NOT FOR PUBLICATION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 

court’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, CLERK

U.S. COURT OF APPEALS
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Internal Revenue Service (“IRS”) and was convicted after a jury trial of one count 

of Conspiracy to Defraud 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 convincing 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 instructed 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 that 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 error 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 district 
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court’s use of “intended loss” was both correct and consistent with the general 

fraud guidelines, U.S.S.G. § 2B1.1. Additionally, the court was not required to 

make its findings based on an elevated clear and convincing evidence standard in 

this conspiracy case. See United States v. Barragan, 871 F.3d 689, 717-19 (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, restitution is not a question that is subject to the protections of 

Apprendi. United States v. Green, 722 F.3d 1146, 1149-50 (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 in 

its restitution order. 

AFFIRMED.