UNITED STATES of America, Plaintiff-Appellee, v. Samuel L. RADOBENKO, aka Samuel Lawrence Radobenko, Defendant-Appellant, 510 F. App'x 534

MEMORANDUM The district court did not err when it found the amount of intended loss under a preponderance of the evidence standard because the loss amount was “based on the extent of the fraud conspiracy” for which Radobenko was convicted. United States v. Berger, 587 F.3d 1038, 1048 (9th Cir.2009). Nor did the court clearly err in finding an intended loss of $1.5 million. As Radobenko concedes, whether Rado-benko was actually capable of causing the amount of loss he intended is irrelevant. United States v. Robinson, 94 F.3d 1325, 1328 (9th Cir.1996); U.S.S.G. § 2B1.1 app. n. 3(A)(ii) (2011).

The district court did not commit plain error by imposing a three-level enhancement for Radobenko’s role as a manager or supervisor. The wiretap transcripts show that Radobenko referred to himself as the “top dog” in the fake investment operation and that he played the role of supervisor of at least one of his co-conspirators.

Other evidence in the record shows that Radobenko played a key role in negotiating and drafting the $500 million fraudulent investment contract, that he emailed this contract to the undercover agents for their signatures before he decided to terminate the scheme, and that he founded and owned Southwest Trust & Trade Company, the entity that was integral to the fraudulent scheme. The district court could infer from all this evidence, taken together, that Radobenko had a managerial or supervisorial role in the criminal scheme. AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.