                           NOT FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS                             FILED
                          FOR THE NINTH CIRCUIT                                JUN 15 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 13-10158

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00260-DGC-2

 v.
                                                 MEMORANDUM*
RICHARD LEWIS ROSS, AKA
Richard Ross,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                       Argued and Submitted May 12, 2015
                            San Francisco, California

Before:       KOZINSKI, PAEZ and CLIFTON, Circuit Judges.

      1. Ross argues that restitution was inappropriate because this case involved

too many victims and required the “determin[ation] [of] complex issues of fact.”

18 U.S.C. § 3663A(c)(3). In his plea deal, Ross “specifically agree[d] to make

restitution to the victims in an amount to be determined at sentencing,” and waived


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                  page 2
any right to appeal his sentence. While Ross may appeal the amount of restitution

awarded, see United States v. Tsosie, 639 F.3d 1213, 1218 (9th Cir. 2011), he has

knowingly waived his right to appeal the district court’s decision to award

restitution in the first place. Even if Ross did not waive his right to appeal the

district court’s decision to award restitution, the district court didn’t abuse its

discretion when it decided that 18 U.S.C. § 3663A(c)(3) did not preclude the

restitution award.


       2. Ross claims there is a variety of inconsistencies in the spreadsheet the

district court relied on to calculate restitution. Because he failed to flag these

discrepancies below, we review for plain error. Even assuming that the

spreadsheet contains every transcription and computation error he alleges, Ross

fails to establish that these errors affect his substantial rights.


       3. The district court’s methodology for computing restitution dramatically

understates victims’ losses. It doesn’t include interest, nor does it permit victims to

collect on CORF investments beyond the initial fee, even though such investments

were likely induced by CLS’s fraud.

       Ross fails to show how the district court’s methodology is anything but

generous to him. That some victims may not have responded to the government’s
                                                                                page 3
questionnaire makes no difference, as additional responses could have only

resulted in a higher restitution amount. And, because Ross was a principal of

CLS’s fraudulent scheme, the district court reasonably concluded that Ross

proximately caused every victims’ CLS-related losses.

      Any contributory negligence on the part of the victims is immaterial.

Because CLS sold a business plan nearly doomed to failure, it’s unlikely that any

individual investor’s acumen could have saved the business. Ross’s concerns that

victims may have understated their revenue from the CORFs and overstated their

additional investment in the CORFs are similarly inconsequential. Because few, if

any, victims realized a profit, the exact amounts of additional investment and

revenue are insignificant. The district court therefore did not abuse its discretion.


      4. The district court’s restitution schedule isn’t an abuse of discretion. The

pre-sentencing report reveals Ross had enough to make the $25-per-quarter

payments while he was in prison. Ross can petition to adjust the schedule if his

circumstances materially change.


      AFFIRMED.
