                                                                           FILED
                           NOT FOR PUBLICATION                                JUN 21 2012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. 09-50630

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00132-GW-3

  v.
                                                 MEMORANDUM *
FRANK H. HIGHTOWER,

              Defendant - Appellant.



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

                        Argued and Submitted June 6, 2012
                              Pasadena, California

Before: B. FLETCHER, WARDLAW, and BYBEE, Circuit Judges.

       Frank Hightower was convicted of conspiracy, mail fraud, and wire fraud in

connection with a “back door” advertising scheme, and was sentenced to 51

months’ imprisonment. At sentencing, the district court imposed a 16-level

upward adjustment because the total amount of loss attributed to the entire



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
company was over $1 million, and a 6-level upward adjustment because the total

number of victims was over 250. Hightower appeals, arguing that he should be

held liable only for losses and victims that he dealt with directly. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Hightower argues that the district court erred in attributing to him the losses

and victims of the entire conspiracy, rather than only those for which he was

personally responsible. Specifically, Hightower argues that the district court

overstated the scope of his agreement to work with RAB Publications, Inc.

(“RAB”).

      The United States Sentencing Guidelines (“U.S.S.G.”) provide that, in the

case of jointly undertaken criminal activity, a defendant is accountable for “all

reasonably foreseeable acts and omissions of others in furtherance of the jointly

undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). The relevant

determination is “the scope of the criminal activity that the particular defendant

agreed to jointly undertake (i.e., the scope of the specific conduct and objectives

embraced by the defendant’s agreement).” Id. cmt. n.2. To make this finding, we

may look to “any explicit agreement or implicit agreement fairly inferred from the

conduct of the defendant and others.” Id.




                                            2
      Although Hightower was a low-level participant, he was part of an

interdependent scheme, that relied on cooperation between salespeople and other

employees of RAB. See United States v. Blitz, 151 F.3d 1002, 1012–13 (9th Cir.

1998). Hightower was paid a commission based on successful sales, and thus did

not share in the profits derived from other salesmen, but his success at the

company was dependent on the performance of others. Additionally, Hightower

worked and participated in the scheme for approximately three years, knowing it

was fraudulent from the beginning. Because Hightower was more than just an

independent employee working on his own, and instead was part of an intertwined

scheme, heavily dependent on other RAB personnel, the district court did not err in

finding him accountable for the entire amount of loss and number of victims.

      Hightower next contends that the district court erred in not subtracting the

sales he claims were legitimate from the total loss and number of victims. “[I]n

calculating intended loss, the district court should give credit for any legitimate

services rendered to the victims.” Blitz, 151 F.3d at 1012. There is no evidence,

however, that the district court considered the legitimate sales in the calculation of

loss. Additionally, Hightower failed to show that these purportedly legitimate

sales would have any effect on his Guidelines range, and thus his sentence. The

district court found that the loss was over $1 million, and that there were more than


                                           3
250 victims. Lowering the loss by two victims, and two legitimate sales, would

not change the applicability of the enhancements. Therefore, the district court did

not plainly err. See United States v. Santiago, 466 F.3d 801, 803 (9th Cir. 2006)

(stating that when a party does not make a specific objection below, we review for

plain error).

       Hightower also claims that the restitution order must be vacated and

recalculated because the district court’s Guidelines loss calculation was incorrect.

The district court found that “[t]he defendant will be responsible for paying

restitution. I will list the restitution amount as the restitution of the overall, but that

is obviously a figure that has to be paid by all of the defendants involved in this

case . . . .” The district court derived the figure of over $2 million from

calculations and victims specifically identified in the pre-sentence report. Because

we find that the district court did not err in the application of the sentencing

guidelines and the calculation of loss, we reject Hightower’s request for the

restitution order to be vacated and recalculated.

       AFFIRMED.




                                             4
