UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4289

BAHRAM JARRAHI, a/k/a Bob,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 97-4311
AHMAD AMINI KARLADANI, a/k/a
Alex,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
James A. Beaty, Jr., District Judge.
(CR-96-194)

Submitted: April 14, 1998

Decided: May 11, 1998

Before ERVIN, WILKINS, and NIEMEYER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Eric C. Rowe, Randall W. Reavis, PATTON & BOGGS, L.L.P.,
Greensboro, North Carolina; Benjamin D. Porter, MORROW, ALEX-
ANDER, TASH & LONG, Winston-Salem, North Carolina, for
Appellants. Walter C. Holton, Jr., United States Attorney, Douglas
Cannon, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellants and four codefendants were charged in a twenty-nine
count superseding indictment with conspiring from April 1996 to
October 1996 to commit odometer tampering and to transport false
certificates of title to vehicles in interstate commerce. Bahram Jarrahi
pled guilty to one count of odometer tampering in violation of 15
U.S.C. §§ 1984, 1990c (repealed 1994),1 18 U.S.C. § 2 (1994) (Count
2), one count of odometer tampering in violation of 49 U.S.C.
§§ 32703(2), 32709(b) (1994), 18 U.S.C. § 2 (Count 18), and one
count of interstate transportation of a false certificate of title, see 18
U.S.C. § 2314 (1994), 18 U.S.C. § 2 (Count 28). Ahmad Amini Kar-
ladani pled guilty to two counts of odometer tampering, see 49 U.S.C.
§§ 32703(2), 32709(b), 18 U.S.C. § 2 (Counts 9 and 10), and one
count of interstate transportation of false certificates of title, see 18
U.S.C. §§ 2314, 2 (Count 23). Jarrahi and Karladani were sentenced
to 26-month terms of imprisonment. They appeal their sentences,
each alleging that the district court failed to make a finding concern-
ing the scope of his agreement to undertake a joint criminal activity,
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1 This offense was committed in 1993.

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clearly erred in determining his relevant conduct, see USSG § 1B1.3,2
and thus imposed an excessive sentence. We affirm.

The factual basis stipulated for both pleas established (1) that both
Jarrahi and Karladani were wholesale automobile dealers who oper-
ated under a variety of business names; (2) that dealers who engage
in odometer tampering frequently pay other unscrupulous dealers to
buy high-mileage vehicles for them at automobile auctions so as to
lengthen the chain of title and obscure their responsibility for odome-
ter tampering; (3) that Jarrahi engaged in this practice and also
arranged for other dealers to obtain titles in other states ("washed"
titles) by presenting a title on which the odometer reading had been
lowered; (4) that most of the vehicles Jarrahi purchased were high-
mileage vehicles; (5) that Jarrahi had obtained two specific high-
mileage vehicles and sold them a short time later as"rollbacks" with
lowered mileage and washed titles; (6) that the majority of cars Kar-
ladani sold were rollbacks and that he had an understanding with vari-
ous co-defendants to purchase cars for them or have them purchase
cars for him and to have the car sold by a dealer other than the one
who purchased it to lengthen the chain of title and obscure responsi-
bility for the odometer tampering.

Odometer tampering is covered by USSG § 2N3.1. For an offense
involving more than one vehicle, a cross-reference to USSG § 2F1.1
(Fraud and Deceit) applies and the offense level is determined largely
by the amount of loss. In the presentence report, using information
gathered during the investigation, the probation officer stated that the
six defendants worked together in a loose-knit association with no
leader, in which the defendants ran their own businesses but cooper-
ated to purchase vehicles for each other.

Under USSG § 1B1.3(a)(1)(B), a defendant who engages in a
jointly undertaken criminal activity is responsible for all reasonably
foreseeable acts of others in furtherance of the conspiracy. If the
offense is one which requires grouping of multiple counts under
USSG § 3D1.2(d) (aggregate harm), as is the instant offense, the
defendant is responsible for all acts of others that were part of the
same common scheme or plan or same course of conduct as the
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2 U.S. Sentencing Guidelines Manual (1995).

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offense of conviction. See USSG § 1B1.3(a)(2). However, a defen-
dant is responsible only for conduct of others which is within the
scope of his agreement. See USSG § 1B1.3, comment. (n.2). Here, to
determine the amount of loss, the probation officer used information
supplied by the government concerning all cars for which there was
a record of purchase or sale by any one of the defendants, on the the-
ory that the criminal activities of all the defendants were reasonably
foreseeable to Jarrahi and Karladani.

The government had obtained complete records of purchases and
sales for 164 cars bought and sold by the defendants. Of this group,
159 cars (97%) were rollbacks.3 Reasoning that most of the cars
bought and sold by the defendants were rollbacks, the probation offi-
cer recommended that Jarrahi and Karladani were accountable for
odometer tampering on 384 cars over the two to three years of the
conspiracy.4 Estimating a loss of $6000 per vehicle, the probation
officer projected a total loss of $2,304,000. Jarrahi and Karladani
objected that the government had not proved a conspiracy and that
their relevant conduct should include only those vehicles for which
the government had conclusive proof of odometer tampering and with
which they had direct involvement. The amount of loss recommended
by the probation officer resulted in a sentence enhancement of twelve
levels. See USSG § 2F1.1(b)(1)(M) (loss over $1,500,000).

At the sentencing hearing, Jarrahi and Karladani argued that any
criminal activity on the part of their codefendants which they were
not directly involved in and did not profit from was not jointly
undertaken. Two investigative agents testified for the government
using three charts which showed 384 cars with which one or another
of the six defendants had been involved. The first showed the 164
cars known to be rollbacks. The second chart showed 109 cars pur-
chased by one of the defendants' companies, of which 88% were high
mileage cars. The third chart showed 111 cars sold by one of the
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3 According to the presentence report, "rollbacks were generally in the
range of 40,000 to 50,000 miles. Two [odometers] were rolled back as
little as 12,000 and 14,000 miles and a number were rolled back by
80,000 miles or more."
4 According to the presentence report, the defendants typically attended
two or three sales per week and traded one or two cars per sale.

                    4
defendants' companies, of which 96% had normal or low mileage.
Seven cars shown on the second and third charts were too old for the
odometer disclosure statutes to apply. The district court determined
that Jarrahi and Karladani were engaged in a joint undertaking with
the other defendants and that the conduct of all the defendants involv-
ing odometer tampering was reasonably foreseeable to them. The
court determined that Jarrahi and Karladani were responsible for
odometer tampering on 364 vehicles.5 The court estimated that each
consumer who learned that he had purchased a "true miles unknown"
vehicle would suffer a loss of approximately $4812.38. This calcula-
tion resulted in a loss of $1,751,706.30. Thus, by a slightly different
calculation, the district court arrived at the same 12-level enhance-
ment under USSG § 2F1.1 which the probation officer had recom-
mended.

Unless the facts are undisputed, the calculation of loss is a factual
question reviewed for clear error. See United States v. Chatterji, 46
F.3d 1336, 1340 (4th Cir. 1995). Jarrahi and Karladani contend on
appeal that the government failed to establish the scope of their agree-
ments and that the district court made no determination as to the
scope of their agreement to participate in odometer tampering and
simply assumed that they agreed to all the criminal activity engaged
in by all the defendants. However, the factual basis offered for both
defendants' guilty pleas established an implicit agreement among Jar-
rahi, Karladani, and their codefendants to purchase cars for one
another and otherwise assist one another in carrying on and conceal-
ing odometer tampering. This implicit agreement was the basis for the
probation officer's sentence calculation. The district court found that
the evidence presented by the government at sentencing showed a
joint undertaking by all the defendants and that the conduct of all the
defendants was reasonably foreseeable to each of them and properly
considered as relevant conduct as to Jarrahi and Karladani. The
court's finding was thus adequate to resolve the issue. Moreover, the
finding was not clearly erroneous. See USSG§ 1B1.3, comment. (n.2)
(district court may consider any implicit agreement fairly inferred
from the conduct of the defendant and others).
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5 This number is approximately 97% of 377 cars.

                    5
Jarrahi and Karladani also maintain that the district court clearly
erred by holding them responsible for losses involving cars for which
the government had not shown conclusive evidence of odometer tam-
pering. However, in determining the amount of loss, the district court
"need only make a reasonable estimate of the loss, given the available
information." USSG § 2F1.1(b)(1), comment. (n.8). Neither Jarrahi
nor Karladani would provide his business records to the government
to assist in sentencing and neither would admit to any criminal con-
duct outside the counts of conviction. It was thus necessary for the
district court to consider circumstantial evidence of additional wrong-
doing. Given the stipulated factual basis for their guilty pleas, we find
that the court did not clearly err in holding Jarrahi and Karladani
responsible for cars handled by their codefendants. Consequently, the
sentences were not wrongly calculated.

We therefore affirm the sentences imposed. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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