                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 10 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50504

              Plaintiff - Appellee,              D.C. No. 8:06-cr-00129-AG-1

  v.
                                                 MEMORANDUM*
EDWARD SHOWALTER, AKA Edward
R. Showalter, AKA Edward Richard
Showalter, Jr., AKA Edward Richard
Showalter,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                             Submitted June 5, 2014**
                               Pasadena, California

Before: KOZINSKI, Chief Judge, and TROTT and CALLAHAN, Circuit Judges.

       Showalter pleaded guilty to one count of wire fraud in violation of 18 U.S.C.

§ 1343, for which he was sentenced to 151 months imprisonment plus three years

        *
             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).
of supervised release. On appeal, we affirmed (1) the district court’s denial of his

motion to withdraw his plea, and (2) the court’s determination that the “actual” or

“intended” loss attributable to Showalter’s fraud exceeded $7 million. However,

we vacated Showalter’s sentence because the district court did not adequately

determine that there were 50 or more victims of his crime. See U.S.S.G. §

2B1.1(b)(2)(B); United States v. Showalter, 569 F.3d 1150, 1160 (9th Cir. 2009).

      On remand, the district court conducted a new sentencing hearing and

resentenced the defendant to 151 months imprisonment, $15,418,500 in restitution,

and three years of supervised release. We affirm.

      The district court did not err in calculating Showalter’s guidelines range.

See United States v. Ali, 620 F.3d 1062, 1073 (9th Cir. 2010). Suffice it to say that

the district court carefully and thoroughly considered all the evidence before it,

evidence which we find more than convincing and sufficient to support its

determination that there were 50 or more victims of Showalter’s fraud. Special

Agent Whelan’s detailed investigation, evidence, and sworn testimony, his

spreadsheet analysis, the letters reviewed from victims and the victims who

submitted impact statements left no doubt as to the number of victims in this case.

The district court called the evidence “overwhelming.” We agree. We note that

although given an opportunity to cross-examine Special Agent Whelan, counsel for


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Showalter declined to do so. The court even re-examined the amount of loss

involved and came to the same conclusion: in excess of $7 million.

      Showalter raises additional claims of error involving his plea agreement.

Because he did not raise these claims in his first appeal, they are waived. See

United States v. Nagra, 147 F.3d 875, 882 (9th Cir. 1998). In any event, they have

no merit.

      AFFIRMED.




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