                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 04 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10441

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00054-TLN-1

 v.
                                                 MEMORANDUM*
CHRISTOPHER JACKSON,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of California
                     Troy L. Nunley, District Judge, Presiding

                        Argued and Submitted May 11, 2016
                             San Francisco, California

Before: KLEINFELD, IKUTA, and WATFORD, Circuit Judges.

      1. The government introduced sufficient evidence at trial to prove beyond a

reasonable doubt that Christopher Jackson committed wire fraud in violation of 18

U.S.C. § 1343. Viewing the evidence in the light most favorable to the

government, a reasonable jury could conclude that Jackson participated in a



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                           Page 2 of 4
scheme to defraud, used wire transfers in furtherance of the scheme, and

specifically intended to defraud his victims. See United States v. Jinian, 725 F.3d

954, 960 (9th Cir. 2013). Jackson misrepresented to investors that the money they

loaned would be used to fund “no-risk” real estate development projects when in

actuality Jackson used the money they loaned to pay for Jackson’s personal

expenses and to pay Genesis’ earlier investors. We reject Jackson’s argument that

the government had an obligation to establish that funds equal to the amount

investors gave Jackson were not invested in KOA and Sycamore through other

investment clubs. Though tracing of particular amounts may have been

immaterial, there was no evidence raising a serious question whether amounts

roughly equal to the money loaned were invested in real estate.

      The district court did not abuse its discretion in holding that the Romo plea

agreement was inadmissible on relevance grounds because Romo’s theft from

Sycamore does not bear on whether Jackson defrauded investors.

      The government’s case-in-chief relied solely upon Jackson’s

misrepresentations to investors, so there was neither a constructive amendment of

the superseding indictment nor a constructive variance. See United States v.

Adamson, 291 F.3d 606, 614–15 (9th Cir. 2002). The evidence presented at trial

did not differ from the misrepresentation theory alleged in the superseding
                                                                            Page 3 of 4
indictment. The government did not alter the crime charged in the superseding

indictment such that “it was impossible to know whether the grand jury would

have indicted for the crime actually proved.” Id. at 615.

      2. The district court properly applied the preponderance-of-the-evidence

standard at sentencing. The district court increased Jackson’s offense level based

primarily on the amount of loss, the number of victims involved, and an adjustment

for role in the offense. Because these enhancements were based entirely on the

extent of the offense, the district court did not have to use a heightened standard of

proof at sentencing. United States v. Armstead, 552 F.3d 769, 777 (9th Cir. 2008).

      3. The record does not support Jackson’s argument that the district court

subjected him to a longer prison sentence because he exercised his right to stand

trial. The district court made the statement, “You went to trial, you gambled, you

took a chance, and you lost,” to explain why there was no unwarranted disparity

between Jackson’s sentence and the sentence of his co-defendant Michael Bolden,

who pleaded guilty pursuant to a plea agreement that capped his sentencing

exposure to the statutory maximum of 20 years. The district court never suggested

at sentencing that it believed Jackson’s decision to go to trial resulted in a waste of

the court’s time and resources. See United States v. Medina-Cervantes, 690 F.2d

715, 716–17 (9th Cir. 1982).
                                                                           Page 4 of 4
      4. The district court did not clearly err at sentencing by imposing a 2-level

enhancement for obstruction of justice. A district court must make the following

factual findings when imposing an obstruction enhancement based on the

defendant’s having committed perjury at trial: “(1) that the defendant gave false

testimony under oath (2) concerning a material matter (3) with the willful intent to

provide false testimony, rather than as a result of confusion, mistake, or faulty

memory.” United States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir. 2002). The

district court here made the requisite findings. The court stated that Jackson’s false

testimony concerned a material matter because it concerned an element of the wire

fraud offense: whether he lied to investors. Once the district court decided to

impose the enhancement for obstruction of justice, the government informed the

court that it had to make the finding that the “highlighted testimony was knowingly

false, material and under oath.” The court responded, “The Court will make that

finding.” The record makes clear that the district court made the requisite findings

for an obstruction of justice enhancement.

      AFFIRMED.
