United States v. Flavio De Morais

MEMORANDUM

Flavio De Morías entered into an agreement to plead guilty to one count of mail fraud on August 5, 2010. The district court awarded $161,149 in restitution to Bank of America. De Moráis appeals this award of restitution. We affirm.

We do not decide whether De Moráis waived his right to appeal the restitution order, for even if the plea agreement did not waive his right to appeal, we affirm the sentence.

Because De Moráis challenges for the first time on appeal the sufficiency of the evidence supporting the amount of restitution owed this challenge is subject to plain error review. United States v. Bright, 358 F.3d 1114, 1120 (9th Cir.2004). The district court properly relied on the uncontested presentence report to determine the amount of restitution owed by De Moráis. Fed.R.Crim.P. 32(i)(3)(A) (“At sentencing, the court: may accept any undisputed portion of the presentence report as a finding of fact.”); United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir.2005) (en banc). Moreover, even if the district court did err, De Moráis would not prevail under plain error review because he has not shown that “the error affected [his] substantial rights, that is, [that] the…