U.S. v. Lghodaro ( 1992 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 91-7322
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EDO-OGOHMWENSEMWEN IUEIORE LGHODARO,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(July 24, 1992)
Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:
Edo-Ogohmwensemwen Iueiore Lghodaro ("Lghodaro") pleaded
guilty to Count 9 of a twelve-count indictment charging him and his
brother, Oronsaye Rowland Lghodaro, with mail fraud and aiding and
abetting in violation of 18 U.S.C. § 1341. He was sentenced to 21
months imprisonment, three years supervised release, ordered to
make restitution in the amount of $1,757.24 and to pay a fine of
$7,316.76.
Between February and November of 1990, Lghodaro and his
brother, using variations of Lghodaro's name, applied for and
received collision insurance with several different insurance
companies on the same vehicle, a 1986 Peugeot. They filed false
collision damage claims on this car with several insurance
companies. Lghodaro eventually pleaded guilty to Count 9 of the
indictment which charged a false collision claim and insurance
payment made by Colonial Penn Insurance Company. Lghodaro applied
for and was approved for collision insurance with Colonial Penn for
his 1986 Peugeot on April 11, 1990 in the name of Eddie Lhodard.
On April 16, he filed a collision damage claim. Prosecution
materials reveal that he told Colonial Penn that he had an accident
with an unknown vehicle in Dallas when the vehicle attempted to
change lanes. He also told them that no police report was filed
and there were no witnesses to the accident. Based on this
collision damage claim, Colonial Penn mailed to "Ed Lghodard" an
insurance draft in the amount of $1,757.24. Lghodaro endorsed and
cashed the draft.
Lghodaro claimed the same damage to the Peugeot with several
insurance companies. Each claim stated that a police report was
not filed and that there were no witnesses to the accident.
Investigative material revealed that Lghodaro filed claims totaling
approximately $35,385.13. He received insurance settlement
payments totaling $9,074.45. Investigative material also revealed
that his brother filed claims totaling approximately $23,430.94 and
received payments of $17,889.67. Altogether, Lghodaro and his
brother filed false claims with insurance companies totaling
$58,816.07, netting $26,964.12 in payments.
ISSUE 1: Amount of loss - conduct attributable to Lghodaro
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Lghodaro argues on appeal that the district court erred by
increasing his offense level five points based on a loss of
$58,816.07. He argues that the amounts attributable to his brother
should not have been attributed to him to determine the loss. He
contends that there was no evidence to show that the amounts of the
false claims made by his brother were reasonably foreseeable to
him.
In its Presentencing Report (PSR), the probation office
recommended that five points be added to Lghodaro's base offense
level pursuant to U.S.S.G. § 2F1.1(b)(1)(F) because the amount of
the loss was $58,816.07. Lghodaro objected to the increase,
arguing that he should not be held accountable for the claims filed
by his brother and that his offense level should only be increased
by two levels. The district court overruled his objection, finding
that Lghodaro and his brother were charged jointly with aiding and
abetting in a scheme or plan to defraud the insurance companies.
U.S.S.G. § 2F1.1(b)(1)(F) provides that if the loss is more
than $40,000 but less than $70,000, the offense level should be
increased by five points. Lghodaro filed claims for $35,385.13 and
his brother filed claims totaling $23,430.94.
Lghodaro can be held accountable for the amount of the claims
filed by his brother if the brother's conduct can be considered
"relevant conduct." Relevant conduct is used to determine the base
offense level and includes "all acts and omissions committed or
aided and abetted by the defendant, or for which the defendant
would be otherwise accountable, that occurred during the commission
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of the offense of conviction, in preparation for that offense, or
in the course of attempting to avoid detection or responsibility
for that offense, or that otherwise were in furtherance of that
offense." U.S.S.G. § 1B1.3(a)(1). Application Note 1 to this
section states that "[i]n the case of criminal activity undertaken
in concert with others, whether or not charged as a conspiracy, the
conduct for which the defendant `would be otherwise accountable'
also includes conduct of others in furtherance of the execution of
the jointly-undertaken criminal activity that was reasonably
foreseeable by the defendant."
The district court found that Lghodaro's brother's conduct was
part of the joint scheme or plan which Lghodaro aided and abetted.
While the court did not expressly state that it found that the
brother's conduct was reasonably foreseeable to Lghodaro, the
meaning of the court's finding is clear.
This is exactly the type of factual scenario which the
sentencing commission had in mind when defining relevant conduct.
Illustration d. to § 1B1.3 describes a situation where two
defendants, working together, design and execute a fraudulent
scheme. One defendant fraudulently obtains $20,000 and the other
defendant fraudulently obtains $35,000. Each defendant is
accountable for the entire $55,000 because they aided and abetted
each other in the fraudulent conduct and because the conduct of
each was in furtherance of the jointly undertaken criminal activity
and was reasonably foreseeable. U.S.S.G. § 1B1.3, comment. (n.1
d.). The district court was not clearly erroneous in finding that
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Lghodaro was responsible for the entire $58,816.07. See U.S. v.
Patterson, F.2d (5th Cir., May 21, 1992, No. 91-1377, slip
p. 4865-66) (where two brothers were involved in a conspiracy
involving stolen vehicles, defendant could have foreseen that as
part of joint enterprise, his brother would obtain other vehicles).
Lghodaro argues that the evidence was not sufficiently
reliable to support a finding that his brother's conduct was
reasonably foreseeable to him.
The PSR indicated that Lghodaro and his brother were acting
together in a scheme to defraud insurance companies. Although the
factual resume does not mention any actions taken by his brother,
Lghodaro pleaded guilty to Count 9 of the indictment, which charged
Lghodaro and his brother with devising a scheme to defraud
insurance companies. Count 9 incorporated the allegations of
concerted activity between the brothers outlined in the
introduction of the indictment.
Although Lghodaro argues that his brother's conduct was not
reasonably foreseeable to him, he did not present any facts in the
district court to support his argument. He did not even deny
knowledge that his brother was filing other claims. His objections
were merely in the form of unsworn assertions, which are unreliable
and should not be considered. U.S. v. Sanders, 942 F.2d 894, 897-
98 (5th Cir. 1991). The PSR is considered reliable and may be
considered as evidence by the trial judge in making factual
sentencing determinations. Id. The evidence supporting the
finding that Lghodaro could reasonably foresee and therefore be
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held accountable for his brother's conduct was sufficiently
reliable.
ISSUE 2: Amount of loss - actual or intended loss
Lghodaro also complains that his offense level was determined
improperly based on the amount of the claims submitted to the
insurance companies instead of the actual amount paid out by the
companies. He argues that his offense level should have been based
on the $9,074.45 which he was actually paid by the insurance
companies which would have increased his offense level by two
points. Although he did not make this particular argument in the
district court, he did argue that his offense level should only be
raised by two points, presumably based on the $9,074.45 figure.
The commentary to § 2F1.1 states that "if an intended loss
that the defendant was attempting to inflict can be determined,
this figure will be used if it is greater than the actual loss."
U.S.S.G. § 2F1.1, comment. (n.7). Lghodaro seems to argue that
intended loss is only to be used if the actual loss is difficult to
determine. The use of intended loss is not so limited by the
application note.
In this case, the attempted or intended loss can easily be
determined based on the amounts of the false claims filed.
Lghodaro intended to cause a loss to the insurance companies in the
amount of $58,816.07, the total amount of false claims filed. The
fact that the insurance companies did not pay the entire amount
does not change that fact. The intended loss should be used, not
the actual loss.
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Although this Circuit has not yet addressed this issue, all of
the circuits which have discussed application note 7 to § 2F1.1
have reached the same conclusion. See U.S. v. Smith, 951 F.2d
1164, 1166-69 (10th Cir. 1991); U.S. v. Kopp, 951 F.2d 521, 535-36
(3rd Cir. 1991); U.S. v. Lohan, 945 F.2d 1214, 1218-19 (2nd Cir.
1991); U.S. v. Schneider, 930 F.2d 555, 558-59 (7th Cir. 1991);
U.S. v. Davis, 922 F.2d 1385, 1391-92 (9th Cir. 1991); U.S. v.
Johnson, 908 F.2d 396, 398 (8th Cir. 1990). The district court did
not clearly err in using the amount of intended loss rather than
the amount actually paid by the insurance companies.
ISSUE 3: Acceptance of responsibility
Lghodaro argues that the district court erred in failing to
grant him a two-level reduction for acceptance of responsibility.
He argues that failure to make voluntary restitution is only one
factor to be considered in deciding whether a defendant has
accepted responsibility, and that this should not otherwise
outweigh his acceptance of responsibility for his criminal conduct.
The probation office recommended against the two-level
reduction for acceptance of responsibility. The PSR indicates that
although Lghodaro admitted his involvement in the offense, he had
made no attempt to make restitution. He had $10,065.06 in a bank
account which he transferred to an account in another bank in
another person's name. He was untruthful to the probation officer
about this money and about his prior criminal record. The
probation officer concluded that based on his untruthfulness and
his failure to pay restitution prior to the adjudication of guilt,
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he had not clearly demonstrated acceptance of responsibility. PSR,
¶¶ 9-11. Lghodaro objected to the PSR. PSR addendum, objections
## 1 and 3.
The district court found that he was not entitled to the two-
point reduction just because he pleaded guilty. The court noted
that Lghodaro had made no effort to repay the insurance companies,
that he had transferred funds that would have been available to
repay them to an account in someone else's name, and that he did
not give any assistance to the authorities in the recovery of the
money.
The Sentencing Guidelines provide that a two-level reduction
is warranted if the defendant clearly demonstrates a recognition
and affirmative acceptance of personal responsibility for his
criminal conduct. The defendant bears the burden of proving that
he is entitled to the downward adjustment. U.S. v. Kinder, 946
F.2d 362, 367 (5th Cir. 1991), cert. denied, 112 S. Ct. 1677 (1992).
This Court's review of the district court's ruling is even more
deferential than a pure clearly erroneous standard. Id.
In determining whether a defendant qualifies for the
reduction, a court may consider whether the defendant has
voluntarily paid restitution prior to adjudication of guilt,
whether has been truthful to the authorities, and whether he has
voluntarily assisted the authorities in the recovery of the fruits
of the offense. U.S.S.G. § 3E1.1, comment. n.1(b), (c), and (e).
The district court examined Lghodaro's conduct in light of these
three considerations and found that he had failed to meet his
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burden of proving that he had accepted responsibility. Based on
the facts as set forth in the PSR, the district court's finding was
not clearly erroneous.
AFFIRMED.
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