                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 03 2012

                                                                        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. 11-50174

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01005-VBF-28

  v.
                                                 MEMORANDUM *
JOSHUA VINCENT FAUNCHER, AKA
Fauncher Alfaro, AKA Josh Alfaro, AKA
Joshua Alfaro, AKA Joshua Paul Alfaro,
AKA Joshua VP Alfaro, AKA Alfaro
Fauncher, AKA Joshua Fauncher, AKA
Joshua Paul Fauncher, AKA Joshua
Vincent Paul Al Fauncher, AKA Jay, AKA
Joshua V. Paulalfaro, AKA Joshua V.
Paulaturofaunc,

              Defendant - Appellant.



                  Appeal from the United States District Court
                       for the Central District of California
                 Valerie Baker Fairbank, District Judge, Presiding

                     Argued and Submitted December 5, 2011
                              Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PREGERSON and MURGUIA, Circuit Judges, and CONLON, District
Judge.**


        Defendant Joshua Vincent Fauncher appeals the 11-month sentence imposed

following his guilty plea to one count of conspiracy to commit wire and bank fraud

in violation of 18 U.S.C. § 1349, in connection with a multi-level “phishing”

conspiracy originating in Egypt. We have jurisdiction over this matter pursuant to

28 U.S.C. § 1291. The facts are known to the parties, and we do not recite them

here.

        Whether the district court violated due process by using an improper

standard of proof is a question of constitutional law that the Court reviews de novo.

United States v. Berger, 587 F.3d 1038, 1042 (9th Cir. 2009). We find that the

district court correctly applied the preponderance of the evidence standard in

determining that the sentencing enhancement for overseas nexus in a fraud scheme

applied. The district court imposed an 11-month sentence, which was 4 months

below the low end of the 15- to 21-month United States Sentencing Guidelines

(“U.S.S.G.”) range and only one month higher than the high end of the unenhanced

range of 4 to 10 months. Under the totality of the circumstances, and in light of the

ultimate sentence imposed, the enhancement did not have an extremely



        **
            The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
disproportionate impact on the sentence requiring proof by clear and convincing

evidence. See United States v. Jordan, 256 F.3d 922, 930 (9th Cir. 2001) (holding

that when a sentencing factor has an “extremely disproportionate impact” on a

sentence relative to the offense of conviction, due process requires that the

government prove facts underlying the enhancement by clear and convincing

evidence).

      This Court “review[s] . . . the district court’s application of the Guidelines to

the facts of the case for abuse of discretion, and the district court’s factual findings

for clear error.” United States v. Treadwell, 593 F.3d 990, 999 (9th Cir. 2010).

The district court did not clearly err in determining that the overseas nexus

enhancement applied. Defendant’s statement that he knew the money was coming

from overseas sufficiently demonstrated actual knowledge under a preponderance

of the evidence standard to support a finding that it was reasonably foreseeable to

Defendant that a substantial part of the fraudulent scheme was committed from

outside of the United States. See U.S.S.G. § 2B1.1(b)(9)(B) (2010) (describing the

overseas nexus enhancement as requiring that “a substantial part of a fraudulent

scheme was committed from outside the United States”).

      Finally, the district court did not clearly err in denying Defendant a minimal

role mitigating adjustment under U.S.S.G. § 3B1.2. The mitigating role adjustment

is available for “a defendant who plays a part in committing the offense that makes
him substantially less culpable than the average participant.” U.S.S.G. § 3B1.2

cmt. n.3(A) (2010). Here, Defendant was similarly situated to the numerous other

defendants who opened fraudulent bank accounts and withdrew unlawfully

transferred proceeds. The district court found that although Defendant was not as

active as the main participants in the conspiracy, his role was nevertheless an

“essential” one. In light of the district court’s finding, we find no clear error in the

district court’s denial of a minimal role mitigating adjustment.

      Defendant’s sentence is AFFIRMED.
