UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 91-7322

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EDO-OGOHMWENSEMWEN IUEIORE LGHODARO,

Defendant-Appellant.

Appeal from the United States District Court

For the Northern District of Texas

(July 24, 1992)

Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:

Edo-Ogohmwensemwen Iueiore Lghodaro ("Lghodaro") pleaded

guilty to Count 9 of a twelve-count indictment charging him and his

brother, Oronsaye Rowland Lghodaro, with mail fraud and aiding and

abetting in violation of 18 U.S.C. § 1341. He was sentenced to 21

months imprisonment, three years supervised release, ordered to

make restitution in the amount of $1,757.24 a nd to pay a fine of

$7,316.76.

Between February and November of 199 0, Lghodaro and his

brother, using variations of Lghodaro's name, applied for and

received collision insurance with several different insurance2

companies on the same vehicle, a 1986 Peugeot. They filed false

collision damage claims on this car w ith several insurance

companies. Lghodaro eventually pleaded guilty to Count 9 of the

ind ictment which charged a false collision claim and insurance

payment made by Colonial Penn Insurance Company. Lghodaro applied

for and was approved for collision insurance with Colonial Penn for

his 1986 Peugeot on April 11, 1990 in the name of Eddie Lhodard.

On April 16, he filed a collision damage claim. Prosecution

materials reveal that he told Colonial Penn that he had an accident

with an unknown vehicle in Dallas when the vehicle attempted to

change lanes. He also told them that no police report was filed

and there were no witn esses to the accident. Based on this

collision damage claim, Colonial Penn mai led to "Ed Lghodard" an

insurance draft in the amount of $1,757.24. Lghodaro endorsed and

cashed the draft.

Lghodaro claimed the same damage to the Peugeot with several

insurance companies. Each claim stated that a police report was

not filed and that there were no witnesses to the accident.

Investigative material revealed that Lghodaro filed claims totaling

approximately $35,385.13. He received insurance settlement

payments totaling $9,074.45. Investigative material also revealed

that his brother filed claims totaling approximately $23,430.94 and

received payments of $17,889.67. Altogether, Lghodaro and his

brother filed false claims with insurance companies t otaling

$58,816.07, netting $26,964.12 in payments.

ISSUE 1: Amount of loss - conduct attributable to Lghodaro3

Lghodaro argues on appeal that the district court erred by

increasing his offense level five points based on a loss of

$58,816.07. He argues that the amounts attributable to his brother

should not have been attributed to him to determine the loss. He

contends that there was no evidence to show that the amounts of the

false claims made by his brother were reasonably foreseeable to

him.

In its Presen tencing Report (PSR), the probation office

recommended that five poi nts be added to Lghodaro's base offense

level pursuant to U.S.S.G. § 2F1.1(b)(1)(F) because the amount of

the loss was $58,816.07. Lghodaro objected to the increase,

arguing that he should not be held accountable for the claims filed

by his brother and that his offense level should only be increased

by two levels. The district court overruled his objection, finding

that Lghodaro and his brother were charged jointly with aiding and

abetting in a scheme or plan to defraud the insurance companies.

U.S.S.G. § 2F1.1(b)(1)(F) provides that if the los s is more

than $40,000 but less than $70,000, the offense level should be

increased by five points. Lghodaro filed claims for $35,385.13 and

his brother filed claims totaling $23,430.94.

Lghodaro can be held accountable for the amount of the claims

filed by his brother if the brother's conduct can be considered

"relevant conduct." Relevant conduct is used to determine the base

offense level and includes "all act s and omissions committed or

aided and abetted by the defendant, or for which the defendant

would be otherwise accountable, that occurred during the commission4

of the offense of conviction, in preparation for that offense, or

in the course of attempting t o avoid detection or responsibility

for that offense, or that otherwise were in furtherance of that

offense." U.S.S.G. § 1B1.3(a)(1). Application Note 1 to this

section states that "[i]n the case of criminal activity undertaken

in concert with others, whether or not charged as a conspiracy, the

conduct for which the defendant `would be otherwise accountable'

also includes conduct of others in furtherance of the execution of

the jointly-undertaken criminal activity that was reasonably

foreseeable by the defendant."

The district court found that Lghodaro's brother's conduct was

part of the joint scheme or plan which Lghodaro aided and abetted.

While the court did not expressly s tate that it found that the

brother's conduct was reasonably foreseeab l e to Lghodaro, the

meaning of the court's finding is clear.

This is exactly the type of factual scenario which the

sentencing commission had in mind when defining relevant conduct.

Illustration d. to § 1B1.3 describes a situation where two

defendants, working together, design and execute a fra u dulent

scheme. One defendant fraudulently obtains $20,000 and the other

defendant fraudulently obtains $35,000. Each defendant is

accountable for the entire $55,000 because they aided and abetted

each other in the fraudulent conduct and because the conduct of

each was in furtherance of the jointly undertaken criminal activity

and was reasonably forese eable. U.S.S.G. § 1B1.3, comment. (n.1

d.). The district court was not clearly erroneous in finding that5

Lghodaro was responsible for the entire $58,816.07. S ee U.S. v.

Patterson

, F.2d (5th Cir., May 21, 1992, No. 91-1377, slip

p. 4865-66) (where two brothers were inv olved in a conspiracy

involving stolen vehicles, defendant could have foreseen that as

part of joint enterprise, his brother would obtain other vehicles).

Lghodaro argues that the evidence was not sufficiently

reliable to support a finding tha t his brother's conduct was

reasonably foreseeable to him.

The PSR indicated that Lghodaro and his brother were acting

together in a scheme to defraud insurance companies. Although the

factual resume does not mention any actions taken by his brother,

Lghodaro pleaded guilty to Count 9 of the indictment, which charged

Lghodaro and his brother with devis ing a scheme to defraud

insurance companies. Count 9 incorporated the allegations of

concerted activity between the brothers outlined in the

introduction of the indictment.

Although Lghodaro argues that his brother's conduc t was not

reasonably foreseeable to him, he did not present any facts in the

district court to support his argument. He did not even deny

knowledge that his brother was filing other claims. His objections

were merely in the form of unsworn assertions, which are unreliable

and should not be considered. U .S. v. Sanders

, 942 F.2d 894, 897-

98 (5th Cir. 1991). The PSR is considered reliable and may be

considered as evidence by the trial judge in making factual

sentencing determinations. I d

. The evidence supporting the

finding that Lghodaro could reasonably foresee and therefore be6

held accountable for his brother's conduct was sufficiently

reliable.

ISSUE 2: Amount of loss - actual or intended loss

Lghodaro also complains that his offense level was determined

improperly based on the amount of the claims submitted to the

insurance companies instead of the actual amount paid out by the

companies. He argues that his offense level should have been based

on the $9,074.45 which he was actually paid by the insurance

companies which would have inc reased his offense level by two

points. Although he did not make this particular argument in the

district court, he did argue that his offense level should only be

raised by two points, presumably based on the $9,074.45 figure.

The commentary to § 2F1.1 states that "if an intended loss

that the defendant was attempting to inflic t can be determined,

this figure will be used if it is greater than th e actual loss."

U.S.S.G. § 2F1.1, comment. (n.7). Lghodaro seems to argue that

intended loss is only to be used if the actual loss is difficult to

determine. The use of intended loss is not so limited by the

application note.

In this case, the attempted or intended loss can easily be

determined based on the amounts of the false claims filed.

Lghodaro intended to cause a loss to the insurance companies in the

amount of $58,816.07, the total amount of false claims filed. The

fact that the insurance companies did not pay the entire amount

does not change that fact. The intended loss should be used, not

the actual loss.7

Although this Circuit has not yet addressed this issue, all of

the circuits which have discussed application note 7 to § 2F1.1

have reached the same concl usion. S ee U.S. v. Smith

, 951 F.2d

1164, 1166-69 (10th Cir. 1991); U.S. v. Kopp

, 951 F.2d 521, 535-36

(3rd Cir. 1991); U .S. v. Lohan

, 945 F.2d 1214, 1218-19 (2nd Cir.

1991); U.S. v. Schneider

, 930 F.2d 555, 558-59 (7th Cir. 1991);

U.S. v. Davis

, 922 F.2d 1385, 1391-92 (9th Cir. 1991); U.S. v.

Johnson

, 908 F.2d 396, 398 (8th Cir. 1990). The district court did

not clearly err in using the amount of intended loss rather than

the amount actually paid by the insurance companies.

ISSUE 3: Acceptance of responsibility

Lghodaro argues that t he district court erred in failing to

grant him a two-level reduction for acceptance of responsibility.

He argues that failure to make voluntary restitution is only one

factor to be considered in deciding whether a defendant has

accepted responsibility, and that this should not otherwise

outweigh his acceptance of responsibility for his criminal conduct.

The probation office recommended against the two-level

reduction for acceptance of responsibility. The PSR indicates that

although Lghodaro admitted his involvement in the offense, he had

made no attempt to make restitution. He had $10,065.06 in a bank

account which he transferred to an account in another bank in

another person's name. He was untruthful to the probation officer

about this money and about his prior criminal record. The

probation officer conclud ed that based on his untruthfulness and

his failure to pay restitution prior to the adjudication of guilt,8

he had not clearly demonstrated acceptance of responsibility. PSR,

¶¶ 9-11. Lghodaro objected to the PSR. PSR addendum, objections

## 1 and 3.

The district court found that he was not entitled to the twopoint reduction just because he pleaded guilty. The court noted

that Lghodaro had made no effort to repay the insurance companies,

that he had transferred funds that would have been available to

repay them to an account in someone else's name, and that he did

not give any assistance to the authorities in the recovery of the

money.

The Sentencing Guidelines provide that a two-level reduction

is wa rranted if the defendant clearly demonstrates a recognition

and affirmative acceptance of personal responsibility for his

criminal conduct. The defendant bears the burden of proving that

he is entitled to the downward adjustment. U .S. v. Kinder

, 946

F.2d 362, 367 (5th Cir. 1991), cert. denied

, 112 S.Ct. 1677 (1992).

This Court's review of the district court's ruling is even more

deferential than a pure clearly erroneous standard. Id

.

In determining whether a defendant qualif ies for the

reduction, a court may consider whether the defendant has

voluntarily paid restitution prior to adjudication of guilt,

whether has been truthful to the authorities, and whether he has

voluntarily assisted the authorities in the recovery of the fruits

of the offense. U.S.S.G. § 3E1.1, comment. n.1(b), (c), and (e).

The district court examin ed Lghodaro's conduct in light of these

three considerations and found that he had failed to meet his9

burden of proving that he had accepted responsibility. Based on

the facts as set forth in the PSR, the district court's finding was

not clearly erroneous.

AFFIRMED.