United States of America v. RICHARD LEWIS ROSS, AKA Richard Ross

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD LEWIS ROSS, AKA
Richard Ross,
Defendant - Appellant.
No. 13-10158
D.C. No. 2:07-cr-00260-DGC-2
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted May 12, 2015
San Francisco, California
Before: KOZINSKI, PAEZ and CLIFTON, Circuit Judges.
1. Ross argues that restitution was inappropriate because this case involved
too many victims and required the “determin[ation] [of] complex issues of fact.”
18 U.S.C. § 3663A(c)(3). In his plea deal, Ross “specifically agree[d] to make
restitution to the victims in an amount to be determined at sentencing,” and waived
FILED
JUN 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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any right to appeal his sentence. While Ross may appeal the amount of restitution
awarded, see United States v. Tsosie, 639 F.3d 1213, 1218 (9th Cir. 2011), he has
knowingly waived his right to appeal the district court’s decision to award
restitution in the first place. Even if Ross did not waive his right to appeal the
district court’s decision to award restitution, the district court didn’t abuse its
discretion when it decided that 18 U.S.C. § 3663A(c)(3) did not preclude the
restitution award.
2. Ross claims there is a variety of inconsistencies in the spreadsheet the
district court relied on to calculate restitution. Because he failed to flag these
discrepancies below, we review for plain error. Even assuming that the
spreadsheet contains every transcription and computation error he alleges, Ross
fails to establish that these errors affect his substantial rights.
3. The district court’s methodology for computing restitution dramatically
understates victims’ losses. It doesn’t include interest, nor does it permit victims to
collect on CORF investments beyond the initial fee, even though such investments
were likely induced by CLS’s fraud.
Ross fails to show how the district court’s methodology is anything but
generous to him. That some victims may not have responded to the government’s

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questionnaire makes no difference, as additional responses could have only
resulted in a higher restitution amount. And, because Ross was a principal of
CLS’s fraudulent scheme, the district court reasonably concluded that Ross
proximately caused every victims’ CLS-related losses.
Any contributory negligence on the part of the victims is immaterial.
Because CLS sold a business plan nearly doomed to failure, it’s unlikely that any
individual investor’s acumen could have saved the business. Ross’s concerns that
victims may have understated their revenue from the CORFs and overstated their
additional investment in the CORFs are similarly inconsequential. Because few, if
any, victims realized a profit, the exact amounts of additional investment and
revenue are insignificant. The district court therefore did not abuse its discretion.
4. The district court’s restitution schedule isn’t an abuse of discretion. The
pre-sentencing report reveals Ross had enough to make the $25-per-quarter
payments while he was in prison. Ross can petition to adjust the schedule if his
circumstances materially change.
AFFIRMED.

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