                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 20 2009

                                                                        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. 08-10481

              Plaintiff - Appellee,              D.C. No. 2:06-cr-00291-PMP-LRL

  v.
                                                 MEMORANDUM *
LONNIE LILLARD,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                      Argued and Submitted November 2, 2009
                             San Francisco, California

Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.

       Lonnie Lillard appeals his conviction following a jury trial for fraud and

conspiracy to commit fraud arising out of his involvement in a pre-paid debit card

scheme. We have jurisdiction to review a defendant’s challenges to his conviction




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and sentence under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We affirm in part,

but vacate the sentence on the conspiracy count and remand for resentencing.

      In July 2006, an investigation into fraudulent pre-paid debit card

transactions led law enforcement officers to Room 26006 of the Treasure Island

Hotel and Casino in Las Vegas. The officers executing the search warrant for

Room 26006 found evidence indicating the existence of a fraudulent debit card

scheme, including a merchant credit card terminal and keypad, a laptop computer,

receipts of sales and returns, money orders, and re-encoded credit cards, gift cards,

and pre-paid Visa cards. Evidence in Room 26006 linked Lillard to the fraudulent

scheme and hotel records showed that Room 27050 was registered to Lillard. The

officers conducting the search of Room 26006 ran Lillard’s name through a

criminal database and turned up felony convictions for forgery and counterfeiting.

      Before officers could apply for a search warrant for Room 27050, a man

came to the door of Room 26006 and fled upon seeing the officers. Officers

caught up to him on the ground floor of the hotel and found a cell phone nearby.

Within minutes of the man’s knocking on the door of Room 26006, three women

came to the room and, upon being questioned, said they were returning

merchandise for Lillard. One woman stated that she knew Lillard and was staying

with him in Room 27050.


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      Concerned by the number of people who knew about the search and the

potential that the suspect who initially fled might have alerted accomplices to the

presence of police, law enforcement officials decided to secure Room 27050 to

prevent the destruction of evidence and to keep any other suspects from fleeing.

Upon entering Room 27050, the officers encountered Lillard. When asked for

identification, Lillard motioned toward the night stand, where an officer found

several credit cards. After an officer took Lillard into custody, the officers exited

and secured the room.

      A magistrate judge issued a warrant for the search of Room 27050, which

officers executed the next day, discovering many items similar to those found in

Room 26006. Officers also found a valet ticket for a rental car and later obtained a

warrant to search the car. However, the officer who prepared the affidavit in

support of the warrant application for the rental car erroneously asserted that

Lillard had used the alias Rahman Johnson to rent Room 26006, when, in actuality,

Lillard and Johnson are two different people. Officers searched the car on August

9, 2006, and found additional evidence of the fraudulent scheme.

      Before trial, Lillard moved to suppress evidence found in Room 27050 and

the rental car as tainted by the initial warrantless entry into his hotel room. The

district court denied the motion. On appeal, Lillard challenges the legality of the


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initial warrantless entry and arrest and the validity of the search warrants for his

hotel room and rental car. We review the district court’s legal conclusions on a

motion to suppress de novo and the underlying factual findings for clear error.

United States v. Silva, 247 F.3d 1051, 1054 (9th Cir. 2001).

      An abundance of evidence discovered in Room 26006 linked Lillard and

Room 27050 to the fraudulent scheme. Many items discovered in Room 26006 –

including a driver’s license, credit cards, and a casino “player’s club” card as well

as money orders, receipts, gift cards, and checks – bore Lillard’s name. This

evidence indicated a fair probability that Lillard was involved in criminal activity,

providing probable cause for the arrest and the search of Room 27050. See United

States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007); United States v. Brooks, 367

F.3d 1128, 1134 (9th Cir. 2004). Exigent circumstances existed because law

enforcement officials had reason to believe that any evidence in Room 27050 could

be destroyed or that another suspect could attempt to flee. See Brooks, 367 F.3d at

1135. Thus, probable cause and exigent circumstances justified the warrantless

entry and arrest. See id.; Bailey v. Newland, 263 F.3d 1022, 1032 (9th Cir. 2001).

      In addition, law enforcement officers searched both Room 27050 and the

rental car pursuant to valid warrants. The affidavits in support of the search

warrants provided probable cause even after striking any objectionable


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information. See United States v. Reed, 15 F.3d 928, 933 (9th Cir. 1994). Thus,

the district court did not err in admitting the evidence obtained during these

searches.

      Lillard also appeals his sentence for conspiracy to commit wire fraud,

arguing that his sentence exceeded the statutory maximum. We review the legality

of a sentence de novo. United States v. Flores, 559 F.3d 1016, 1019 (9th Cir.

2009). The parties agree and the statute is clear that the maximum sentence for a

violation of 18 U.S.C. § 1029(b)(2) is 60 months. 18 U.S.C. § 1029(b)(2),

(c)(1)(A)(i). The district court erred in sentencing Lillard to 84 months on Count

Three, in excess of the statutory maximum. Therefore, we vacate Lillard’s

sentence on Count Three and remand for resentencing.

      Finally, Lillard contends that the court erred in setting the amount of

restitution. A restitution order that is within statutory bounds is reviewed for abuse

of discretion. United States v. Waknine, 543 F.3d 546, 555 (9th Cir. 2008).

Factual findings supporting a restitution order are reviewed for clear error. Id. We

review the legality of a restitution order de novo. Id.

      The district court set restitution under the Mandatory Victims Restitution

Act of 1996 at the amount of loss to which the victim company’s fraud specialist

testified and the amount that the presentence report recommended. The district


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court did not have to adopt Lillard’s calculation of loss. It had flexibility to

determine the total amount of loss. See id. at 557. Furthermore, the district court

was not required to deduct from the amount of restitution owed funds seized by the

government but not received by the victim company. See United States v. Bright,

353 F.3d 1114, 1122-23 (9th Cir. 2004). Therefore, we affirm the district court’s

order of restitution.

       AFFIRMED IN PART; SENTENCE VACATED IN PART and

REMANDED FOR RESENTENCING.




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