellee,           D.C. No.
                                                 2:10-cr-00539-SJO-1
    v.

 VICTOR IGBOANUGO,                               MEMORANDUM*

                   Defendant-Appellant.

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

                         Argued and Submitted July 6, 2016
                               Pasadena, California

Before: FERNANDEZ, CLIFTON, and FRIEDLAND, Circuit Judges.

         Defendant-Appellant Victor Igboanugo was indicted on charges of mail and

wire fraud involving a “secret shopper” scheme and a separate “lottery scheme.”

He pled guilty to three counts involving only the “secret shopper” scheme; the

other counts were dismissed. At sentencing, the district court rejected all of

Igboanugo’s objections to the Sentencing Guidelines calculations. He now
         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
appeals (1) the loss calculation;1 (2) the Government’s withholding of a motion for

an additional 1-level offense level reduction for acceptance of responsibility

pursuant to U.S.S.G. § 3E1.1(b); and (3) the application of the vulnerable victim

enhancement.

      On the present record, the district court clearly erred in adopting the

Presentence Report’s (“PSR”) loss calculation. As the Government concedes, the

loss calculation includes losses attributable to the lottery scheme as well the secret

shopper scheme—despite the fact that Igboanugo never admitted to taking part in

the lottery scheme, the charges for which were dropped. Although a district court

may consider uncharged conduct as “relevant conduct” for purposes of loss

calculation, see United States v. May, 706 F.3d 1209, 1212-13 (9th Cir. 2013)

(citing U.S.S.G. § 1B1.3), there is no indication in the record that the district court

found that Igboanugo had participated in the lottery scheme. Indeed, when

defense counsel objected at the sentencing hearing to the PSR’s inclusion of the

lottery scheme as part of Igboanugo’s conduct, the district court agreed that


1
  Igboanugo also argues that the district court erred in determining the number of
victims involved. Because he makes the same arguments with respect to the loss
calculation as he does for the victim count, our discussion of the former issue
applies equally to the latter.

                                           2
Igboanugo was only admitting to the secret shopper scheme. We thus remand for

the district court to determine whether Igboanugo’s “relevant conduct” may

properly include the lottery scheme, and to calculate losses accordingly.2

      The district court also erred in allowing the Government to withhold a

U.S.S.G. § 3E1.1(b)3 reduction in response to Igboanugo’s refusal to agree to

sentencing factors. Effective November 1, 2013, § 3E1.1 was amended to clarify

that “[t]he government should not withhold [a motion for reduction for acceptance

of responsibility] based on interests not identified in § 3E1.1, such as whether the

defendant agrees to waive his or her right to appeal.” U.S.S.G. § 3E1.1 cmt. n. 6.

In explaining the rationale behind this amendment, the Sentencing Commission

noted its agreement with court of appeals decisions that had restricted denial of the

reduction to situations in which a defendant’s refusal to accept responsibility had


2
  We reject Igboanugo’s further argument that the losses were inaccurate because
they were not individually verified. Igboanugo cites no authority requiring that
each victim be contacted to verify the reported loss, and the Guidelines themselves
only require a “reasonable estimate of the loss . . . based on available information.”
U.S.S.G. § 2B1.1 application n.3(C). We leave it to the district court on remand
to address Igboanugo’s additional contention that the loss calculation includes
losses incurred prior to his participation in the scheme, to the extent the district
court finds that argument to have been adequately preserved.
3
 The parties agree that the district court correctly granted a 2-level reduction
under Subsection 3E1.1(a) in light of Igboanugo’s guilty plea.

                                          3
caused the government to prepare for trial, rather than to prepare for an appeal or

for contested sentencing proceedings. See U.S.S.G. Supp. App. C, amend. 775

(effective Nov. 1, 2013) (“Amendment”) (citing United States v. Divens, 650 F.3d

343, 348 (4th Cir. 2011) (holding that § 3E1.1(b) was concerned only with the

“efficient allocation of trial resources, not appellate resources”) and United States

v. Lee, 653 F.3d 170, 173-74 (2d Cir. 2011) (holding that the government cannot

withhold a § 3E1.1(b) motion on grounds that it was required to prepare for a

contested sentencing hearing)).4

      Here, the Government explicitly stated at the sentencing hearing that it was

justified in refusing to move for a § 3E1.1(b) reduction due to Igboanugo’s refusal

to agree to sentencing factors, and the district court apparently agreed. This was

erroneous in light of the Guideline Amendment and its associated commentary.5

To the extent the Government has alternative rationales for withholding a motion



4
  Although the Sentencing Commission did not explicitly state that it was agreeing
with Lee, as it did with Divens, its emphasis that Lee merely applied Divens’s
reasoning, and the Commission’s inclusion of Lee in the list of cases on the side of
the circuit split with which it ultimately agreed, reasonably leads to the conclusion
that the Commission endorsed Lee as well as Divens. See Amendment.
5
  Contrary to the Government’s contention, this error was not harmless. There is
no indication that the same sentence would have been given had the § 3E1.1(b)
reduction been granted.

                                          4
for this reduction, it may raise those arguments before the district court on remand.

      Finally, the district court did not err in applying the vulnerable victim

enhancement to Igboanugo’s sentence. This court has held that victims of a

“reloading” scheme—that is, victims who are sought out after having already

fallen for a fraudulent scheme—“are vulnerable for purposes of enhancing a

convicted person’s sentence.” United States v. Ciccone, 219 F.3d 1078, 1086 (9th

Cir. 2000) (citing United States v. Randall, 162 F.3d 557, 560 (9th Cir. 1998)). It

is undisputed that Igboanugo admitted to “re-solicit[ing]” certain victims to send

additional money after those victims had already fallen for the scheme.

Igboanugo’s contention that the vulnerable victim enhancement nevertheless

should not apply because he did not intentionally reload any victims fails. As the

Guidelines plainly state, the enhancement applies where the defendant “knew or

should have known that a victim of the offense was a vulnerable victim.”

U.S.S.G. § 3A1.1(b)(1); see also Randall, 162 F.3d at 560 n.2 (“[T]he Ninth

Circuit does not read § 3A1.1(b) to require the defendant to ‘target’ an unusually

vulnerable victim . . . . All that is required is that the defendant ‘knew or should

have known’ that the victim was unusually vulnerable.” (quoting United States v.

O’Brien, 50 F.3d 751, 756 (9th Cir. 1995)). Igboanugo’s admission that he

                                           5
“would re-solicit” in order to “induce [the victim] to send additional money,”

reasonably indicates that he at least “knew or should have known” that these

victims were unusually vulnerable.

      The sentence is VACATED and the case REMANDED for resentencing in

accordance with this memorandum.6




6
  Because the Government has cured the error complained of in Igboanugo’s July
1, 2016 motion to strike, that motion is denied as moot.

                                         6
