                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 21 2013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. 12-50057

              Plaintiff - Appellee,              D.C. No. 8:07-cr-00273-DOC-1

  v.
                                                 MEMORANDUM *
SAMUEL L. RADOBENKO, AKA
Samuel Lawrence Radobenko,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                      Argued and Submitted February 12, 2013
                               Pasadena, California

Before: BERZON and WATFORD, Circuit Judges, and CARR, Senior District
Judge.**

       The district court did not err when it found the amount of intended loss

under a preponderance of the evidence standard because the loss amount was


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable James G. Carr, Senior United States District Judge for
the Northern District of Ohio, sitting by designation.
“based on the extent of the fraud conspiracy” for which Radobenko was convicted.

United States v. Berger, 587 F.3d 1038, 1048 (9th Cir. 2009). Nor did the court

clearly err in finding an intended loss of $1.5 million. As Radobenko concedes,

whether Radobenko was actually capable of causing the amount of loss he intended

is irrelevant. United States v. Robinson, 94 F.3d 1325, 1328 (9th Cir. 1999);

U.S.S.G. § 2B1.1 app. n. 3(A)(ii) (2011).

      The district court did not commit plain error by imposing a three-level

enhancement for Radobenko’s role as a manager or supervisor. The wiretap

transcripts show that Radobenko referred to himself as the “top dog” in the fake

investment operation and that he played the role of supervisor of at least one of his

co-conspirators. Other evidence in the record shows that Radobenko played a key

role in negotiating and drafting the $500 million fraudulent investment contract,

that he emailed this contract to the undercover agents for their signatures before he

decided to terminate the scheme, and that he founded and owned Southwest Trust

& Trade Company, the entity that was integral to the fraudulent scheme. The

district court could infer from all this evidence, taken together, that Radobenko had

a managerial or supervisorial role in the criminal scheme.

AFFIRMED.




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