FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                     Nos. 96-50037
Plaintiff-Appellee,                           96-50038
                                              96-50039
v.
                                              96-50040
JUSTIN TANNER PETERSEN,
                                              D.C. Nos.
Defendant-Appellant.
                                              CR-91-00956-SVW
                                              CR-91-00995-SVW
                                              CR-92-00575-SVW
                                              CR-95-00214-SVW

                                              OPINION

Appeals from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding

Argued and Submitted June 4, 1996--Pasadena, California

Filed October 22, 1996

Before: Betty B. Fletcher, Robert R. Beezer, and
Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Fletcher

_________________________________________________________________

SUMMARY 



_________________________________________________________________






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_________________________________________________________________

COUNSEL

Jay L. Lichtman, Los Angeles, California, for the defendant-
appellant.

David J. Schindler, George S. Cardona, Assistant United
States Attorneys, Los Angeles, California, for the plaintiff-
appellee.

                                13906


OPINION

FLETCHER, Circuit Judge:

Defendant Justin Tanner Petersen appeals from the sen-
tence imposed after his plea of guilty to charges of computer
fraud, conspiracy to commit computer fraud and wire fraud,
and interception of wire and electronic communications in
four separate cases consolidated for sentencing. Petersen chal-
lenges the district court's (1) two-level upward adjustment for
use of a special skill based upon his computer skills; (2) two-
level upward adjustment for obstruction of justice; (3) failure
to reduce the offense level on the grounds that one of the
frauds was merely an attempt; and (4) ordering of restitution
in the amount of $40,000. We have jurisdiction under 28
U.S.C. S 1291 and affirm.

I

On July 20, 1992, Petersen pled guilty in three criminal
cases. In CR 91-00995-SVW, he pled guilty to count one of
an eight count indictment for computer fraud in violation of
18 U.S.C. S 1030(a)(2). The indictment charged that between
February 11, 1991 and April 21, 1991, he gained unauthorized
access to computers of TRW Information Services, a con-
sumer credit reporting agency. The evidence at sentencing
showed that Petersen, then in Texas, engaged in credit card
fraud by electromagnetically encoding credit cards and 
"hacking" into credit reporting services to obtain information
which he used to order fraudulent credit cards. He then made
charges on the fraudulent credit cards.

_________________________________________________________________
1 Essentially, hacking is the ability to bypass computer security protocols
and gain access to computer systems.

                                13907




In CR 92-00575-SVW, Petersen pled guilty to all counts of
a four-count information. Count one charged Petersen with
conspiracy to gain unauthorized access to a federal interest
computer system to carry out a scheme to defraud and to
intercept wire and electronic communications in violation of
18 U.S.C. SS 371, 1030(a)(4) and 2511. Count two charged
Petersen with interception of wire, oral and electronic com-
munications in violation of 18 U.S.C. S 2511. Counts three
and four charged Petersen with unauthorized access to a fed-
eral interest computer system in violation of 18 U.S.C.
S 1030(a)(4). With respect to the last count, the evidence at
sentencing showed that on September 28, 1989, Petersen
gained unauthorized access to the computers of Pacific Bell
to facilitate intercepting and seizing the telephone lines of
radio station KPWR FM. Petersen's confederates Kevin Lee
Poulsen and Ronald Mark Austin had discovered a computer
program which could be manipulated to "rig" radio station
promotional contests by seizing control of the telephone lines
leading to the radio station to ensure that they were the correct
caller to win various prizes. They advised Petersen of this
scheme, and Petersen used the information to call the radio
station and "win" a $10,000 cash prize. Poulsen and Austin
"won" at least two Porsche automobiles, a $20,000 cash prize,
a $10,000 cash prize, and two trips to Hawaii.

Petersen was arrested in Dallas, Texas in or about June
1991 and agreed to be debriefed regarding his criminal activi-
ties. He entered into a plea agreement requiring his coopera-
tion and assistance to law enforcement and was transported to
the Central District of California. There he was released on

                                13908


bail in order to assist the FBI. After Petersen pled guilty to the
above charges, sentencing was continued by stipulation sev-
eral times in order to permit Petersen's cooperation.

Petersen engaged in extensive assistance for the govern-
ment while on bail. The FBI rented him an apartment with
computers, phone lines, and pagers. Among other things,
Petersen helped seize Poulsen's computer, resulting in evi-
dence used to convict Poulsen, and helped gather evidence
against Austin, who was ultimately prosecuted and convicted.

In October 1993, the FBI received information suggesting
that Petersen had engaged in additional criminal activity while
on bail. The United States met with Petersen and his counsel
to confront them with the allegations. Petersen admitted com-
mitting additional acts of credit card fraud while on bail. Dur-
ing a recess, Petersen fled. A bench warrant was issued for his
arrest.

On January 24, 1994, counsel appeared before the district
court. Petersen remained a fugitive. The court took the sen-
tencing date off calendar pending Petersen's capture or self-
surrender.

While a fugitive, Petersen hacked into the computers of
Heller Financial and obtained the codes necessary to effectu-
ate a wire transfer from Heller to another bank account. On
August 17, 1994, Petersen called in two bomb threats to
Heller as a distraction. While the building was evacuated, he
executed a $150,000 wire transfer from Heller through Mel-
lon Bank into an account at Union Bank. The next day Heller
discovered the transfer and managed to seize the $150,000
before it was removed from Union Bank.

On August 29, 1994, Petersen was captured. On March 27,
1995 he pled guilty to both counts of a two count information
based on the crimes he committed while on bail. CR 95-
00214-SVW. Count one charged conspiracy to commit com-

                                13909


puter fraud and wire fraud in violation of 18 U.S.C.SS 371,
1030(a)(4) and 1343. Count two charged Petersen with know-
ingly possessing fifteen or more unauthorized access devices
(i.e., computer passwords) that were stolen and obtained with
the intent to defraud in violation of 18 U.S.C.S 1029(a).

The four cases were consolidated for sentencing. On
November 27, 1995, the district court sentenced Petersen to
a total period of incarceration of 41 months, a three year term
of supervised release, and restitution in the amount of approx-
imately $40,000.2 The sentence was based on an adjusted
offense level of 18 and a criminal history category of III
resulting in a guidelines range of 33-41 months. The adjusted
offense level was calculated as follows: Base offense level
under U.S.S.G. S 2F1.13 (Fraud and Deceit; Forgery; Offenses
Involving Altered or Counterfeit Instruments) [6 points]; loss
of more than $200,000 under S 2F1.1(b)(1)[8 points]; more
than minimal planning under S 2F1.1(b)(2)[2 points]; use of
a special skill under S 3B1.3 [2 points]; obstruction of justice
under S 3C1.1 [2 points]; committing offense while on bail
under S 2J1.7 [3 points]; acceptance of responsibility under
S 3E1.1(a) [minus 3 points]; and substantial assistance down-
ward departure under S 5K1.1 [minus 2 points].

II

The district court's factual findings at sentencing are
reviewed for clear error. United States v. Fuentes-Mendoza,
56 F.3d 1113, 1116 (9th Cir.), cert. denied, 116 S. Ct. 326
(1995); 18 U.S.C. S 3742(e).
_________________________________________________________________
2 The court imposed 35 months on each of the convictions under CR 95-
00214, CR 92-00575, and 91-00956, and 12 months on CR 91-00995, all
of which were to be served concurrently. The court also imposed a 6-
month period of incarceration pursuant to 18 U.S.C.S 3147 in light of the
crimes committed while Petersen was on bail, to be served consecutive to
the sentences on the other counts.
3 Petersen was sentenced under the 1994 Sentencing Guidelines.

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       The district court's application of the Sentencing
       Guidelines to the facts is reviewed for an abuse of
       discretion. The district court's interpretation of the
       Guidelines, as a question of law, . . . is not entitled
       to deference, though "[l]ittle turns on whether we
       label review of this particular question abuse of dis-
       cretion or de novo, for . . . [a] district court by defini-
       tion abuses its discretion when it makes an error of
       law."

United States v. Willett, 90 F.3d 404, 406 (9th Cir. 1996)
(internal citation omitted) (alteration in original) (quoting
Koon v. United States, 116 S. Ct. 2035, 2047 (1996) (holding
that a district court's departure from the Guidelines is
reviewed for an abuse of discretion)); see also 18 U.S.C.
S 3742(e) ("court of appeals shall give . .. due deference to
the district court's application of the guidelines to the facts").

III

A. Special Skill Adjustment

The district court imposed a two-level upward adjustment
under U.S.S.G. S 3B1.3 for "use[  ] [of] a special skill."
Although Petersen has not had formal training in computers,
the district court reasoned that he "obviously has an extraordi-
nary knowledge of how computers work and how information
is stored, how information is retrieved, and how the security
of those systems can be preserved or invaded" and that "even
if he can't create programs, he could certainly work in the
security end of the computer business." On the basis of these
findings, the district court determined that Petersen's com-
puter abilities constituted a special skill within the meaning of
S 3B1.3.4
_________________________________________________________________
4 This court appears not to have directly addressed what standard of
review we apply to a district court's determination that a defendant used
a special skill within the scope of S 3B1.3, instead reciting that we review

                                13911


[1] Section 3B1.3 provides that the district court may
enhance the defendant's offense level if he "abused a position
of public or private trust, or used a special skill, in a manner
that significantly facilitated the commission or concealment
of the offense." U.S.S.G. S 3B1.3. The phrase "special skill"
is defined as "a skill not possessed by members of the general
public and usually requiring substantial education, training or
licensing. Examples would include pilots, lawyers, doctors,
accountants, chemists, and demolition experts." Id. comment.
(applic. note 2). The "adjustment applies to persons who
abuse their positions of trust or their special skills to facilitate
significantly the commission or concealment of a crime. Such
persons generally are viewed as more culpable." Id. comment.
(backgr'd).

We have construed S 3B1.3 as requiring that the defendant
employ a "pre-existing, legitimate skill not possessed by the
general public" in the commission or concealment of the
crime. United States v. Green, 962 F.2d 938, 944 (9th Cir.
1992) (quoting United States v. Young, 932 F.2d 1510, 1513
(D.C. Cir. 1991)). "[T]he Guideline's use of the word `facili-
_________________________________________________________________
factual determinations for clear error and legal interpretations de novo.
See, e.g., United States v. Mainard, 5 F.3d 404, 405 (9th Cir. 1993). The
Supreme Court's decision in Koon, although directly addressing only
departures from the Guidelines (as opposed to adjustments or enhance-
ments to the base offense level under the Guidelines), is nevertheless
instructive. Because a district court's determination that a defendant's par-
ticular abilities constitute a "special skill " is essentially a matter of
"application of the guidelines to the facts," due deference is warranted.
See Koon, 116 S. Ct. at 2046 (quoting 18 U.S.C.S 3742(e)). The answer
is apt to vary depending on, for instance, factual matters such as the extent
of education or training received and the level of skill enjoyed. This sug-
gests that an abuse of discretion standard should guide our review. See id.
To be sure, questions of law may arise in deciding whether a defendant
used a special skill under S 3B1.3, to which we need not defer to the dis-
trict court's resolution. See id. at 2047. Regardless of how we characterize
the standard of review, however, we conclude that the district court did not
err in adjusting Petersen's offense level for use of a special skill.

                                13912


tated' implies that an enhancement for use of a special skill
under section 3B1.3 should apply if the special skill made it
significantly easier for the defendant to commit or conceal the
crime." Mainard, 5 F.3d at 405. We have rejected application
of S 3B1.3 "merely because the offense was difficult to com-
mit or required a special skill to complete." Green, 962 F.2d
at 944.

[2] We conclude that the district court did not err in deter-
mining that Petersen's computer abilities support a special
skill enhancement. As the district court found, Petersen is
skilled at accessing and manipulating computer systems.
These skills are of a high level and not possessed by members
of the general public. Although the Guidelines provide that
special skills "usually" require substantial education, training
or licensing, U.S.S.G. S 3B1.3 comment. (applic. note 2),
such education, training or licensing is not an absolute prereq-
uisite for a special skill adjustment. See United States v.
Lavin, 27 F.3d 40, 41 (2d Cir.), cert. denied, 115 S. Ct. 453
(1994). Despite Petersen's lack of software training or licens-
ing, his sophisticated computer skills reasonably can be
equated to the skills possessed by pilots, lawyers, chemists,
and demolition experts for purposes of S 3B1.3. See United
States v. Mendoza, 78 F.3d 460, 465 (9th Cir. 1996) (defen-
dant's ability to drive an 18-wheeler without any reported
mishap over several years warrants a special skill adjustment
under S 3B1.3); United States v. Malgoza, 2 F.3d 1107, 1111
(11th Cir. 1993) (defendant's advanced level of radio operat-
ing ability constitutes a special skill); cf. United States v. Har-
per, 33 F.3d 1143, 1151 (9th Cir. 1994), cert. denied, 115 S.
Ct. 917 (1995) (defendant's knowledge of ATM systems
gained through her employment with an ATM service com-
pany and bank does not warrant a special skill adjustment).5
_________________________________________________________________
5 We do not intend to suggest that the ability to use or access computers
would support a "special skill" adjustment under all circumstances. Com-
puter skills cover a wide spectrum of ability. Only where a defendant's
computer skills are particularly sophisticated do they correspond to the

                                13913


[3] Petersen clearly "used" his computer skills in the com-
mission of the crimes to which he pled guilty. By enabling
him to break into sophisticated computer systems, place wire
taps on phones, and transfer large sums of money between
banks, Petersen's computer skills "facilitated " his ability to
commit the series of crimes. See Mainard, 5 F.3d at 405
(quoting S 3B1.3). And, at least by the time he committed
computer and wire fraud while on bail, Petersen's computer
skills "pre-exist[ed]" the commission of the crimes. See
Green, 962 F.2d at 944.

[4] It is a closer question whether Petersen's computer abil-
ities constitute "legitimate" skills within the meaning of
S 3B1.3. See id., 962 F.2d at 944. While the district court
properly concluded that Petersen's computer hacking skills
could be transferred to legitimate use in the future, such as
work in the security end of the computer industry, that does
not necessarily mean that Petersen possessed a preexisting
legitimate skill. The Background Note's explanation that peo-
ple who abuse their special skills are subject to an upward
adjustment because they are generally viewed as more culpa-
ble suggests an intent to apply the adjustment to someone
such as an experienced, successful computer programmer who
turns to crime rather than, say, a thief who might be able to
transfer his knowledge of alarm systems to legitimate work as
a security expert in the future. Cf. Young, 932 F.2d at 1514
("Nothing in the commentary suggests that S 3B1.3 applies to
a criminal who . . . bones up on the tricks of his trade and
becomes adept at committing a crime that the general public
does not know how to commit."). Petersen's self-taught com-
_________________________________________________________________
Sentencing Commission's examples of "special skills"--lawyer, doctor,
pilot, etc. Cf. Green, 962 F.2d at 945 (defendant's photography skills did
not constitute special skills, as defendant was not a professional photogra-
pher and record did not indicate that he had any greater photography skills
than the general public). Courts should be particularly cautious in impos-
ing special skills adjustments where substantial education, training or
licensing is not involved.

                                13914


puter knowledge was not the result of "special societal invest-
ment and encouragement [that] allows a person to acquire
skills that are then held in a kind of trust for all of us."
Mainard, 5 F.3d at 406. But a special skill also may be
acquired without social investment, a skill that enables one to
victimize others more effectively than one who does not pos-
sess the skill, so a greater deterrent may be needed to discour-
age its use for abuse. Also, Petersen apparently did use his
computer skills in working for a private investigation agency
in the 1980s and defense counsel acknowledged that his client
had counseled companies while on bail on how "to make their
computer system safe from other hackers." Petersen urged the
court, and the court agreed, not to forbid Petersen from using
computers in the context of his future employment. This sug-
gests that Petersen could have used his computer skills for
legal, socially beneficial activity. See Young, 932 F.2d at
1514. Instead, he abused his knowledge of technology and his
ability to access and manipulate computer systems, enabling
him to commit serious crimes.

Petersen is skilled at accessing and manipulating computer
systems; this skill is not shared by members of the general
public; the skill facilitated his carrying out a series of crimes;
it preexisted his carrying out the crimes; and it is translatable
(and had been translated) to legitimate use. Accordingly, the
district court did not err in adjusting Petersen's offense level
under S 3B1.3 for use of a special skill.

B. Obstruction of Justice 

The district court imposed a two-level upward adjustment
for obstruction of justice under U.S.S.G. S 3C1.1. The court
found that Petersen absconded while on bail, knew that he
was supposed to return for sentencing, wilfully failed to
return, and thereby delayed sentencing. On the basis of these
findings, the court determined that Petersen obstructed justice.6
_________________________________________________________________
6 We have held that the district court's determination that a defendant
obstructed justice under S 3C1.1 generally is a factual finding reviewed for

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[5] Section 3C1.1 provides for a two level increase in the
applicable offense level "[i]f the defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the investigation, prosecution,
or sentencing of the instant offense." U.S.S.G.S 3C1.1. One
example of the type of conduct to which the enhancement
applies is "escaping or attempting to escape from custody
before trial or sentencing; or willfully failing to appear, as
ordered, for a judicial proceeding." Id. comment. (applic. note
3(e)). One example of the type of conduct that does not war-
rant application of the enhancement is "avoiding or fleeing
from arrest." Id. comment. (applic. note 4(d)).

[6] At a hearing held October 18, 1993, the district court
continued Petersen's sentencing until January 24, 1994. When
queried by the district court, Petersen's counsel stated that his
client agreed to (and therefore knew about) the continuance.
Yet Petersen failed to attend the January 24, 1994 sentencing
hearing. Counsel for the United States represented that Peter-
sen had been in contact with him and knew he had to appear.
Under these circumstances, the district court properly con-
cluded that Petersen "willfully failing to appear, as ordered,
for a judicial proceeding" within the meaning ofS 3C1.1.

[7] Petersen's absconding while on bail after conviction
and before sentencing also supports the obstruction of justice
enhancement. While mere flight during the investigation of a
crime does not warrant enhancement, United States v. Stites,
56 F.3d 1020, 1026 (9th Cir. 1995), cert. denied, 116 S. Ct.
967 (1996), this court has upheld enhancement where the
_________________________________________________________________
clear error. United States v. Mondello, 927 F.2d 1463, 1465 (9th Cir.
1991). The inquiry involves the district court's application of the guideline
to the facts, to which "due deference" is given. See Koon, 116 S. Ct. at
2044; 18 U.S.C. S 3742(e). Regardless of whether we characterize our
review as for clear error, for an abuse of discretion, or as otherwise involv-
ing deference to the district court, we conclude that the district court did
not err.

                                13916


defendant had already been arrested for the offense, was told
he was a suspect in a criminal case, and "knew he was
expected to surrender himself voluntarily." Mondello, 927
F.2d at 1467. Petersen had not only been arrested but had also
been convicted at the time he fled. See United States v.
Shinder, 8 F.3d 633, 635 (8th Cir. 1993) (holding that defen-
dant's flight while on bond after her conviction and prior to
sentencing was sufficient ground to find that she had
obstructed justice). Throughout the ten months that Petersen
was a fugitive, he was in contact with law enforcement offi-
cers who informed him that a warrant was outstanding for his
arrest.

The district court properly concluded that Petersen's
absconding between conviction and sentencing and failing to
appear for a scheduled sentencing hearing warranted a two-
level upward adjustment for obstruction of justice.

C. Attempt/Conspiracy Reduction

[8] Petersen challenges the district court's refusal to reduce
his offense level pursuant to U.S.S.G. S 2X1.1. In case No.
CR 95-00214, Petersen pled guilty to conspiracy to commit
computer and wire fraud in relation to a scheme to wire trans-
fer money from Heller Financial to another financial institu-
tion. He contends that the execution of the scheme to defraud
Heller Financial amounted solely to an attempt or conspiracy,
thereby entitling him to a three-point reduction in his offense
level under S 2X1.1. The district court concluded that "this is
a case where the offense was substantially completed." The
court found that "everything had been done" and Petersen's
receipt of the money transferred from Heller "had been
impeded by a third party." Accordingly, the court declined to
reduce the offense level.

Section 2X1.1(b) provides, in relevant part, as follows:

       If an attempt [or conspiracy], decrease by 3 levels,
       unless the defendant completed all the acts the

                                13917


       defendant believed necessary for successful comple-
       tion of the substantive offense or the circumstances
       demonstrate that the defendant [or the conspirators]
       was about to complete all such acts but for the appre-
       hension or interruption by some similar event
       beyond the defendant's [or the conspirators'] con-
       trol.

The Background Note to S 2X1.1 states:

       In most prosecutions for conspiracies or attempts,
       the substantive offense was substantially completed
       or was interrupted or prevented on the verge of com-
       pletion by the intercession of law enforcement
       authorities or the victim. In such cases, no reduction
       of the offense level is warranted. Sometimes, how-
       ever, the arrest occurs well before the defendant or
       any co-conspirator has completed the acts necessary
       for the substantive offense. Under such circum-
       stances, a reduction of 3 levels is provided under
       S 2X1.1(b)(1) or (2).

Petersen wiretapped a Telenet telephone line and acquired
the necessary passwords to execute a wire transfer. He then
executed a $150,000 wire transfer from Heller Financial to
Union Bank. The scheme was detected by Heller Financial the
next day; Heller notified Union Bank and managed to seize
the $150,000 before it could be withdrawn by Petersen or his
coconspirators.

[9] Because Petersen had already executed the fraudulent
wire transfer, we agree with the district court that "the sub-
stantive offense was substantially completed." U.S.S.G.
S 2X1.1 comment. (backgr'd). To the extent steps remained to
be done, the fraud was "interrupted or prevented on the verge
of completion by the intercession of . . . the victim," Heller
Financial. Id. Accordingly, the district court properly declined
to reduce the offense level. Cf. United States v. Yellowe, 24

                                13918


F.3d 1110, 1113 (9th Cir. 1994) (Defendant was not entitled
to a reduction under S 2X1.1 where he "had the unauthorized
access devices and was about to use them to make charges
and get money. . . . Only two things stopped him: being
arrested, and the fact that the terminals were not connected to
a bank.").

D. Restitution

[10] As part of Petersen's sentence, the district court
imposed restitution under the Victim and Witness Protection
Act, 18 U.S.C. S 3663, in the amount of $40,000 to certain
aggrieved entities and persons.7 At the time of sentencing,
Petersen had no assets or income and had unsecured debt in
the amount of $19,100. The district court found, however, that
Petersen had strong computer skills, was "articulate . . . gutsy,
smart, resourceful, creative," and "probably could be a pretty
successful, productive person" in the future. Petersen is young
and has demonstrated an ability to earn money in the past as
a concert promoter, sound engineer, and working for a private
investigation company. At Petersen's urging, the district court
permitted Petersen to obtain future employment relating to the
use of computers, provided he obtained permission from his
probation officer. Petersen indicated that he believed he could
seek employment as a computer security consultant. The dis-
trict court may order an indigent defendant to pay restitution
provided there is sufficient evidence in the record demonstrat-
ing that he will have a future ability to make restitution.
Sarno, 73 F.3d at 1503; United States v. Ramilo, 986 F.2d
333, 336 n.5 (9th Cir. 1993). Although Petersen could con-
ceivably have some difficulties in obtaining employment due
to his felony convictions, there is certainly a reasonable possi-
bility that he will be able to pay restitution in the amount of
_________________________________________________________________
7 We review district court restitution orders for an abuse of discretion
and the factual findings supporting such orders for clear error. United
States v. Sarno, 73 F.3d 1470, 1503 (9th Cir. 1995), cert. denied, 116 S.
Ct. 2554 (1996).

                                13919


$40,000. Cf. Ramilo, 986 F.2d at 337 (vacating imposition of
restitution in the amount of $454,841.97, due three years after
defendant's completion of prison sentence, because there was
no realistic possibility defendant could pay such a sum).
Because there is "some evidence the defendant may be able
to pay the amount fixed when required to do so," id. at 335,
the district court did not abuse its discretion in imposing resti-
tution.

Petersen contends, however, that as part of his plea agree-
ments, he was required to assign his future earnings to the
government, undermining his ability to pay restitution. We
see nothing in the plea agreement suggesting that Petersen has
agreed to turn over his future income to the government. To
the contrary, the plea agreement states that "[b]y signing this
agreement, you [Petersen] agree to pay restitution for the full
loss caused by your activities, in an amount to be determined
by the court at the time of sentencing."

Finally, Petersen contends that he should not have to pay
$10,000 to the KPWR-FM radio station as part of the restitu-
tion order. He contends that because the radio station would
have paid some other caller $10,000 as a prize had he not
rigged the system, the station suffered no loss. Because the
alternative winner is unknown, there is no one to whom to pay
restitution. The United States incorrectly responds that Peter-
sen failed to raise this issue below. Petersen raised the issue
in his sentencing memorandum to the district court. Neverthe-
less, the argument is without merit. A defendant is not
excused from returning a fraudulently obtained "prize" from
a radio station because someone else would have received the
prize. The radio station still suffered a loss by paying out
$10,000 under false pretenses. "[C]riminal restitution is a
means of achieving penal objectives such as deterrence, reha-
bilitation, or retribution," as well as compensation. United
States v. Smith, 944 F.2d 618, 624 n.2 (9th Cir. 1991) (inter-
nal quotation omitted), cert. denied, 503 U.S. 951 (1992).

                                13920


IV

We conclude that the district court did not err in imposing
upward adjustments for use of a special skill underS 3B1.3
and obstruction of justice under S 3C1.1, in declining to
reduce the offense level under S 2X1.1 for attempt/
conspiracy, or in ordering restitution.

AFFIRMED.

                                13921
 the end