NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. TIEN TRUONG NGUYEN, Defendant-Appellant. No. 11-10406 D.C. No. 2:07-cr-164-MCE-1

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., Chief District Judge, Presiding Argued and Submitted October 8, 2013 San Francisco, California Before: N.R. SMITH and NGUYEN, Circuit J udges, and QUIST, Senior District Judge. ** Tien Nguyen appeals from the 151–month sentence imposed following his plea of guilty to conspiracy to commit computer fraud and acce ss device fraud, in violation of 18 U.S.C. § 371, access device fraud, in violation of 18 U.S.C. § 1029(a)(2), 

# FILED
OCT 25 2013 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

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

** The Honorable Gordon J. Quist, SeniorDistrict Judge for the U.S. District Court for the Western District of Michigan, sitting by designation.possession of more than 15 unauthorized acce ss devices, in violation of 18 U.S.C. § 1029(a)(3), aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1), and being a felon in possession of a firearm a nd ammunition, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291. We affirm. 1. Nguyen challenges his sentence under the Ex Post Facto Clause. “Ex post facto challenges are revi ewed de novo. However, an ex post facto claim raised for the first time on appeal is reviewed for plain error.” United States v. Chi Mak , 683 F.3d 1126, 1134 (9th Cir. 2012) (i nternal citations omitted). A district court properly applies the version of the Sentencing Guide lines in effect at the time of sentencing, unless doing so would violate the Ex Po st Facto Clause. U.S.S.G. §§ 1B1.11(a), (b)(1). In this case, the district court app lied the definition of “victim” in effect at the time of the offense, U.S.S.G. § 2B1.1 cmt. n.1 (2006), rather than the expanded definition in the 2010 Sentencing Guidelin es, U.S.S.G. § 2B1.1 cmt. n.4(E) (2010). Nguyen received the same se ntence he would have received under the Sentencing Guidelines in effect at the time of his offense. Accordingly, the sentence does not violate the Ex Post Facto Clause. 2. We reject Nguyen’s contention that the district court failed to comply with Federal Rule of Criminal Proced ure 32. We review this contention de novo
. United States v. Herrera-Rojas , 243 F.3d 1139, 1142 (9th Cir. 2001). “Although the
-2-district court’s findings under Rule 32(c) mu st be ‘express,’ they need only state the court’s resolution of the disputed issues.” United States v. Karterman , 60 F.3d 576, 583 (9th Cir. 1995) (quoting United States v. Rigby , 896 F.2d 392, 394 (9th Cir. 1990)). The district court made an express ruling on the record, overruling both parties’ objections to the presentence re port and adopting its factual findings. As such, the district court satisfied the requirements of Rule 32. See Fed. R. Civ. P. 32(i)(3)(B). 3. Finally, Nguyen objects to the sent ence enhancements applied by the district court. “We review the districtcourt’s interpretation of the sentencing guidelines de novo , its application of the guidelines to the facts of the case for abuse of discretion, and its factua l findings for clear error.” United States v. Zolp , 479 F.3d 715, 718 (9th Cir. 2007). The standard for finding facts at sentencing is a preponderance of the evidence. United States v. Showalter , 569 F.3d 1150, 1159 (9th Cir. 2009). The 20-level enhancement for amount of loss is supported by the record. For crimes involving stolen or counterfeit credits cards and access devices, loss may be calculated at $500 per access device, as the district court did. See U.S.S.G. § 2B1.1 cmt. n.3(F)(i) (2006), (2010). The distri ct court was required only to make a reasonable estimate of the loss, and was not required to take in to account Nguyen’s
-3-anticipated likelihood of success us ing access devices he obtained. See United States v. Yellowe , 24 F.3d 1110, 1111 (9th Cir. 1994). Because the court’s estimate was reasonable based on the number of access de vices in Nguyen’s possession, there was
no error. The victim impact statements, as well as Nguyen’s chat logs, provide sufficient evidence to demonstrate that at least 10 fi nancial institutions suffered actual loss. Thus, the district court did not err in applying a two-level enhancement for offenses involving 10 or more victims. See U.S.S.G. § 2B1.1(b)(2)(A)(i). The record demonstrates that Nguyen recruited and directed others in schemes to cash money orders and test counterfe it debit cards. Thus, there was sufficient evidence to establish that Nguyen was an or ganizer, leader, manager or supervisor in the conspiracy, and the district court di d not err in applying an aggravating role enhancement. See U.S.S.G. § 3B1.1(c). The judgment of the district court is AFFIRMED
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