NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. RODRIGO PABLO LOZANO, AKA El Profe , AKA Paul Lozano, AKA Rodrigo Lozano, AKA Rodrigo Paul Lozano,

Defendant

- Appellant. No. 17

- 50127
D.C. No. 2:13

- cr - 00675

- PSG

- 1

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding Argued and Submitted April 12, 2019 Pasadena, California Before: PAEZ and CLIFTON, Circuit Judges, and ENGLAND, ** District Judge. Defendant Rodrigo Pablo Lozano (“Defendant”) appeals from the district

cou rt ’s trial and sentencing

- related decisions

. Defendant , an experienced tax

preparer, submitted thousands of fraudulent federal income tax returns to the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Morrison C. England, Jr., United States District Judge for the Eastern District of California, sitting by designation. 

# FILED

APR 29 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Internal Revenue Service (“IRS”) and was convicted after a jury trial of one count of Conspiracy to De fraud the United States with Respect to Claims in violation of 18 U.S.C. § 286. Defendant argues on appeal that the district court made the following errors during trial and in its sentencing guideline calculations : giving the jury a “deliberate avoidance ” instruction when Defendant was only charged with conspiracy; calculating the applicable sentencing guidelines based on “intended” as opposed to “actual” loss; making that calculation based on a preponderance of the evidence rather than by clear and convi ncing evidence; and ordering restitution without the benefit of a jury finding , as purportedly required by Apprendi v. New Jersey , 530 U.S. 466 (2000). We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291 , and we affirm.
1. The district court permissibly instruct ed the jury on deliberate
avoidance. United States v. Ramos

- Atondo , 732 F.3d 1113 , 1120 (9th Cir. 2013) ; United States v. Nicholson , 677 F.2d 706, 710

- 11 (9th Cir. 1982). Defendant points to no clearly irreconcilable intervening authority t hat would allow this Court to disregard that binding case law. See Miller v. Gammie , 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Nor has Defendant identified any err or in the form of the instruction, which derives from this circuit’s pattern instruction. Accordingly, no instructional error infected the jury’s decision.
2. Given the plain language of U.S.S.G. §§ 2T1.4 and 2T1.1, the district3

court’s use of “intended loss” was both correct and consistent with the general fraud guidelines, U.S.S.G. § 2B1.1. Additionally, t he c ourt was not required to make its findings based on an elevated clear and convincing evidence standard in this conspiracy case. See United Stat es v. Barragan , 871 F.3d 689, 717

- 1 9 (9th Cir. 2017) ; United States v. Treadwell , 593 F.3d 990, 1001 (9th Cir. 2010) . The district court’s guidelines calculations were thus proper.
3. Finally, r estitution is not a question that is subject to the protectio ns of Apprendi

. United States v. Green , 722 F.3d 1146, 11 49

- 50 (9th Cir. 2013). And again, Defendant fails to point to any clearly irreconcilable intervening authority that compels a conclusion to the contrary. The district court therefore did not err i n its restitution order.
AFFIRMED.