United States v. Giwa

15 F. App'x 546

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 2, 2001
• Docket: No. 00-10364; D.C. No. CR-99-00132-DWH
• Status: Published

Opinion

MEMORANDUM

**

The district court did not clearly err¹ in determining that the losses associated with some of the TRW reports and Giwa’s arrests in Hawaii and California constituted relevant conduct. Nor was it error for the district court not to apply Section 2Xl.l’s² three-level decrease. That section applies to attempted offenses, and Giwa’s offenses were complete when he fraudulently obtained the cards and information through the mail.³ We vacate Giwa’s sentence and remand, however, because we hold that a preponderance of the evidence⁴ does not support the district court’s conclusion that Giwa attempted to buy two, rather than one, Rolex watches in Hawaii. Because $23,427 of the district court’s actual and attempted loss figure is not adequately supported, the court should remove this amount from the total actual and attempted loss figure and resentence Giwa accordingly.

VACATED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1 . United States v. Hahn, 960 F.2d 903, 907 (9th Cir.1992).

2 . United States Sentencing Commission, Guidelines Manual, § 2X1.1.

3 . See United States v. Blitz, 151 F.3d 1002, 1011 (9th Cir.1998).

4 . See United States v. Scheele, 231 F.3d 492, 497 (9th Cir.2000) ("The district court’s factual findings in the sentencing phase are reviewed for clear error, but must be supported by a preponderance of the evidence.”).