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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11077
Non-Argument Calendar
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D.C. Docket No. 4:18-cr-00024-WTM-CLR-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
UCHECHI OHANAKA,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(June 24, 2020)
Before MARTIN, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
Uchechi Ohanaka, a federal prisoner, appeals his 125-month sentence for
conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349. He
argues that the district court erred in calculating a total intended loss amount of
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$1.716 million and refusing to reduce his offense level because his crime was
merely an attempt. After careful review, we affirm.
I.
On October 9, 2018, Ohanaka pled guilty to one count of conspiracy to
commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349. The Probation
Department prepared a presentence investigation report (“PSR”). The PSR
described a conspiracy in which Ohanaka, Marvin Courson, and others
impersonated wealthy bank customers to gain access to their credit lines. In
November 2017, law enforcement arrested Courson at a Regions Bank branch in
Dallas, Texas, where he was using information provided by Ohanaka to
impersonate a bank customer named Irving Kahn to access Kahn’s $700,000 credit
line.
After his arrest, Courson began cooperating with law enforcement. He told
law enforcement that Ohanaka gave him documents that Courson used to
impersonate real people and try to withdraw money from their financial accounts.
In December 2017, under the supervision of law enforcement, Courson worked
with Ohanaka to try and access the bank accounts of Mark Emas. At this time,
Ohanaka provided Courson with documents containing Emas’s personal
identifying information and signature. Ohanaka gave Courson a fake Florida
driver’s license with Courson’s picture but Emas’s personal information, as well as
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a fake credit card embossed with Emas’s name. He instructed Courson to
memorize Emas’s personal identifying information and to practice replicating
Emas’s signature. Ohanaka traveled to Texas and waited in a car outside a BBVA
Compass bank branch in Irving, Texas, while Courson went into the bank and
successfully withdrew $216,000 in the form of a cashier’s check from Emas’s
home equity line of credit. Courson left the bank and got into Ohanaka’s parked
car. Federal agents then arrested Ohanaka.
After Ohanaka was arrested, law enforcement officers seized his cellphone
and retrieved audio recordings sent through the messaging application WhatsApp.
In one of these messages, sent November 23, 2017, Ohanaka stated, “If you want
to do two transactions that’s fine. I’m okay with that, but just give me one week
because that’s a lot of money . . . . You expect me to remove $800,000 within a
few days now. You know it takes time, but yes, it’s doable.”
The Probation Department calculated a base offense level of 7 under United
States Sentencing Guidelines § 2B1.1(a)(2). The PSR attributed to Ohanaka a total
intended loss amount of $1.716 million: $700,000 based on the attempt to defraud
Kahn, $216,000 based on the attempt to defraud Emas, and an additional $800,000
based on the recordings recovered from Ohanaka’s cell phone. Because the
intended loss amount was between $1.5 million and $3.5 million, the PSR applied
a 16-level increase under Guidelines § 2B1.1(b)(1)(I). The PSR also applied two-
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level increases each for the specific offense characteristics of relocating a
fraudulent scheme to evade law enforcement, § 2B1.1(b)(10)(A), and possessing or
using an authenticating feature, § 2B1.1(b)(11)(A)(ii). It also added three levels,
under Guidelines § 3B1.1(b), for Ohanaka’s managerial or supervisory role in the
conspiracy. Finally, it applied a three-level total reduction for acceptance of
responsibility under Guidelines § 3E1.1(a) and (b). Based on an offense level of
27 and a criminal history category of IV, Ohanaka’s recommended guideline range
was 100- to 125-months incarceration.
Ohanaka objected to the PSR’s intended loss calculations. First, he objected
to the $700,000 loss amount based on the attempt to defraud Kahn, on the ground
that he did not have knowledge of the amount of credit that Kahn had available.
He next objected to the $216,000 loss amount based on the information he
provided Courson to withdraw funds using Emas’s credit line. He argued this loss
amount was inappropriate because law enforcement prevented Courson from
actually withdrawing funds. He further argued this entitled him to a reduction
under Guidelines § 2X1.1(b)(1), since it qualified only as an attempted crime.
Finally, he argued that there was no evidence of overt action linking him to the
$800,000 loss amount based on his WhatsApp voice messages.
Ohanaka raised substantially the same objections at his March 11, 2019
sentencing hearing. Under oath, Ohanaka testified that the WhatsApp message
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regarding the withdrawal of $800,000 was part of a conversation with Abu Azuka,
a family friend who lives in Nigeria, regarding the purchase of vehicles and
property. On cross examination, the government presented Ohanaka with
messages sent to him by Azuka containing bank account information, usernames,
passwords, addresses, and dollar amount limitations for a number of individuals.
Ohanaka testified that he did not know whom the information belonged to and that
he did not know why Azuka sent him the information.
Special Agent Jason Lynch of the United States Secret Service also testified
at the sentencing hearing. He said his investigation revealed that Ohanaka and
Courson typically gained access to bank accounts knowing the account balance.
He said that Kahn’s account had a credit limit of $700,000. However, on cross-
examination he admitted he had no evidence of Ohanaka ever specifically stating
that he knew the Kahn account had a $700,000 line of credit. Agent Lynch also
testified that Ohanaka’s conversations with Azuka were not consistent with
international car sales. Rather, it appeared that Ohanaka and Azuka were
discussing fraudulently withdrawing funds from the accounts of the people whose
personal information Azuka sent to Ohanaka.
After hearing this testimony, the district court adopted the facts set out in the
PSR as well as the advisory guideline calculations, including the total loss amount
of $1,716,000. Based on these calculations, the court sentenced Ohanaka to a term
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of 125-months imprisonment and five-years supervised release. The court
explained that it imposed a sentence at the top of the guideline range because of
Ohanaka’s history of fraud-related offenses, his failure to abide by court orders,
and his lack of candor with the court and the probation office. Ohanaka timely
appealed.
II.
We review de novo the district court’s “legal interpretation of the sentencing
guidelines” and the “application of the sentencing guidelines to the facts.” United
States v. Cubero,
754 F.3d 888, 892 (11th Cir. 2014). But we review for clear
error the district court’s underlying factual findings, including the loss-amount
determination. Id.; United States v. Medina,
485 F.3d 1291, 1297 (11th Cir. 2007).
The government bears the burden of proving the amount of loss by a
preponderance of the evidence. United States v. Cover,
199 F.3d 1270, 1276 (11th
Cir. 2000) (per curiam). This burden must be satisfied with “reliable and specific
evidence.” United States v. Sepulveda,
115 F.3d 882, 890 (11th Cir. 1997)
(quotation marks omitted).
III.
On appeal, Ohanaka challenges his 16-level sentencing enhancement based
on the calculated intended loss of $1,716,000. He first argues that he is entitled to
a three-level reduction under Guidelines § 2X1.1(b)(1), because the issuance of a
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check to Courson under Emas’s line of credit should have been categorized as an
attempt to defraud Emas. He also argues that the $700,000 loss based on the
attempt to defraud Kahn and the $800,000 loss based on his conversations with
Azuka were too speculative to serve as the basis for his loss amount. We address
these arguments in turn.
A.
Ohanaka first argues that, if law enforcement agents had prevented Courson
from completing the Emas transaction before he left the bank, the offense would
have been only an attempt crime. He claims this entitles him to a reduction of his
offense level under Guidelines § 2X1.1(b)(1). This argument is without merit.
Section 2X1.1(b)(1) entitles a defendant to a three-level reduction from the
base offense level if the crime was an attempt. Section 2X1.1(b)(2) provides for
the same reduction if the crime was a conspiracy. But Section 2X1.1(b)(2) does
not apply if “the defendant or a co-conspirator completed all the acts the
conspirators believed necessary on their part for the successful completion of the
substantive offense or the circumstances demonstrate that the conspirators were
about to complete all such acts but for apprehension or interruption by some
similar event beyond their control.” Section 2X1.1(b)(1) similarly allows the court
to decline a three-level reduction for an attempt “if the factual circumstances show
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that the offense was about to be complete but for an interruption beyond the
defendant’s control.” United States v. Lee,
427 F.3d 881, 894 (11th Cir. 2005).
The district court did not err in finding Ohanaka ineligible for a three-point
offense level reduction under § 2X1.1(b)(1) or (2). Ohanaka admitted at his
change of plea hearing that he instructed Courson to enter the BBVA Compass
bank branch and get a cashier’s check for $216,000 in Emas’s name. He also
admitted that he provided Courson with the information necessary to impersonate
Emas and complete this transaction. These admissions show, by a preponderance
of the evidence, that at the time of his arrest Ohanaka had completed all the steps
he thought necessary for his role in the bank fraud. This renders him ineligible for
the reduction under either prong of § 2X1.1. Cf. United States v. Khawaja,
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F.3d 1454, 1458 (11th Cir. 1997) (holding that the district court erred in failing to
apply § 2X1.1(b)(2) where the conspirators had failed to take “crucial steps” in a
money laundering scheme).
Neither does the fact that Courson was cooperating with law enforcement
make Ohanaka eligible for a § 2X1.1 reduction. In this prosecution, as in most
prosecutions for attempt or conspiracy, “the reduction is not warranted because the
substantive offense had been substantially completed” and it was only because of
law enforcement that the offense “was interrupted or thwarted.” United States v.
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Watkins,
477 F.3d 1277, 1280 (11th Cir. 2007). The district court did not err by
declining to give Ohanaka a three-level reduction under § 2X1.1.
B.
Ohanaka next argues that the district court erred in attributing a $700,000
loss amount based on the attempt to withdraw money from Kahn’s account. He
claims there was no specific evidence in the record that Ohanaka knew the account
had a $700,000 credit line. While Ohanaka is correct that the government
presented no direct evidence that he had knowledge of the value of Kahn’s credit
line, we conclude that circumstantial evidence sufficiently supported the district
court’s loss finding.
When calculating the amount of loss attributable to a defendant, the district
court applies the greater of the actual or intended loss. See USSG § 2B1.1(b)(1),
cmt. n.3(A). Intended loss is the pecuniary harm that the defendant purposely
sought to inflict, including intended harm “that would have been impossible or
unlikely to occur.”
Id. § 2B1.1(b)(1), cmt. n.3(A)(ii). While the government bears
the burden of proving the amount of loss by a preponderance of the evidence, the
sentencing court need only make a reasonable estimate of the loss amount.
Id.
§ 2B1.1(b)(1), cmt. n.3(C). This is because “often the amount of loss caused by
fraud is difficult to determine accurately.” United States v. Miller,
188 F.3d 1312,
1317 (11th Cir. 1999) (per curiam).
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At the sentencing hearing, Agent Lynch testified that his investigation
revealed that Ohanaka and his co-conspirators targeted credit lines specifically
because of their high value and knew how much money was in the accounts they
accessed. This contention was supported by a recorded conversation with Courson
in which Ohanaka said that he knew that Kahn had a line of a credit and a checking
account containing $4,000. It was also supported by Ohanaka’s prior conduct.
During the attempt to defraud Emas, Ohanaka informed Courson of the balances in
Emas’s account and instructed Courson to withdraw $216,000, which approached
the total value of a credit line worth approximately $249,000.
Given this evidence, it was reasonable for the district court to infer that
Ohanaka knew the credit limit on Kahn’s account. See United States v.
Manoocher Nosrati-Shamloo,
255 F.3d 1290, 1292 (11th Cir. 2001) (per curiam)
(“A defendant’s intent is often difficult to prove and often must be inferred from
circumstantial evidence.”). But even absent this inference, the district court did not
clearly err in calculating a loss amount equal to the full value of Kahn’s credit line.
In an analogous case, this Court held that “once a defendant has gained access to a
certain credit line by fraudulently applying for credit cards, a district court does not
err in determining the amount of the intended loss as the total line of credit to
which Defendant could have access.”
Id. at 1291. Similarly here, it was
reasonable for the district court to infer that Ohanaka intended to withdraw all, or
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close to all, of the funds available under Kahn’s credit line, particularly in light of
the fact that Ohanaka previously instructed Courson to withdraw nearly all of the
funds available under Emas’s credit line.
We therefore hold that the district court did not clearly err in applying a
$700,000 intended loss amount based on Kahn’s credit line.
C.
Finally, Ohanaka argues that the district court erred in attributing to him an
$800,000 intended loss based on his conversation with Azuka. He raises two
objections on appeal. First, relying on his testimony at the sentencing hearing, he
argues that his conversations with Azuka were about the purchase of cars and
property. He claims the account numbers and personal identifying information
Azuka sent him had nothing to do with illegal transactions and argues that the
district court’s conclusion that they did was mere speculation. Second, he argues
that the district court erred by failing to define the scope of his criminal activity
before determining the foreseeable loss amount. Neither of these arguments is
persuasive.
First, although the government did not specifically identify targeted
accounts, the loss amount was adequately supported by the record. The
government uncovered Ohanaka’s recorded statement that he was willing to
remove $800,000 from an account in the near future. This message was sent in the
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context of receiving from Azuka private personal and financial information similar
to what Ohanaka had used to attempt to defraud Kahn and Emas. Further, Agent
Lynch testified that Ohanaka’s conversation with Azuka was inconsistent with
international automobile purchases and was more consistent with identifying new
victims to target for fraud. Taken together, this evidence was sufficient for the
district court to find Ohanaka’s explanation of the messages not credible and
attribute to him the $800,000 intended loss amount. See United States v. Ramirez-
Chilel,
289 F.3d 744, 749 (11th Cir. 2002) (holding that deference is owed to the
trial court’s credibility determination, since it is in “a better position than a
reviewing court to assess the credibility of witnesses”).
Second, the district court did not commit reversible error by not making
explicit findings regarding the scope of Ohanaka’s criminal activity. “[A]
sentencing court’s failure to make individualized findings regarding the scope of
the defendant’s activity is not grounds for vacating a sentence if the record
support[s] the court’s determination with respect to the offense conduct.” United
States v. Petrie,
302 F.3d 1280, 1290 (11th Cir. 2002). Ohanaka’s claim that his
voice message was not related to criminal conduct is not sufficient to upset the
finding that the message showed his intent to work with coconspirators to defraud
an unidentified person of $800,000. And Ohanaka’s reliance on United States v.
Hunter,
323 F.3d 1314 (11th Cir. 2003), is of little help, as that case involved a
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defendant’s liability for actual losses caused by the actions of other coconspirators.
See
id. at 1319. We therefore conclude that the district court did not err in
attributing the $800,000 loss amount to Ohanaka.
IV.
Ohanaka has not shown either that the district court clearly erred in
calculating the loss amount or that it erred in declining to award a reduction under
Guidelines § 2X1.1(b)(1). We therefore affirm the sentence imposed by the district
court.
AFFIRMED.
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