United States v. Ndibe ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4485
OKECHUKWU PAUL NDIBE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-96-426-AW)
Submitted: February 24, 1998
Decided: September 1, 1998
Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Harry D. McKnett, Columbia, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, David I. Salem, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Okechukwu Paul Ndibe was convicted by a jury of conspiracy to
commit mail fraud in violation of 18 U.S.C. § 371 (1994). He appeals
his eighteen-month sentence, contending that the district court erred
in calculating the amount of loss attributable to him under USSG
§ 2F1.1.1 Finding no clear error, we affirm.
I.
Ndibe came to the United States from Nigeria, moved into an
apartment with Charles C. Bosah, and became involved in a scheme
to defraud mail order merchandise companies, including Columbia
House, BMG Music, and two book clubs. Ndibe opened post office
boxes in fictitious names and mailed membership applications in vari-
ous names to the companies to take advantage of the companies' pro-
motional marketing offers. When Ndibe received the compact disks
after paying only for shipping and handling, he gave the disks to
Bosah, who sold them in Nigeria and shared the proceeds with Ndibe.
After the jury verdict, the probation officer prepared a presentence
report and recommended a base offense level of six under USSG
§ 2F1.1(a), a two-level increase for more than minimal planning
under USSG § 2F1.1(b)(2), and a six-level enhancement under USSG
§ 2F1.1(b)(1)(G) based on an estimated loss of $108,000, for a total
offense level of fourteen. With a criminal history category of I, the
applicable guideline range was fifteen to twenty-one months.
At the sentencing hearing, Ndibe objected to the total amount of
the loss because the probation officer included proceeds from Bosah's
trips to Nigeria that occurred before Ndibe moved into the apartment
and became involved in the conspiracy. Ndibe also objected to the
$15 per item value used to calculate the amount of the loss, arguing
that the amount of the loss should be measured by the amount of
money the companies expected to make on the promotions. Because
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1 U.S. SENTENCING G UIDELINES MANUAL (1995).
2
customers could obtain as many as sixteen compact disks for the price
of one, Ndibe contended that the government's loss figures were
inflated by a factor of sixteen.
Testimony at the hearing disclosed that officers executed a search
warrant at the apartment and discovered approximately 1600 compact
disks and 1800 books. Based on information from the merchandise
companies about the price at which regular club members purchase
disks and books--BMG Music, $15 per disk; Columbia House,
$15.98 per disk; the book clubs, a range of $12 to $21 per book, with
an average price of $15.03--the probation officer rounded the per
item amount to $15 and multiplied that amount by 3400 disks and
books, for a total of $51,000. The court accepted as reasonable the
$51,000 figure and added $6600--the amount of proceeds from one
of Bosah's trips to Nigeria after Ndibe became involved in the fraudu-
lent scheme. The $57,600 loss established by the court resulted in a
five-level (rather than the recommended six-level) enhancement, for
a total offense level of thirteen. The court sentenced Ndibe to an
eighteen-month term of incarceration, the maximum authorized under
the applicable guideline range, and imposed a three-year term of
supervised release. Ndibe timely appeals.
II.
On appeal, Ndibe contends that the district court improperly used
a hypothetical retail market rather than the actual mail order market
in which the goods were sold to establish the value of the books and
compact disks. Because club members in the mail order discount mar-
ket could buy sixteen compact disks for about $15, Ndibe contends
that the fair market value of the goods was about $1 each. Therefore,
the district court inflated the amount of the loss which resulted in a
higher offense level and longer sentence.
A district court's finding of amount of loss generally is a factual
question reviewed for clear error. See United States v. Chatterji, 46
F.3d 1336, 1340 (4th Cir. 1995). Each case is decided on its own
facts. See United States v. Mancuso, 42 F.3d 836, 849 (4th Cir. 1994).
Here, the evidence at the sentencing hearing disclosed that Ndibe
fraudently applied for music and book club memberships, received
the merchandise, and shared in the profits of the subsequent sales. We
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find that the court's valuation of the items at $15 each was reasonable
given that the average retail book price was $15.03 and the compact
discs cost regular club members $15 to $15.98. See United States v.
Ellerbee, 73 F.3d 105, 108-09 (6th Cir. 1996) (holding that the district
court's use of retail value of compact disks in computing amount of
loss not clearly erroneous).2 The district court therefore did not clearly
err in determining that the loss was in excess of $40,000 and therefore
that Ndibe's offense level should be increased by five. See Chatterji,
46 F.3d at 1340; USSG § 2F1.1 comment. (n.8) ("For the purposes of
subsection (b)(1), the loss need not be determined with precision.").
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
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2 Ndibe relies on Judge Kennedy's concurrence in Ellerbee to support
his contention that the amount actually charged by the music and book
clubs should be the value used to establish the amount of the loss. See
Ellerbee, 73 F.3d at 109-10 (Kennedy, J., concurring). We agree with the
majority in Ellerbee that "the fact that [using such amount] may be the
more accurate of the two methods does not make the district court's
determination clearly erroneous." Id. at 109.
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