                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      OCT 12 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50367

                 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 October 3, 2017
                               Pasadena, California

Before: MOTZ,** M. SMITH and NGUYEN, Circuit Judges.

      Victor Igboanugo appeals, for the second time, his sentence for wire fraud in

violation of 18 U.S.C. § 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Diana J. Motz, Circuit Judge for the U.S. Court of
Appeals for the Fourth Circuit, sitting by designation.
      1. The district court correctly applied the preponderance of the evidence

standard when finding the lottery scheme to be relevant conduct under U.S.S.G. §

1B1.3(a)(2). Igboanugo pled guilty to perpetrating the secret shopper scheme, and

losses from that scheme alone led to a 12-level enhancement. Consideration of the

lottery scheme losses increased Igboanugo’s offense level by only two additional

levels, which was not an extremely disproportionate impact that would have

required use of a heightened standard of proof. See United States v. Armstead, 552

F.3d 769, 777-78 (9th Cir. 2008). Igboanugo argues that the district court should

have used the clear and convincing evidence standard for its findings related to

both schemes. But the preponderance of the evidence standard is appropriate for

loss findings stemming from the offense of conviction. See United States v.

Hymas, 780 F.3d 1285, 1290 (9th Cir. 2015). Moreover, Igboanugo lost his

arguments related to the loss calculations from the secret shopper scheme in his

first appeal, and did not present new arguments on this issue following remand to

the district court. See United States v. Igboanugo, 655 Fed. App’x 578, 579 (9th

Cir. 2016).

      2. Reviewing for clear error, see United States v. Daychild, 357 F.3d 1082,

1103 (9th Cir. 2004), we conclude that the district court’s relevant conduct finding

was supported by a preponderance of the evidence. Igboanugo admitted to

perpetrating a secret shopper scheme with other co-schemers between January


                                         2
2007 and November 2009. His co-schemers admitted to running a very similar

lottery scheme, targeting many of the same victims, during the same time period

and out of a shared office in the home where Igboanugo lived. Igboanugo was in

close contact with both co-schemers, and investigators found evidence connected

to both the lottery and secret shopper schemes in the home office. In light of this

evidence, the district court did not clearly err in finding that Igboanugo was also

involved in the lottery scheme, and that the lottery and secret shopper schemes

were either a common “plan” or “part of a single episode, spree, or ongoing series

of offenses.” U.S.S.G. § 1B1.3, cmts. 5(B)(i)-(ii).

      3. The district court properly included the lottery scheme losses in its

restitution order. See 18 U.S.C. § 3663A(a)(2). The lottery scheme was related

conduct to the secret shopper scheme because the two “were accomplished by [the

same] means, had [the same] victims, and took place primarily in [the same]”

location. In re Her Majesty the Queen in Right of Canada, 785 F.3d 1273, 1277

(9th Cir. 2015).

      4. We grant Igboanugo’s unopposed motion for judicial notice of related

court records, and deny his second motion for judicial notice of related court

records.

      AFFIRMED.




                                          3
