United States v. Tiamiyu ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5537
OLUSHOLA TIAMIYU,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-93-347-MJG)
Submitted: March 31, 1997
Decided: August 6, 1997
Before ERVIN and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James C. Savage, JAMES C. SAVAGE, P.A., Rockville, Maryland;
Larry Allen Nathans, Jason D. Tulley, LAW OFFICES OF LARRY
ALLEN NATHANS, Baltimore, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, Richard C. Kay, Assistant United
States Attorney, Baltimore, 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Unpublished opinions are not binding precedent in this circuit.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:
Olushola Tiamiyu pled guilty to one count of possession and use
of unauthorized access devices (credit card fraud), in violation of 18
U.S.C. § 1029(a)(2), (3) (1994) for which he was sentenced to 87
months imprisonment. Tiamiyu appeals claiming (1) that the Govern-
ment failed to prove that he derived more than $1 million in gross
receipts and awarding him a 4-level increase, USSG§ 2F1.1(b)(6)(B);1
(2) that the district court erred in calculating the amount of loss for
which he would be held accountable was more than $10 million,
USSG § 2F1.1(b)(1)(P); and (3) that the district court erred in denying
him a two-level reduction for acceptance of responsibility, USSG
§ 3E1.1. We affirm.
Tiamiyu single-handedly operated a large-scale credit card fraud
scheme whereby he would obtain names and personal information
from loan applications and credit reports, including credit card
account numbers. He would then contact the credit card issuer and,
posing as the cardholder, change the billing address to one he had
access to and then request a replacement card. Tiamiyu used these
cards to obtain cash, goods, and services.
When Tiamiyu was arrested in July 1993, he had in his possession
five credit cards issued by Wachovia Bank, none of which were in his
name. A storage locker rented by Tiamiyu under an alias was
searched, pursuant to a search warrant, and found to contain sixteen
driver's licenses (all bearing different names and Tiamiyu's photo-
graph), thirty credit cards, and various documents pertaining to credit
cards.
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1994).
2
At Tiamiyu's sentencing hearing, Delores Boni, a fraud investiga-
tor for Nationsbank, testified that, based on the evidence found in the
storage locker, she generated a list of 1000 names and either social
security numbers or credit card numbers which she sent out to 124
"targeted" banks seeking information on fraud losses incurred by each
bank.2 Only thirteen banks responded, reporting losses totalling
$1,684,234 (including Nationsbank). Dividing this figure by the thir-
teen responding banks, the district court estimated an "absolutely
minimal" loss of $100,000 per bank. Multiplying this by the 124 tar-
geted banks resulted in a total loss of $12.4 million, raising Tiamiyu's
offense level by fifteen. USSG § 2F1.1(b)(1)(P). Tiamiyu also
received a four-level increase under USSG § 2F1.1(b)(6)(B) because
his offense affected a financial institution and his gross receipts were
more than $1 million.
Tiamiyu appeals his sentence, claiming that the district court erred
in denying an adjustment for acceptance of responsibility and in its
findings regarding the amount of loss attributable to his offense.
The district court's finding of amount of loss is generally a factual
question reviewed for clear error. United States v. Chatterji, 46 F.3d
1336, 1340 (4th Cir. 1995). Each case is decided on its own facts.
United States v. Mancuso, 42 F.3d 836, 849 (4th Cir. 1994). The dis-
trict court did not err in finding that Tiamiyu's conduct affected a
financial institution and that he derived more than $1 million in gross
receipts, USSG § 2F1.1(b)(6)(B). Evidence submitted by Citibank
alone showed a loss of $1,468,566 from 691 Visa and Mastercards
affected by Tiamiyu's conduct. Nevertheless, Tiamiyu asserts that the
district court's findings on this issue were erroneous because the gov-
ernment did not prove that he had assets of over $1 million or that he
personally received more than $1 million. Tiamiyu also claims that
the district court failed to make factual findings on this issue. How-
ever, Tiamiyu cites no authority for his first proposition (that the gov-
ernment must prove that he had over $1 million in assets) and the two
cases he cites as supporting his second proposition do not support his
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2 The banks were chosen either because they were an issuing bank
shown on the credit cards or account information found in Tiamiyu's
locker or were included on handwritten lists of banks, bank directories,
or photocopied telephone books which Tiamiyu had targeted.
3
claim as they only involve claims by one of several co-defendants
regarding allocation of losses.3 Finally, Tiamiyu's claim that the dis-
trict court failed to make factual findings is belied by the record. The
district court also did not err in finding that Tiamiyu's conduct
resulted in a total loss of $12.4 million. The commentary to § 2F1.1
provides that:
For the purposes of subsection (b)(1), the loss need not be
determined with precision. The court need only make a rea-
sonable estimate of the loss, given the available information.
This estimate, for example, may be based on the approxi-
mate number of victims and an estimate of the average loss
to each victim . . . .
USSG § 2F1.1, comment. (n.8). This is exactly what the district court
did in this case. Because "the loss need not be determined with preci-
sion," and the district court made a reasonable estimate given all the
available information, Tiamiyu's claims challenging the district
court's methodology are without merit.
Finally, Tiamiyu asserts that the district court erred in denying a
two-level reduction in his base offense level for acceptance of respon-
sibility pursuant to USSG § 3E1.1. Whether the reduction is war-
ranted is a factual question, reviewed for clear error. United States v.
Curtis, 934 F.2d 553, 557 (4th Cir. 1991); United States v. Daughtrey,
874 F.2d 213, 217 (4th Cir. 1989). In order to receive this reduction,
a defendant must demonstrate that he is entitled to the adjustment by
a preponderance of the evidence. United States v. Harris, 882 F.2d
902, 907 (4th Cir. 1989). And, a guilty plea does not automatically
entitle the defendant to the reduction. Id. Tiamiyu admitted possess-
ing only the five credit cards found on his person when he was
arrested and claimed that he was delivering them for a friend. And in
his sentencing memorandum, Tiamiyu accepted responsibility for
only $101,589. Given Tiamiyu's denial of the level of his involve-
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3 See United States v. Millar, 79 F.3d 338 (2d Cir. 1996) (remanding
for a determination that one of three co-defendants had personally
derived more than $1 million in gross receipts); and United States v.
Wong, 3 F.3d 667 (3d Cir. 1993) (addressing claim raised by one of three
co-conspirators).
4
ment in the underlying offense, the district court did not err in deny-
ing this adjustment. See USSG § 3E1.1, comment. (n.1(a)) (the
adjustment does not apply when a defendant falsely denies or frivo-
lously contests relevant conduct that the court determines to be true).
Accordingly, we affirm Tiamiyu's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
5