Unpublished Disposition, 935 F.2d 276 (9th Cir. 1991)

MEMORANDUM^** 

Solomon Goddy Lato ("Lato") appeals his sentence for mail fraud in violation of 18 U.S.C. § 1341. He argues that the district court erred in determining he was a leader or organizer, refusing to recommend against deportation, and using seized funds as a source of restitution.

We affirm in part and dismiss in part.

BACKGROUND FACTS

The relevant facts are stated in the published opinion in this case.

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over the organizer-leader and restitution claims pursuant to 18 U.S.C. § 3742. We do not determine whether we have jurisdiction over the Judicial Recommendation Against Deportation (JRAD) claim.

We review the district court's determination that Lato was a leader or organizer for clear error. United States v. Howard, 894 F.2d 1085, 1088 (9th Cir. 1990). We review the district court's order of restitution for abuse of discretion, provided it is authorized under the applicable statute. United States v. Pomazi, 851 F.2d 244, 247 (9th Cir. 1988), disapproved on other grounds, Hughey v. United States, --- U.S. ----, 110 S. Ct. 1979, 109 L. Ed. 2d 408 (1990).

DISCUSSION

A. Lato's role as a leader or organizer.

Lato argues that the district court should not have increased his offense level under U.S.S.G. Sec. 3B1.1 (Nov. 1989) for his role in the offense. The district court was presented with ample evidence to support its finding that Lato supervised at least one other person. Two co-conspirators told police they had acted under Lato's direction, and Lato wrote letters to a third in which he indicated that he had orchestrated the schemes.

Moreover, Lato was on notice that the government felt he had organized an unidentified number of people, and that his criminal activity was extensive in some respects. U.S.S.G. Sec. 3B1.1(a). Also, because the government never made any promises regarding Lato's offense level computation, Lato cannot claim that the upward adjustment violated his plea bargain.

There was no clear error.

B. Judicial Recommendation Against Deportation (JRAD)

Even if the district judge's refusal to grant a JRAD were appealable, which we do not decide, the issue is moot because the authority to grant a JRAD no longer exists. "Consequently, the JRAD denial is not a correctable error." United States v. Murphey, No. 90-10178, slip op. at 5335, 5341 (9th Cir. Apr. 29, 1991).

Lato argues that the district judge should not have used $11,700 seized from Lato as a possible basis for restitution. The crux of the argument is that Lato feels the district judge accepted jurisdiction over property that he previously had found to be outside the scope of his jurisdiction due to a pending administrative forfeiture proceeding.

In this case, the district judge merely stated in effect that, once the forfeiture proceeding is concluded, either any funds that are forfeited or any funds that are returned to Mr. Lato will be made available for restitution. There is no indication that the trial judge attempted to assume jurisdiction over the money before the forfeiture proceeding was completed.

We therefore AFFIRM the district court's rulings on Lato's role in the offense and the restitution claim. We DISMISS Lato's JRAD claim.