                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 16 2011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. 10-50063

              Plaintiff - Appellee,              D.C. No. 2:08-cr-01028-PA-2

  v.
                                                 MEMORANDUM *
RONNIE FEKRAT,

              Defendant - Appellant.




                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                       Argued and Submitted August 3, 2011
                               Pasadena, California

Before: REINHARDT and BERZON, Circuit Judges, and KENNELLY, District
Judge.**

       Defendant-Appellant Ronnie Fekrat appeals the district court’s imposition of

a thirty-six month sentence of imprisonment after a jury convicted him on one


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for Northern Illinois, Chicago, sitting by designation.
count of unauthorized use of an access device, in violation of 18 U.S.C. §

1029(a)(2), and one count of conspiracy to commit the same, in violation of 18

U.S.C. § 371. Fekrat contends that the district court erred in calculating his loss

amount under U.S.S.G. § 2B1.1(b)(1).

      We affirm. The district court’s “[f]actual findings, including the calculation

of the victim’s loss, are reviewed for clear error.” United States v. Tulaner, 512

F.3d 576, 578 (9th Cir. 2008). The court did not clearly err in finding that Fekrat

intended to cause losses totaling $1,237,298. See U.S.S.G. § 2B1.1 cmt. n.3(A)

(noting that “loss is the greater of actual loss or intended loss”). There was ample

evidence that Fekrat initiated fraudulent credit card charges in this amount using

the electronic merchant terminal of his co-conspirator, Chris Johnson. See id. cmt.

n.3(F)(i) (“In a case involving any counterfeit access device or unauthorized access

device, loss includes any unauthorized charges made with the counterfeit access

device or unauthorized access device and shall be not less than $500 per access

device.”) (emphasis added). Though American Express rejected many of these

charges, intended loss “includes intended pecuniary harm that would have been

impossible or unlikely to occur.” Id. cmt. n.3(A)(ii). Finally, the court’s

calculation of different loss amounts for Fekrat and Johnson is consistent with

evidence tending to show that Johnson’s knowledge of the scope and details of the

fraudulent scheme was more limited than Fekrat’s.
AFFIRMED.
