United States v. Ugochukwu Enwerem , 482 F. App'x 869 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4388
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
UGOCHUKWU ENWEREM, a/k/a Joseph Smith, a/k/a Ugo,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:07-cr-00157-GCM-DCK-2)
Argued: March 23, 2012 Decided: April 30, 2012
Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, TRAXLER,
Chief Circuit Judge, and SHEDD, Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Ross Hall Richardson, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Daniel Steven Goodman, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina; Allison Wexler, Matthew Segal,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Lanny A. Breuer, Assistant
Attorney General, Greg D. Andres, Acting Deputy Assistant
Attorney General, Laura N. Perkins, Nicole H. Sprinzen, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Ugochukwu Enwerem on one count of
conspiracy to commit mail fraud and wire fraud, in violation of
18 U.S.C. § 371, and fourteen counts of wire fraud, in violation
of 18 U.S.C. § 1343. After calculating Enwerem’s advisory
Guidelines range to be 188-235 months, the district court
granted an 80-month downward variance and sentenced Enwerem to
concurrent sentences of 60 months of imprisonment on the
conspiracy count and 108 months of imprisonment on each wire
fraud count. In this appeal, Enwerem challenges his sentence on
several grounds. For the following reasons, we affirm.
I.
The facts of this case are not in dispute. For
several years, Enwerem participated in an advance fee fraud
conspiracy (the “conspiracy”). Victims received letters or e-
mails informing them that they had, for example, won a lottery,
inherited a substantial sum of money, or, in a format referred
to as the “pipeline scheme” in this case, could collect funds
remaining from a government contract. Supposedly to receive the
proceeds, victims sent comparatively small fees, usually through
Western Union, to locations in Western Europe. Members of the
conspiracy called “westies” would pick up the money at Western
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Union locations, and each member of the conspiracy received a
portion of the collected fees.
Kent Okojie brought Enwerem into the conspiracy in
2004. Enwerem began as a westie, picking up money transfers in
Spain. Later, Enwerem followed Okojie to Amsterdam, where he
answered phone calls from victims and helped with other
administrative matters related to the conspiracy.
In 2007, after an investigation into the conspiracy,
Dutch police searched both Okojie’s and Enwerem’s apartments.
The police seized documentation on USB and hard drives as well
as fake passports and bank account information. The Dutch
police turned the evidence over to U.S. postal inspectors, who
used it to identify victims and to establish the verifiable loss
attributable to Enwerem and the conspiracy.
II.
On appeal, Enwerem argues that the district court
failed to make particularized findings sufficient to explain its
loss calculations. * Specifically, Enwerem challenges the
*
Enwerem raises four additional issues: (1) the inclusion
of losses sustained by foreign victims to calculate attributable
loss, (2) the application of an aggravating-role enhancement,
(3) the application of a government-actor enhancement, and (4)
the propriety of the imposed restitution order. We have
reviewed these claims and find them to be without merit.
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inclusion of losses sustained by victims in the pipeline scheme
as relevant conduct pursuant to U.S.S.G. § 1B1.3(a)(1)(B).
“[T]he determination of loss attributable to a fraud
scheme is a factual issue for resolution by the district court,
and we review such a finding of fact only for clear error.”
United States v. Godwin, 272 F.3d 659, 671 (4th Cir. 2001).
However, “a sentencing court, in order to hold a defendant
accountable for the conduct of his coconspirators, should make
particularized findings with respect to both prongs of §
1B1.3(a)(1)(B),” including the scope of criminal activity agreed
on by the defendant and the foreseeability of his co-
conspirators’ conduct. United States v. Bolden, 325 F.3d 471,
499 (4th Cir. 2003).
In attributing the pipeline scheme amounts to Enwerem,
the district court made sufficient individualized findings. See
J.A. 1239-1243. During the sentencing hearing, the court
indicated that foreseeability was the touchstone for attributing
this loss to Enwerem and, specifically, referenced a phone call
by Enwerem to a co-conspirator in which Enwerem sought proceeds
from this part of the conspiracy. Then, after entertaining
argument from both counsel for Enwerem and the government on the
loss issue, the court specifically adopted the government’s
version of the loss amounts, which expressly included the loss
caused by the pipeline scheme. Although the court perhaps could
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have more precisely articulated its findings, the record
demonstrates the court had an individualized basis for the loss
attributed to Enwerem. We find no clear error in that
determination.
III.
For the foregoing reasons we affirm the judgment of
the district court.
AFFIRMED
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