United States v. Oluwaseun Sanya , 652 F. App'x 168 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4306
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OLUWASEUN SANYA,
Defendant - Appellant.
No. 15-4574
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OLUWASEUN SANYA,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Theodore D. Chuang, District Judge.
(8:12-cr-00379-TDC-1; 8:13-cr-00121-TDC-1)
Submitted: May 31, 2016 Decided: June 14, 2016
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth E. McPherson, KENNETH E. MCPHERSON, CHTD, Riverdale,
Maryland; Gregory Dolin, Catherine Florea, Marie Langlois,
UNIVERSITY OF BALTIMORE, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Sujit Raman, Chief of
Appeals, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Oluwaseun Sanya appeals from the sentences imposed upon
resentencing after he pleaded guilty to conspiracy to commit
access device fraud, access device fraud, and aggravated
identity theft in two related cases. In a first appeal, this
court ruled that the district court impermissibly participated
in plea negotiations on the charges of access device fraud and
aggravated identity theft. We vacated those convictions and
both sentences and remanded for further proceedings. United
States v. Sanya, 774 F.3d 812, 814, 821-22 (4th Cir. 2014). On
remand, the cases were assigned to a new district court judge
and deconsolidated. In the conspiracy to commit access device
fraud case, the guilty plea remained intact and the court
sentenced Sanya to 90 months of imprisonment. In the case
vacating the remaining convictions, the parties again entered
into a plea agreement and the court sentenced Sanya to 81 months
and one day of imprisonment, all to run consecutively to the
previous 90-month sentence. Sanya appeals the sentences imposed
on both cases. Counsel has filed an Anders v. California, 386
U.S. 738 (1967) brief challenging the criminal judgment in the
access device fraud and aggravated identity theft convictions.
Counsel found no meritorious issues related to the judgment but
questioned whether the plea agreement was supported by a factual
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basis and whether the consecutive sentence was reasonable.
Finding no error, we affirm.
We first address the 90-month sentence imposed for
conspiracy to commit access device fraud. Sanya argues that the
Government presented false and misleading testimony when
Detective Mengedoht testified that all the transactions on the
“Limnios spreadsheet” were captured on video surveillance. He
also contends that the Government presented losses above what
was agreed to in the plea agreement. The Government argues that
every transaction on the Limnios spreadsheet could be traced to
direct video or photographic evidence, as the detective
testified that the transactions were all related to at least
credit card numbers used by co-conspirators at that location on
the same day. Thus, the Government argues, the court was
justified in relying upon the Government’s loss spread sheets.
Sanya’s argument is two-fold. First, whether the evidence
presented in the loss spreadsheets was misleading or false and,
further, violated the plea agreement. And, second, whether the
court erred in relying on the information. Sanya did not object
to the use of the challenged spreadsheets at resentencing,
therefore we review the claim for plain error. United States v.
Olano, 507 U.S. 725, 732 (1993). Although Sanya contends that
the use of false or misleading evidence implicates his due
process rights and should be reviewed de novo, see Napue v.
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Illinois, 360 U.S. 264, 271 (1959), because Sanya did not
articulate any objection on these bases for the district court
to rule upon, we review for plain error.
We conclude that the court did not plainly err in
considering Detective Mengedoht’s testimony and the relevant
amount of loss spreadsheets. It is clear from the record that
the court was aware that the detective did not have video
footage of conspirator Limnios making each transaction on the
contested spreadsheets, but the record reflects that the court
was aware of the type of evidence supporting the transactions.
We therefore find no plain error resulting in the violation of
Sanya’s due process rights and, further, that the testimony was
not misleading when viewed as a whole.
Sanya also argued that the Government breached the plea
agreement because it introduced evidence and argued for an
amount of loss exceeding that stipulated to in the plea
agreement. Sanya’s statement of facts in the plea agreement
originally stated “hundreds of thousands of dollars” of loss was
involved and that Sanya directed “hundreds” of fraudulent
transactions. (J.A. 22, 24). This quantitative language was
eventually stricken from the agreement.
Sanya’s argument alleges that the stricken language in the
statement of facts bound the Government not to argue that Sanya
was involved with hundreds of thousands of dollars of loss and
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hundreds of fraudulent transactions. This is simply not the
case. In fact, the plea agreement contemplated the Government’s
ability to advocate for losses in excess of $400,000, and stated
the Government had the right to bring to the court’s attention
all relevant information regarding Sanya’s conduct. The
Government in fact did argue for losses over $400,000, without
objection by trial counsel that it was in violation of the plea
agreement. This argument is patently frivolous. In summary,
after reviewing the entirety of the record at resentencing, we
are not convinced that the court plainly erred in considering
the contested testimony and transactions on the spreadsheets.
There is no false or misleading testimony or violation of the
plea agreement evident in the record when viewed as a whole.
Thus, we find no plain error on these related arguments.
Next, we consider the reasonableness of the sentence
imposed for the conspiracy to commit access device fraud. This
court reviews any criminal sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” for
reasonableness, “under a deferential abuse-of-discretion
standard.” United States v. King, 673 F.3d 274, 283 (4th Cir.
2012); see Gall v. United States, 552 U.S. 38, 51 (2007). The
first step in procedural reasonableness review is to evaluate
the district court’s Sentencing Guidelines calculations. Gall,
552 U.S. at 51. With regard to the calculation of the
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Guidelines range, we “review the [sentencing] court’s factual
findings for clear error, its legal conclusions de novo, and
unpreserved arguments for plain error.” United States v.
Strieper, 666 F.3d 288, 292 (4th Cir. 2012) (internal citations
omitted).
Sanya only challenges the calculation of loss. The
sentencing court “need only make a reasonable estimate of the
loss.” USSG § 2B1.1 cmt. n.3(C); see United States v. Keita,
742 F.3d 184, 192 (4th Cir. 2014) (recognizing that the loss
amount “need not be determined with precision” (internal
quotation marks omitted)). We conclude that the court was
justified in relying upon the Government’s loss spreadsheets.
As Mengedoht’s testimony revealed, every transaction on the
Limnios spreadsheet could in some way be linked to direct
video/photographic evidence. In the vast majority of instances,
Detective Mengedoht had direct video evidence of Limnios (or one
of the known conspirators) using a stolen credit card number.
In the remainder of the transactions, where he did not have
direct video evidence of the particular fraudulent transaction
conducted by Limnios, the detective did have direct evidence of
one of the conspirators using that particular stolen account
number at a different time.
This court’s decision in United States v. Keita is soundly
controlling in this case. The facts of Keita are significantly
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similar to the facts of this case regarding loss. In Keita, a
jury convicted the defendant of various charges related to
credit card and debit card fraud. 742 F.3d at 186. At
sentencing, the investigating detective produced a spreadsheet
detailing Keita’s fraudulent transactions, “including the dates,
the locations, the credit card numbers used, the amounts
charged, and the banks associated with the credit card numbers.”
Id. at 192. The detective “noted that videotape surveillance
showed [Keita] conducting many of the listed fraudulent
transactions, and that other losses were traced through the
stolen credit card information found on [Keita’s] laptops.” Id.
As this Court observed: “Regardless, each loss attributed to
Defendant was ultimately supported by videotape evidence; [as
the detective] explained, ‘[i]f I had no video of the
transaction and I could not associate that credit card number
with one where we did have [video], then I . . . didn’t count it
and did not put it on the spreadsheet.’” Id.
Here, as in Keita, the losses attributed to Sanya on the
Limnios spreadsheet reflected transactions captured on video, or
transactions associated with credit card numbers where
investigators did have video. On the record at resentencing, we
conclude that the loss amount is established by a preponderance
of the evidence. The court did not abuse its discretion in
imposing the sentence.
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Next, we turn to the Anders challenge to Sanya’s sentence
for the access device fraud and aggravated identity theft
convictions. First, counsel raises and immediately rejects the
question of whether a factual basis supported the guilty plea
because Sanya admitted the factual basis for his plea. Sanya’s
sentence of 57 months on Count 1 was within the properly
calculated Sentencing Guidelines range. The sentence of 24
months and 1 day imposed on Count 2 is mandated by the statute
and not within the court’s power to vary. See 18 U.S.C. §
1028A(b) (prohibiting courts from sentencing individuals
convicted under this section to probation, imposing concurrent
sentences, or reducing other sentences in light of the
conviction under this section).
Sanya agreed with the sentencing recommendation contained
in the PSR. The sentence imposed by the court tracked the PSR’s
recommendation, except that instead of requiring that the 41
months of the sentence attributable to the underlying conviction
for violating 18 U.S.C. § 1029(a)(2) run concurrent to the
sentence imposed in No. 1:12-CR-00379-TDC-1, the court ordered
that it be run consecutively.
The district court must adequately explain its sentence to
allow the appellate courts to engage in a meaningful review.
Gall, 552 U.S. at 51. The district court’s explanation of the
sentence imposed was adequate. The court specifically explained
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why it is imposing a consecutive rather than concurrent
sentence. The court’s reasoning satisfied the procedural
requirement that a sentencing court not expressly reject a
policy articulated by Congress or the Sentencing Commission or
consider an improper basis when imposing a sentence. See United
States v. Moreland, 437 F.3d 424, 434 (4th Cir. 2006).
Accordingly, it does not appear that the court committed any
error in imposing a 57-month term of imprisonment on Count 1 and
a 24 months and 1 day term of imprisonment on Count 2, to run
consecutive to the term on Count 1.
The consecutive sentences were proper. Sentencing judges
“have discretion to select whether the sentences they impose
will run concurrently or consecutively with respect to other
sentences that they impose. . . .” Setser v. United States, 132
S. Ct. 1463, 1468 (2012). Further, the Guidelines state that
“[i]n any other case involving an undischarged term of
imprisonment, the sentence for the instant offense may be
imposed to run concurrently, partially concurrently, or
consecutively to the prior undischarged term of imprisonment.”
USSG § 5G1.3(d). The Guidelines provision calling for a
required concurrent rather than consecutive sentences does not
govern here. See id. § 5G1.3(b) (requiring that a sentence run
concurrent to the undischarged term of imprisonment if the
undischarged sentence “resulted from another offense that is
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relevant conduct to the instant offense of conviction under the
provisions of subsections (a)(1), (a)(2), or (a)(3) of
§ 1B1.3”).
Sanya did not object when the PSR concluded that § 5G1.3(d)
rather than § 5G1.3(b) applied. Further, “given the advisory
nature of the Sentencing Guidelines, a district court has no
obligation to impose a concurrent sentence, even if § 5G1.3(b)
applies.” United States v. Nania, 724 F.3d 824, 830 (7th Cir.
2013). We conclude there is no error in imposing the sentences
consecutively.
Sanya’s Anders brief also suggests that the sentence be
reviewed to determine whether it suffers from vindictiveness for
successfully mounting his first appeal. “Due process of law . .
. requires that vindictiveness against a defendant for having
successfully attacked his first conviction must play no part in
the sentence he receives after a new trial.” North Carolina v.
Pearce, 395 U.S. 711, 725 (1969), overruled on other grounds by
Alabama v. Smith, 490 U.S. 794 (1989). “When a sentencing court
imposes a more severe sentence on remand, the reasons for the
court doing so must affirmatively appear.” United States v.
Williams, 444 F.3d 250, 254 (4th Cir. 2006) (internal citations
and quotations omitted).
It does not appear that the sentence imposed was
vindictive. Although prior to his first appeal, the court
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sentenced Sanya to concurrent rather than consecutive terms of
imprisonment, on remand the court chose to impose consecutive
terms of imprisonment rather than concurrent terms. Sanya’s
total sentence, however, was reduced from 212 months to 171
months and 1 day of imprisonment. And, as counsel notes, the
court explicitly refused to impose a sentence that would in
effect negate Sanya’s prior appellate victory. Thus the
sentence is not tainted with vindictiveness for succeeding on
his first appeal.
In accordance with Anders, we have reviewed the entire
record in 15-4574 and have found no meritorious issues for
appeal. We therefore affirm Sanya’s conviction and sentence in
that appeal. This court requires that Anders counsel inform
Sanya, in writing, of the right to petition the Supreme Court of
the United States for further review. If Sanya requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Sanya. We also affirm
Sanya’s judgment in 15-4306.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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