                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 29 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50127

                Plaintiff-Appellee,             D.C. No.
                                                2:13-cr-00675-PSG-1
 v.

RODRIGO PABLO LOZANO, AKA El                    MEMORANDUM*
Profe, AKA Paul Lozano, AKA Rodrigo
Lozano, AKA Rodrigo Paul Lozano,

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Philip S. Gutierrez, District Judge, Presiding

                       Argued and Submitted April 12, 2019
                              Pasadena, California

Before: PAEZ and CLIFTON, Circuit Judges, and ENGLAND,** District Judge.

      Defendant Rodrigo Pablo Lozano (“Defendant”) appeals from the district

court’s trial and sentencing-related decisions. Defendant, an experienced tax

preparer, submitted thousands of fraudulent federal income tax returns to the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
Internal Revenue Service (“IRS”) and was convicted after a jury trial of one count

of Conspiracy to Defraud the United States with Respect to Claims in violation of

18 U.S.C. § 286. Defendant argues on appeal that the district court made the

following errors during trial and in its sentencing guideline calculations: giving the

jury a “deliberate avoidance” instruction when Defendant was only charged with

conspiracy; calculating the applicable sentencing guidelines based on “intended” as

opposed to “actual” loss; making that calculation based on a preponderance of the

evidence rather than by clear and convincing evidence; and ordering restitution

without the benefit of a jury finding, as purportedly required by Apprendi v. New

Jersey, 530 U.S. 466 (2000). We have jurisdiction under 18 U.S.C. § 3742 and 28

U.S.C. § 1291, and we affirm.

      1.     The district court permissibly instructed the jury on deliberate

avoidance. United States v. Ramos-Atondo, 732 F.3d 1113, 1120 (9th Cir. 2013);

United States v. Nicholson, 677 F.2d 706, 710-11 (9th Cir. 1982). Defendant

points to no clearly irreconcilable intervening authority that would allow this Court

to disregard that binding case law. See Miller v. Gammie, 335 F.3d 889, 900

(9th Cir. 2003) (en banc). Nor has Defendant identified any error in the form of

the instruction, which derives from this circuit’s pattern instruction. Accordingly,

no instructional error infected the jury’s decision.

      2.     Given the plain language of U.S.S.G. §§ 2T1.4 and 2T1.1, the district


                                           2
court’s use of “intended loss” was both correct and consistent with the general

fraud guidelines, U.S.S.G. § 2B1.1. Additionally, the court was not required to

make its findings based on an elevated clear and convincing evidence standard in

this conspiracy case. See United States v. Barragan, 871 F.3d 689, 717-19 (9th

Cir. 2017); United States v. Treadwell, 593 F.3d 990, 1001 (9th Cir. 2010). The

district court’s guidelines calculations were thus proper.

       3.     Finally, restitution is not a question that is subject to the protections of

Apprendi. United States v. Green, 722 F.3d 1146, 1149-50 (9th Cir. 2013). And

again, Defendant fails to point to any clearly irreconcilable intervening authority

that compels a conclusion to the contrary. The district court therefore did not err in

its restitution order.

       AFFIRMED.




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