                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 06 2011

                                                                         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. 10-50287

              Plaintiff - Appellee,              D.C. No. 2:08-cr-01412-PSG-2

  v.
                                                 MEMORANDUM *
ATA DIGHLAWI,

              Defendant - Appellant.



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

                      Argued and Submitted August 31, 2011
                              Pasadena, California

Before: SCHROEDER and GOULD, Circuit Judges, and MCCUSKEY, Chief
District Judge.**

       Appellant Ata Dighlawi (“Dighlawi”) appeals the district court’s order of

restitution requiring him to pay restitution totaling $438,326.39 to the victims of

his crime. Appellant also filed a Request for Judicial Notice for this court to take


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
       **
             The Honorable Michael Patrick McCuskey, Chief District Judge for
the U.S. District Court for Central Illinois, Urbana, sitting by designation.
judicial notice of matters not otherwise included in the record on appeal—

specifically the joint motion for amended judgment and the third amended

judgment filed in the district court in United States v. Mohamad Esmail, CR 08-

1412-PSG (C.D. Cal.)—which is granted. We have jurisdiction over Dighlawi’s

appeal under 28 U.S.C. § 1291, and we affirm the district court’s restitution order.

      Dighlawi first contends that the district court abused its discretion by

holding him fully liable for the victims’ losses instead of apportioning the

restitution amount between the co-defendants based on varying levels of

culpability. If a restitution order is within the bounds of the statutory framework, it

is reviewed for an abuse of discretion. United States v. Fu Sheng Kuo, 620 F.3d

1158, 1162 (9th Cir. 2010). The Mandatory Victim Restitution Act (“MVRA”)

explicitly provides: “[i]f the court finds that more than 1 defendant contributed to

the loss of a victim, the court may make each defendant liable for payment of the

full amount of restitution or may apportion liability among the defendants to reflect

the level of contribution to the victim’s loss and economic circumstances of each

defendant.” 18 U.S.C. § 3664(h). If the trial court was clearly mistaken in its

ability to apportion restitution, and in fact believed that the only option was to

impose liability for the full amount, a finding of an abuse of discretion would be

appropriate. See United States v. Walton, 217 F.3d 433, 451 (7th Cir. 2000).

However, if the record reflects that the court knew it had the option to apportion
restitution but simply decided not to exercise that discretion, there is no abuse of

discretion. United States v. Booth, 309 F.3d 566, 576 (9th Cir. 2002). The record

reflects that the district court was aware that it had the option to apportion

restitution.1 Therefore, the district court’s order requiring Dighlawi to pay full

restitution for losses suffered by the victims of the conspiracy was not an abuse of

its discretion under the MVRA.

      Dighlawi next contends that his due process rights were violated because of

inaccurate information the district court relied upon at his sentencing hearing. This

argument is without merit as the district court did not rely on inaccurate

information. Rather, the court was aware of the fugitive status of the most culpable

defendant and of its ability to apportion restitution, and it exercised its discretion

by ordering Dighlawi to pay full restitution.

      Dighlawi further contends that the MVRA is unconstitutional as applied to

him, on the theory that the restitution order was grossly disproportionate to the

crime committed in violation of the Eighth Amendment. For the imposition of a

criminal restitution order under the MVRA, the applicable test for considering



      1
        The trial court made no statements indicating any confusion relating to its
ability to apportion restitution as an alternative to making each co-defendant fully
liable for payment of the full amount of restitution. Further, Dighlawi advanced
arguments for apportionment at length in his sentencing papers, and the trial court
acknowledged reading these papers on the record, indicating that it was aware of
the argument to apportion liability and rejected those arguments.
whether the order violates the Eighth Amendment’s prohibition on excessive fines

or cruel and unusual punishment is whether the restitution order is “grossly

disproportional” to the crime committed. United States v. Dubose, 146 F.3d 1141,

1145 (9th Cir. 1998). In this case, because the restitution amount was directly

based upon the losses the victims suffered as a result of the criminal conspiracy

that would not have been successfully accomplished without Dighlawi’s

participation, the restitution order was not grossly disproportionate to Dighlawi’s

criminal actions. See id. (explaining that “proportionality is inherent in a MVRA

restitution order”).

      Finally, Dighlawi contends that the district court abused its discretion by

ordering him to pay nominal restitution payments of no less than $50 per month.

The district court’s restitution order in this case was in strict compliance with the

MVRA which allows the court to order the defendant to pay nominal periodic

payments where the defendant lacks an ability to pay the full amount of the

restitution order in the foreseeable future under any reasonable payment schedule.

See 18 U.S.C. § 3664(f)(3)(B). Here, a $50 monthly payment is nominal,

considering the restitution amount of $438,326.39. Also, the requirement during

supervised release to pay over “windfall” amounts such as lottery winnings to the

outstanding restitution order is within the discretionary power of the district court.

See United States v. Betts, 511 F.3d 872, 877 (9th Cir. 2007). Furthermore, any
concerns about a need to choose between supporting his family and violating the

restitution order are without merit, as under the MVRA, if Dighlawi’s financial

circumstances materially change, he must notify the court which has the ability to

modify the payment schedule. See 18 U.S.C. § 3664(k).

      AFFIRMED.
