Unpublished Disposition, 917 F.2d 29 (9th Cir. 1989)

MEMORANDUM

Osawe pleaded guilty to mail fraud in violation of 18 U.S.C. § 1341 and was sentenced to fifteen months imprisonment. On appeal Osawe challenges only the sentence. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.

Sentencing guidelines Sec. 2F1.1 specifies the sentencing range for offenses involving fraud or deceit. Enhancements are imposed for frauds creating losses in excess of $2,000, based on the amount of loss caused. Sentencing Guidelines Sec. 2F1.1(b) (1).

The amount necessary for enhancement has been changed. Until November 1, 1989, section 2F1.1(b) (1) imposed a four-point enhancement for losses in the range of $20,001-$50,000, and a five-point enhancement for losses in the range of $50,001-$100,000. United States Sentencing Commission, Guidelines Manual app. C at 88. The sentencing guidelines were amended effective November 1, 1989, after Osawe committed his crimes but before he was sentenced. The amendment potentially increases the sentencing range applicable to Osawe, because the dividing line was lowered from $50,000 to $40,000. The district court apparently was not advised of the amendment and sentenced Osawe under the old guidelines.

18 U.S.C. § 3553(a) (4) provides that the district court shall apply the sentencing guidelines in effect on the date of sentencing. 18 U.S.C. § 3553(a) (4); see also United States v. Turner, 898 F.2d 705, 709 n. 1 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990). However, the Supreme Court in Miller v. Florida, 482 U.S. 423 (1987), held that a similar provision of Florida's sentencing guidelines violated the ex post facto clause as applied against a defendant whose crimes were committed before an amendment to the sentencing guidelines increasing the sentencing range.

The government does not challenge the use of the old guidelines; indeed, at oral argument, the government expressed its view that under Miller, sentencing Osawe under the new $40,000 limit would violate the ex post facto clause. The district court's choice is neither challenged on appeal nor necessary to our disposition. The evidence is sufficient to show losses over $50,000. Therefore, we express no view on the issue.

In estimating losses for sentencing purposes, the district court must consider both actual and intended losses. United States v. Wilson, 900 F.2d 1350, 1355 (9th Cir. 1990). Actual losses, unchallenged by Osawe, were suffered in counts two, three, four, seven, and nine. Osawe does not challenge the intended loss estimates in counts one and five. Uncontested losses from these seven counts total $39,491, an average loss per count of $5,641. In addition, the district court estimated the losses in counts six and eight at $5500 each, for a total loss estimate of $50,491. Accordingly, the district court imposed a five point sentencing enhancement.

Osawe challenges the loss estimates for counts six and eight. We review the district court's factual findings for clear error. United States v. Burns, 894 F.2d 334, 336 (9th Cir. 1990).

In count six the district court relied on an estimate prepared by an insurance company claims supervisor. He estimated the loss in count six would have been for "a minimum of $5,500." Osawe argues this loss estimate was ultimately based on the Kelley Bluebook, which states a range of $4400-$6355 for the car in question. He urges the use of $4400, the low end estimate, in lieu of the insurance adjuster's estimate. He offers no reason for this choice except that it would result in a lighter sentence. Indeed it would. But the district court's estimate of $5500, based on the insurance adjuster's estimate and within the Kelley Bluebook range, is not clearly erroneous. Thus, we reject Osawe's challenge as to count six.

For count eight the district court accepted the presentence report estimate of $5,500, which was based on the average loss in the unchallenged counts. This method of loss estimation is expressly approved in the sentencing guidelines.

The amount of loss need not be precise. The court is not expected to identify each victim and the loss he suffered to arrive at an exact figure. The court need only make a reasonable estimate of the range of loss, given the available information. The estimate may be based on the approximate number of victims and an estimate of the average loss to each victim, or on more general factors, such as the nature and duration of the fraud and the revenues generated by similar operations.

Sentencing Guidelines Sec. 2F1.1, commentary, application note 8 (emphasis added). Thus, the district court was entitled to rely on the losses in other counts to estimate the loss in count eight. This estimate is not clearly erroneous. Osawe's challenge of the loss estimate fails.

Osawe also challenges the district court's findings as based on unreliable evidence in violation of due process. When the district court relies on materially false or unreliable evidence in sentencing, the defendant's due process rights are violated. United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986); see also Sentencing Guidelines Policy Statement Sec. 6A1.3 (requiring reliability in evidence). In seven of the counts, victims wrote checks for the loss amounts, and in five of these instances, Osawe actually received the checks. There can be no more reliable evidence than this.

The district court could only estimate the loss in count six because the fraud had not progressed to the point where a claim check had been prepared. Due process does not require a fraud to proceed to fruition before it can be considered in sentencing. The district court used an acceptable method of estimation in the absence of an insurance company check.

The district court estimated the loss in count eight based on the losses in the other eight counts. The evidence supporting these loss amounts, as we have already held, was reliable. Therefore, Osawe's due process objection to count eight merely restates his objection to the method of estimation, which we have already held is entirely acceptable.

AFFIRMED.