                                                                            FILED
                              NOT FOR PUBLICATION                            MAY 18 2010

                                                                         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. 09-50283

                Plaintiff - Appellee,              D.C. No. CR 06-314-JSL

  v.
                                                   MEMORANDUM *
NNANNA PRINCE WILL ISU,

                Defendant - Appellant.



                      Appeal from the United States District Court
                          for the Central District of California
                    J. Spencer Letts, Senior District Judge, Presiding

                           Argued and Submitted May 4, 2010
                                 Pasadena, California

Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and LEFKOW,**
District Judge.

       Nnanna Prince Will Isu appeals his sentence of seventy-eight months

imprisonment imposed after he pled guilty to one count of mail fraud in violation




            *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
of 18 U.S.C. § 1341. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because

the parties are familiar with the facts and procedural history, we do not restate

them here except as necessary to explain our disposition. We affirm.

      Because Isu objected to the probation office’s loss calculation, which was

the basis for an upward adjustment in Isu’s guidelines calculation, the government

bore the burden of proof in establishing the factual predicate for the adjustment.

United States v. Ameline, 409 F.3d 1073, 1085–86 (9th Cir. 2005) (en banc).1 This

does not mean, however, that Isu had no burden to rebut the government’s

proffered evidence. See United States v. Garcia-Sanchez, 189 F.3d 1143, 1149

(9th Cir. 1999). Isu presented only speculation that some deposits in his account

may have been from gambling winnings. Because he did not refute the

government’s proof, and a reasonable inference could be drawn from the evidence

presented that the unaccounted-for deposits in Isu’s account and the

uncorroborated entries in Vaughan’s check ledger were related to the fraud, the



      1
        Contrary to the parties’ position that the district court was to find the loss
amount by clear and convincing evidence, a preponderance of the evidence
standard applies. Under U.S.S.G. § 2B1.1(b)(1)(G) and (H), Isu’s position on the
loss calculation would be over $200,000 (a twelve-level increase) instead of the
government’s position of over $400,000 (a fourteen-level increase). A two-level
disparity would not result in an “extremely disproportionate effect” on the sentence
that would require the application of a clear and convincing standard of proof. See
United States v. Armstead, 552 F.3d 769, 777–78 & n.6 (9th Cir. 2008).

                                           2
district court’s determination that the government established the amount of loss

attributed to Isu was not clear error.

      The court also did not err in considering all losses caused by Isu’s scheme

and not just those amounts obtained through mail fraud. To be considered relevant

conduct, the conduct need not be groupable or a violation of federal law as long as

the offense of conviction itself is a groupable offense and the other conduct is part

of the same course of conduct or common scheme or plan. See U.S.S.G.

§ 1B1.3(a)(2) (2002); United States v. Newbert, 952 F.2d 281, 284 (9th Cir. 1991).

        Isu’s sentence is both procedurally and substantively reasonable. The

district court properly calculated Isu’s guidelines range and sufficiently addressed

Isu’s arguments in mitigation. See Rita v. United States, 551 U.S. 338, 358–59

(2007); United States v. Carty, 520 F.3d 984, 995–96 (9th Cir. 2008) (en banc).

Although within-guidelines sentences are not presumed reasonable, they are not

often deemed unreasonable where the court has considered the relevant factors in

imposing a sentence. Carty, 520 F.3d at 993–94. Here, the district court recited

that it considered a seventy-eight month sentence sufficient but not greater than

necessary to account for the nature and circumstances of Isu’s offense, particularly

where Isu had targeted vulnerable victims and cynically used his own disability to

his advantage in doing so. Considering the totality of the circumstances, the


                                           3
district court’s choice of the high end of the guideline range was not an abuse of

discretion.

      AFFIRMED.




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