                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 17 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50241

                Plaintiff-Appellee,             D.C. No. 8:13-cr-00001-AG-1

 v.
                                                MEMORANDUM*
MOMOUD AREF ABAJI, AKA Aref
Abagi, AKA Aref Obagi,

                Defendant-Appellant.

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

                        Argued and Submitted June 4, 2020
                              Pasadena, California

Before: OWENS and BUMATAY, Circuit Judges, and MOLLOY,** District
Judge.

      Momoud Abaji appeals from his convictions and sentence for federal

mortgage fraud. Regarding his conviction, Abaji argues: (1) the government

committed misconduct in its closing argument by falsely stating that Abaji


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
“confessed”; (2) the jury instructions constructively amended the indictment by

allowing the jury to find Abaji guilty of wire fraud based on a mens rea of

recklessness; (3) with regard to Abaji’s tax evasion charges, the district court failed

to instruct the jury on the lesser-included misdemeanor offense of willfully failing

to pay a tax; and (4) the panel should reverse based on cumulative error.

Regarding his sentence, Abaji argues: (5) the district court erred by applying a

three-level enhancement based on Abaji’s role as a manager or supervisor in the

criminal activity; (6) the district court erred in calculating the amount of loss

attributable to Abaji; and (7) using a loss calculation based on judge-found facts

for restitution and sentencing violated the Sixth Amendment. We have jurisdiction

under 28 U.S.C. § 1291 and 28 U.S.C. § 3742. As the parties are familiar with the

facts, we do not recount them here. We affirm in part, vacate in part, and remand

for resentencing.1

      1.     Although “[p]rosecutors are free in argument to suggest that the jury

draw reasonable inferences from the evidence presented at trial,” United States v.

Flores, 802 F.3d 1028, 1035 (9th Cir. 2015), the government commits

prosecutorial misconduct if it makes unsupported factual claims during closing

arguments, United States v. Kojayan, 8 F.3d 1315, 1321 (9th Cir. 1993). Because



1
 We resolve the companion appeals, United States v. Obagi, No. 18-50170, and
United States v. Salah, No. 18-50171, in a concurrently filed opinion.

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Abaji did not object to the government’s argument at trial, we review for plain

error. Flores, 802 F.3d at 1034.

      Here, the prosecutor did not misstate the evidence when he argued that Abaji

confessed. Instead, a witness testified that Abaji called Excel Investments “a big

fraud.” The prosecutor then accurately described this testimony and invited the

jury to infer that Abaji knew about the fraud at the time. While Abaji never

directly stated “I knowingly participated in wire fraud,” the prosecutor acted

reasonably when he characterized Abaji’s words as a confession.

      2.     “A defendant charged in a federal criminal case by a grand jury’s

indictment may only be tried on the charges set forth in that indictment. A district

court that constructively amends an indictment by its instructions to the jury

commits error.” United States v. Dipentino, 242 F.3d 1090, 1094 (9th Cir. 2001)

(internal citation omitted). Abaji’s indictment charged him with acting “knowingly

and with intent to defraud,” but the district court gave an instruction defining

statements as fraudulent if made with “reckless indifference as to [their] truth or

falsity.” Because Abaji did not object to the court’s instruction at trial, we review

for plain error. Id.

      We have previously authorized the same instruction used in Abaji’s trial

because “[o]ne who acts with reckless indifference as to whether a representation

is true or false is chargeable as if he had knowledge of its falsity.” United States v.


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Lloyd, 807 F.3d 1128, 1164 (9th Cir. 2015) (alteration in original) (citation

omitted). The district court did not plainly err by following this precedent.

      3.     Because Abaji did not request a lesser-included-offense instruction at

trial, we review for plain error whether the district court should have given such an

instruction. United States v. Anderson, 201 F.3d 1145, 1148 (9th Cir. 2000). In

non-homicide cases, a defendant’s failure to request a lesser-included offense

instruction “must be considered a matter of trial strategy and not error.” United

States v. Boone, 951 F.2d 1526, 1542 (9th Cir. 1991) (citation omitted). The

district court’s failure to instruct the jury sua sponte was not plain error.

Henderson v. United States, 568 U.S. 266, 278 (2013).

      4.     “Cumulative error applies only when multiple errors exist such that

our review of them would be better served by examining the prejudice

collectively. . . .” United States v. Lindsay, 931 F.3d 852, 869 (9th Cir. 2019).

Because the district court did not err in Abaji’s trial, Abaji’s theory of cumulative

error “necessarily fails.” United States v. Jeremiah, 493 F.3d 1042, 1047 (9th Cir.

2007).

      5.     The Sentencing Guidelines provide for a three-level enhancement

when the government proves that the defendant was a “manager or supervisor” in

criminal activity involving five or more participants. U.S.S.G. § 3B1.1(b). Abaji

argues that the district court failed to make specific factual findings showing that


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Abaji exercised the requisite control or authority over another participant, in

violation of Federal Rule of Criminal Procedure 32. However, Rule 32 does not

require the district court to provide a detailed explanation of its sentencing

decision. Indeed, “[t]he district court need not make any specific findings as to

this issue so long as evidence in the record supports an inference that the defendant

exercised the requisite degree of control.” United States v. Gadson, 763 F.3d

1189, 1222 (9th Cir. 2014). The record shows that Abaji exercised control over

other participants in the mortgage fraud, and the district court did not abuse its

discretion in applying § 3B1.1(b). See United States v. Gasca-Ruiz, 852 F.3d

1167, 1170–71 (9th Cir. 2017) (en banc).

      6.     When determining loss amounts under U.S.S.G. § 2B1.1, Abaji argues

that the government wrongly included payments the lenders made under

repurchase and indemnity agreements with Fannie Mae and Freddie Mac. While

Abaji did not make this exact argument to the district court, we review the court’s

interpretation of the Guidelines de novo because Abaji preserved his objection to

the loss calculation. Lloyd, 807 F.3d at 1174–75 (“[I]t is claims that are deemed

waived or forfeited, not arguments.” (citation omitted)).

      In mortgage fraud cases, we use a two-step method for calculating loss:

(1) take “the entire value of the principal of the loan” and (2) subtract “any amount

recovered or recoverable by the creditor from the sale of the collateral.” United


                                           5                                      18-50241
States v. Morris, 744 F.3d 1373, 1375 (9th Cir. 2014). Section 2B1.1 also excludes

“[i]nterest of any kind, finance charges, late fees, penalties, amounts based on an

agreed-upon return or rate of return, or other similar costs” from a defendant’s loss

amount. U.S.S.G. § 2B1.1 cmt. n.3(D)(i). The district court erred when it deviated

from this two-step method and included indemnity payments based on anticipated

interest. Because the district court did not make factual findings to support any

alternative loss calculation, we remand for the district court to reconsider the loss

amount attributable to Abaji. See United States v. Standard, 207 F.3d 1136, 1140

(9th Cir. 2000).

      7.     Under Apprendi v. New Jersey, certain facts that increase a criminal

punishment must be found by a jury beyond a reasonable doubt. 530 U.S. 466, 490

(2000). However, we have repeatedly held that Apprendi does not apply to

criminal restitution orders. United States v. Green, 722 F.3d 1146, 1149 (9th Cir.

2013) (collecting cases). Furthermore, we have held that “the sentencing judge has

the power to sentence a defendant based upon facts not found by a jury up to the

statutory maximum, and . . . the defendant has no right to a jury determination of

the facts that the judge deems relevant.” United States v. Fitch, 659 F.3d 788, 796

(9th Cir. 2011) (internal quotation marks and citation omitted). Abaji has failed to

identify any intervening Supreme Court decision that is “clearly irreconcilable”

with these precedents. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en


                                           6                                    18-50241
banc). The district court did not err by basing its restitution order and Guidelines

calculation on judge-found facts.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR

RESENTENCING.




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