                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 23 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-10644

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00099-DAE-2

  v.
                                                 MEMORANDUM*
ERIK GLENN LEDFORD,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Hawaii
                    David A. Ezra, District Judge, Presiding

                       Argued and Submitted June 12, 2014
                               Honolulu, Hawaii

Before: W. FLETCHER, IKUTA, and HURWITZ, Circuit Judges.

       Erik Ledford, convicted of wire fraud under 18 U.S.C. § 1343, appeals his

sentence and the district court’s restitution order. We have jurisdiction pursuant to

18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court did not err in relying on the spreadsheet prepared by the

government to conclude that the fraud loss attributable to Ledford exceeded

$200,000. See United States v. Ali, 620 F.3d 1062, 1073 (9th Cir. 2010). The

spreadsheet had “sufficient indicia of reliability,” id., because it was based on

admissions by other members of the scheme, phone records showing the use of

scheme members’ phones in conjunction with fraudulent transactions, and other

corroborating evidence. The declarations by certain merchants that they had no

record of the losses at issue did not undercut the reliability of the spreadsheet,

given the district court’s finding that many of the merchants were small businesses

with unsophisticated record keeping and the evidence in the record that some of the

fraudulent transactions resulted in a loss to a victim other than the merchant

involved. Nor did the discrepancy between Jennifer Titherington’s stipulation and

her testimony at Ledford’s hearing regarding the transactions in which she was

involved undercut the reliability of the spreadsheet. The district court did not

clearly err in crediting Titherington’s testimony that she participated in the

additional transactions listed on the spreadsheet, and the court did not include in its

loss calculation transactions that were corroborated only through Titherington’s

testimony. Because the district court’s loss calculation was supported by clear and

convincing evidence, the court did not err by imposing the 12-level enhancement


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pursuant to U.S.S.G. § 2B1.1(b)(1). We therefore need not decide whether the

district court could have applied the preponderance of the evidence standard. Cf.

Ali, 620 F.3d at 1073.

      Ledford’s remaining challenges to the district court’s restitution

determination and application of a 4-level enhancement under U.S.S.G.

§ 2B1.1(b)(2) are barred by the appellate waiver in his plea agreement. Cf. United

States v. Speelman, 431 F.3d 1226, 1229 (9th Cir. 2005). On its face, the waiver

does not permit an appeal from the district court’s rulings on restitution or the

§ 2B1.1(b)(2) enhancement. Contrary to Ledford’s argument, in the context of a

scheme such as the one at issue here, the amount of fraud loss is independent of the

number of victims, and therefore the waiver is not ambiguous.

      AFFIRMED in part, and DISMISSED in part.




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