United States v. Victor Igboanugo

MEMORANDUM

Defendant-Appellant Victor Igboanugo was indicted on charges of mail and wire fraud involving a “secret shopper” scheme and a separate “lottery scheme.” He pled guilty to three counts involving only the “secret shopper” scheme; the other counts were dismissed. At sentencing, the district court rejected all of Igboanugo’s objections to the Sentencing Guidelines calculations. He now appeals (1) the loss calculation; (2) the Government’s withholding of a motion for an additional 1-level offense level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(b); and (3) the application of the vulnerable victim enhancement.

On the present record, the district court clearly erred in adopting the Presen-tence Report’s (“PSR”) loss calculation. As the Government concedes, the loss calculation includes losses attributable to the lottery scheme as well the secret shopper scheme—despite the fact that Igboanugo never admitted to taking part in the lottery scheme, the charges for which were dropped. Although a district court may consider uncharged conduct as “relevant conduct” for purposes of loss calculation, see United States v. May, 706 F.3d 1209, 1212-13 (9th…