                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             AUG 30 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10469

              Plaintiff - Appellee,              D.C. No. 1:13-cr-00013-RVM-1

 v.
                                                 MEMORANDUM*
MARIANO KOYAMA PANGELINAN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                  for the District of the Northern Mariana Islands
                   Ramona V. Manglona, Chief Judge, Presiding

                             Submitted June 14, 2016**
                                Honolulu, Hawaii

Before: THOMAS, Chief Judge, and CALLAHAN, and MURGUIA, Circuit
Judges.

      Mariano Koyama Pangelinan entered a plea agreement and pleaded guilty to

one count of conspiracy to commit visa fraud and to defraud the United States in

violation of 18 U.S.C. § 371. On appeal, he claims that the district court erred in

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
ordering him to pay restitution to 99 work visa applicants deemed to have been

victims of his fraudulent acts. We have jurisdiction under 18 U.S.C. § 1291 and

affirm in part and vacate in part.

      1. On de novo review, we affirm the district court’s determination that 99

aliens were victims of Pangelinan’s fraud. See United States v. De La Fuente, 353

F.3d 766, 771 (9th Cir. 2003); United States v. Sanga, 967 F.2d 1332, 1334 (9th

Cir. 1992). To qualify as a victim, a person must be “directly and proximately

harmed” by the defendant’s conduct. 18 U.S.C. § 3663(a)(2).

      The record shows that, for a fee of $810.00, Pangelinan filed work visa

applications with the United States Citizenship and Immigration Services on behalf

of 99 aliens whom he purported to employ. To create the appearance that the

employment relationship was legitimate, he required applicants to sign illusory

employment contracts with the business entity he owned and charged applicants

sums for employment taxes even though they did not perform work for the

company or earn wages from it. Pangelinan reassured them that their compliance

was essential to the application process. The record further shows that during the

course of the conspiracy, Pangelinan admitted to an immigration service agent that

he did not employ any of the applicants he assisted, and disregarded the warning he

received from the agent that his conduct was illegal. Based on this evidence, we

                                         2
reject Pangelinan’s contention that the applicants were participants in his scheme.

The record sufficiently establishes that the applicants were directly and

proximately harmed by, and thus “victims” of, his deception.

      2. The district court did not err in relying on circumstantial evidence to

estimate the victims’ actual losses. We review the court’s method of calculation

for abuse of discretion and the factual findings supporting that calculation for clear

error. United States v. Marks, 530 F.3d 799, 811 (9th Cir. 2008). The district

court was required to determine the “proper amount or type of restitution” by a

preponderance of the evidence. 18 U.S.C. § 3664(e). We recognize, however, that

district courts have “a degree of flexibility in accounting for a victim’s complete

losses.” United States v. Waknine, 543 F.3d 546, 557 (9th Cir. 2008) (quoting

United States v. Gordon, 393 F.3d 1044, 1053 (9th Cir. 2004)).

      Here, the district court found that six victims suffered losses exceeding the

$810.00 fee charged by Pangelinan. As to the remaining victims, the district court

estimated, based on interviews conducted of 22 victims and Pangelinan’s own

statements to the immigration authorities, that each victim lost $810.00. The

evidence possesses a “sufficient indicia of reliability to support its probable

accuracy.” U.S.S.G. § 6A1.3(a); Waknine, 543 F.3d at 557 (quoting United States

v. Garcia-Sanchez, 189 F.3d 1143, 1148 (9th Cir. 1999)). Having relied on this

                                           3
evidence, the district court did not choose a methodology that was arbitrary,

irrational or contrary to law.

      The record supports, and we affirm, the restitution order with respect to all

but two victims who, as the government concedes and the record demonstrates,

suffered actual losses of less than $810.00 per victim. We find that the district

court clearly erred in overestimating these losses. Accordingly, we vacate the

restitution order and remand to the district court for the limited purpose of

modifying the order to reflect the smaller losses suffered by the two victims whose

losses were overestimated.

      AFFIRMED IN PART, VACATED IN PART, REMANDED. Each party

shall bear its own costs.




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