UNITED STATES of America, Plaintiff-Appellee, v. Flavio DE MORAIS, Defendant-Appellant, 488 F. App'x 246

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 outcome of [his] sentencing was affected by the” the reliance on the PSR’s determination of restitution. Ameline, 409 F.3d at 1078. Because De Moráis does not challenge the calculations in the PSR, his sentence would not have been different if court had made its own factual findings, rather than relying on the PSR.

De Moráis challenged Bank of America’s eligibility to receive restitution at the district court and we review the district court’s decision for abuse of discretion. United States v. Lazarenko, 624 F.3d 1247, 1249 (9th Cir.2010). While De Moráis asserted that “there would probably be a truck load of evidence” that Bank of America was complicit in his fraud, he presented no such evidence. The district court was correct, and did not abuse its discretion, when it determined that De Moráis lacked a “factual basis” for his claim.

Finally, De Moráis has not presented any relevant evidence suggesting that he is entitled to discovery or an evidentiary hearing on Bank of America’s alleged complicity. See United States v. Abonce-Barrera, 257 F.3d 959, 970 (9th Cir.2001) (Brady discovery requires more than a “hunch” that exculpatory evidence exists). In fact, his plea agreement explicitly waives the right to further discovery. See United States v. Ruiz, 536 U.S. 622, 633, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (plea agreement can waive discovery of evidence relating to affirmative defenses). AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . See generally United States v. Tsosie, 639 F.3d 1213, 1217-18 (9th Cir.2011) (plea agreement provided insufficient notice to effectively waive right to appeal award of restitution)