NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

MOMOUD AREF ABAJI, 

Defendant-Appellant.

No. 22-50074 

D.C. No. 

8:13-cr-00001-DOC-1 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted August 24, 2023

Pasadena, California

Before: RAWLINSON and BRESS, Circuit Judges, and ZOUHARY,** District 

Judge.

Momoud Abaji challenges the district court’s imposition, on remand from this 

court, of a 20-level sentencing enhancement for losses exceeding $9.5 million, see 

U.S.S.G. § 2B1.1(b)(1)(K), and an order of restitution in the amount of $10,042,638. 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jack Zouhary, United States District Judge for the 

Northern District of Ohio, sitting by designation.

FILED

SEP 26 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

We have jurisdiction under 28 U.S.C. § 1291. We affirm.

1. The district court properly found the facts underlying Abaji’s loss 

enhancement by a preponderance of the evidence. While the government bears the 

burden of proof on the facts underlying a sentence enhancement, generally those 

facts need only be proven under the preponderance standard. United States v. 

Lonich, 23 F.4th 881, 910 (9th Cir. 2022). But when a sentencing enhancement has

“an extremely disproportionate impact on the sentence,” due process may require 

the underlying facts to be proven by clear and convincing evidence. Id. (quoting 

United States v. Valle, 940 F.3d 473, 479 (9th Cir. 2019)).

To determine whether a sentencing enhancement has an extremely 

disproportionate impact, we consider a set of non-exhaustive factors, sometimes 

referred to as the “Valensia factors.” See id. at 910–12 (citing United States v. 

Valensia, 222 F.3d 1173, 1182 (9th Cir. 2000)). The fourth Valensia factor proves 

central here. Under that factor, “if a defendant has already been convicted of certain 

conduct (whether through a jury verdict or a guilty plea), enhancements that are 

based on the conduct of conviction do not require proof by clear and convincing 

evidence.” Id. at 913. When the enhancement at issue is based on the extent of the 

conspiracy for which defendant was convicted, the fourth factor is dispositive and 

the preponderance of evidence standard applies. Id. at 914.

The jury in this case found Abaji guilty of conspiracy to commit wire fraud 
3 

and bank fraud. The scope of the conspiracy included the purchase of over 100 

condominium units and a series of fraudulent activities and kickbacks relating to 

those properties. Because the enhancement in this case was based on the scope of 

the conspiracy, and thus conduct for which Abasi was already convicted by a jury, 

the fourth Valencia factor dictates that a preponderance of the evidence standard 

should apply. See Lonich, 23 F.4th at 913–16.

This is not a case in which in which a “substantial amount” of acquitted 

conduct supported the loss calculation. Id. at 915. Abaji was acquitted on only one 

count of substantive wire fraud relating to one of the over one hundred properties 

involved in the fraudulent scheme. That loan accounted for only $126,000 of the 

approximately $12 million in Guideline losses found by the district court. Nor does 

this case involve a “substantial intermediate causation question” affecting the loss 

calculation. Id. For all these reasons, the district court properly applied a 

preponderance of the evidence standard in calculating loss for sentencing 

enhancement purposes.1

2. The district court used the proper formula to calculate the loss amount. 

“[I]n a mortgage fraud case, loss under U.S.S.G. § 2B1.1(b) is calculated in two 

steps.” United States v. Morris, 744 F.3d 1373, 1375 (9th Cir. 2014). First, the court 

1 Because the preponderance standard applies, there is no need to hold this 

case for en banc proceedings in United States v. Lucas, No. 22-50064.
4 

must “calculate the greater of actual or intended loss, where actual loss is the 

reasonably foreseeable pecuniary harm from the fraud. This amount will almost 

always be the entire value of the principal of the loan. . . .” Id. Second, the court 

must “deduct from the initial measure of loss any amount recovered or recoverable 

by the creditor from the sale of the collateral.” Id. The final loss number should not 

include “[i]nterest of any kind, finance charges, late fees, penalties, amounts based 

on an agreed-upon return or rate of return, or other similar costs.” U.S.S.G. § 2B1.1 

cmt. n.3(D)(i).

On remand, the district court consulted the government’s schedules, which 

took the principal loan amount for the properties and subtracted the amount 

recovered on resale. Those figures were obtained using bank records or publicly 

available property records. The final loss amount included only properties that had 

been sold, while excluding those where resale data was unavailable and also 

excluding any transaction costs. The district court correctly applied Morris. See 

United States v. Hymas, 780 F.3d 1285, 1293 (9th Cir. 2015) (“We conclude that the 

district court correctly calculated the losses by taking the principal amount of the 

loan and subtracting any credits from the subsequent sale of the property.”). Finally, 

while Abaji contends that his co-defendant Khatib was sentenced using a lower loss 

amount, Khatib was sentenced pursuant to a loss calculation based on an earlier 

assessment of loss that was included in a plea agreement.
5 

3. Whether we review de novo or for plain error, Abaji has not established 

error in the district court’s restitution order. “The Mandatory Victims Restitution 

Act requires that defendants be ordered to pay restitution to any victim ‘directly and 

proximately harmed as a result of the commission of an offense.’” Id. (citing 18 

U.S.C. § 3663A(a)(2)). Here, the district court determined the amount of restitution 

using the actual loss calculations that Agent Campbell made using victim reports. 

Our previous decision remanding for resentencing did not address the validity of the 

restitution order. Thus, the district court’s calculation does not violate the law of the 

case.

While Abaji believes it is improper to include interest and indemnity 

payments when calculating restitution under the MVRA, our case law indicates 

otherwise. See United States v. Yeung, 672 F.3d 594, 601 (9th Cir. 2012), abrogated 

on other grounds by Robers v. United States, 572 U.S. 639 (2014); United States v. 

Catherine, 55 F.3d 1462, 1465 (9th Cir. 1995). Abaji’s challenge fails.

4. The judgment form wrongly states under “Finding” that Abaji was 

convicted on all counts, even as it later indicates he was acquitted on Count 4. The 

district court on remand should amend the form to clearly indicate the acquittal on 

Count 4.

SENTENCE AFFIRMED; CASE REMANDED FOR CORRECTION 

OF JUDGMENT FORM.