United States v. Oladimeji Ayelotan , 917 F.3d 394 ( 2019 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-60397 FILED
March 4, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff–Appellee,
v.
OLADIMEJI SEUN AYELOTAN; FEMI ALEXANDER MEWASE; RASAQ
ADEROJU RAHEEM,
Defendants–Appellants.
Appeals from the United States District Court
for the Southern District of Mississippi
Before STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
Three Africa-based cybercriminals—Oladimeji Ayelotan, Femi Mewase,
and Rasaq Raheem—masterminded a sprawling international romance scam
that stole hearts, and money. Posing as bachelors (and bachelorettes) online,
these Nigerian nationals kindled digital romances with scores of lovelorn
Americans. The fraudsters sat at overseas computers, prowling the Internet
and spinning false promises of love and romance, ultimately duping their
unsuspecting victims into sending money to Nigeria and South Africa.
Many fauxmance swindlers escape scot-free, their victims, broke and
brokenhearted, too embarrassed to come forward. Not this time. A wary target
reported her suspicions, and the scammers didn’t fare as well in court as they
had online. After a 16-day trial, the jury convicted them, and the district court
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imposed lengthy prison sentences. This appeal alleges several errors—the
district court’s imposition of leg restraints during trial; the admission of emails
and a nonoriginal passport; the dismissal of a juror during trial; and the
sentences handed down.
Each argument is meritless, and we AFFIRM.
I. BACKGROUND
The transnational romance scam worked like this: Ayelotan, Mewase,
and Raheem—along with their coconspirators—stole personal information
such as names, Social Security numbers, credit card numbers, and bank
account numbers. They then impersonated their victims—getting cash
advances and transferring funds out of the victims’ accounts.
But they needed a safe way to transfer the fruits of their crimes. Thus
their digital dalliances. Using dating websites like “seniorpeoplemeet.com,”
well-honed conversation scripts, and step-by-step guides, the conspirators
cultivated online relationships, then sweet-talked their “paramours” into
laundering their money. Next, the conspirators would cajole their enamored
victims into becoming money mules, conduits for stolen funds, even providing
prepaid shipping labels for the swindled cash and goods.
Everything was going according to plan until one prospective money
mule grew suspicious. She reported her experience to the police, who ran it by
Homeland Security Investigations (the Department of Homeland Security’s
investigation arm). Agent Todd Williams, posing over email as the target
victim, helped unravel the whole scheme.
The district court held a 16-day trial, during which it put the three
defendants in leg restraints. The court also removed and replaced one of the
jurors.
The jury convicted Ayelotan and Raheem on several counts of conspiracy
to commit mail fraud, wire fraud, and bank fraud; conspiracy to commit
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identity theft, use of unauthorized access devices, and theft of government
property; mail fraud; and conspiracy to commit money laundering.
The jury acquitted Mewase of conspiracy to commit money laundering.
But it convicted him of conspiracy to commit mail fraud, wire fraud, and bank
fraud; and conspiracy to commit identity theft, use of unauthorized access
devices, and theft of government property.
The defendants filed post-trial motions for relief. But the district court
sentenced each defendant to the statutory maximum for each conviction,
running consecutively.
II. STANDARD OF REVIEW
The arguments raised on appeal involve varying standards of review. We
review decisions to shackle criminal defendants, admit evidence, and remove
jurors for abuse of discretion. 1 And it is an abuse of discretion to apply an
erroneous view of the law or to clearly err in assessing evidence. 2 We review
alleged Confrontation Clause violations de novo. 3
As for sentencing, we review fact findings for clear error and application
of the Sentencing Guidelines de novo. 4 And as the Supreme Court requires, we
review the substantive reasonableness of sentences for abuse of discretion. 5
Finally, the Supreme Court directs us to review arguments raised for the
first time on appeal for plain error. 6 In Puckett, the Court elaborated that
under this standard of review, defendants must first establish an error. 7 Next,
1 United States v. Ebron, 683 F.3d 105, 125 (5th Cir. 2012); United States v. Yi, 460
F.3d 623, 634 (5th Cir. 2006); United States v. Hope, 102 F.3d 114, 117 (5th Cir. 1996).
2 United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005).
3 United States v. Morgan, 505 F.3d 332, 338 (5th Cir. 2007) (per curiam).
4 United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007).
5 Gall v. United States, 552 U.S. 38, 51 (2007).
6 Puckett v. United States, 556 U.S. 129, 135 (2009).
7 Id.3
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they must show that it’s clear or obvious. 8 Then, they must prove that the error
affected their substantial rights. 9 And if they satisfy these three prongs, we
may correct the error—if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” 10
III. DISCUSSION
Ayelotan, Raheem, and Mewase bring assorted challenges—none
availing—to their convictions and sentences:
• Ayelotan and Raheem—the shackling of their legs during trial
• Raheem and Mewase—the admission of various emails and
Mewase’s nonoriginal passport
• Ayelotan and Mewase—the dismissal of a juror
• All three defendants—their sentences
A. Shackling the defendants at trial was not an abuse of discretion.
Ayelotan and Raheem claim that shackling their legs violated their due
process rights. As the Supreme Court explained 14 years ago in Deck, the Fifth
and Fourteenth Amendments’ due process clauses require courts to have a
“particular reason” for shackling; “only in the presence of a special need.” 11 And
the Court forbids visible restraints altogether unless “justified by an essential
state interest” specific to that trial. 12
What reasons are enough? Some 25 years ago, in Wilkerson, we held that
courts may shackle defendants when there’s a danger of harm or escape. 13 As
we said then, “[w]e do not underestimate the need to restrain dangerous
defendants to prevent courtroom attacks, or the need to give trial courts
8 Id.9 Id.10 Id. (cleaned up).
11 Deck v. Missouri, 544 U.S. 622, 626–28 (2005).
12 Id. at 628–29 (quoting Holbrook v. Fynn, 475 U.S. 560, 568–69 (1986)).
13 Wilkerson v. Whitley, 16 F.3d 64, 68 (5th Cir. 2003).
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latitude in making individualized security determinations.” 14 And a few years
before that, in Ellender, we stated that district courts “may rely heavily on the
U.S. Marshal’s advice” in considering restraints. 15
Here, the court had valid reasons: Ayelotan and Raheem posed a danger.
And the facts show that. For example, at Ayelotan’s extradition hearing, he
and other defendants caused such a ruckus that SWAT had to be called in. The
district court stressed this concern. And given the extradition escapades, the
U.S. Marshals expressed unease too—recommending that the court restrain
the defendants at trial. The court had a valid, particularized reason for
shackling the defendants.
Plus, the defendants’ restraints weren’t visible. Neither Ayelotan nor
Raheem even claim that the restraints were visible. Neither defendant raises
any evidence suggesting that the jury saw the restraints. And Raheem asserts
merely that it’s impossible to be sure that a juror never saw him in shackles.
In sum, the district court had compelling reasons for shackling the
defendants, and there’s no evidence the jury even saw the restraints. And so
the district court didn’t violate the defendants’ due process rights.
B. The emails and copy of Mewase’s passport were admissible.
At trial, the Government admitted oodles of emails that the defendants
sent to their romantic targets. These emails all came from Google and Yahoo!
accounts. And they revealed the defendants’ fraudulent activities. They also
included instructions for money mules to send cash and progress updates on
their various schemes. 16 The defendants filed pretrial objections to admission
of the emails. But the district court held that the emails and transmittal
14 Id.15 United States v. Ellender, 947 F.2d 748, 760 (5th Cir. 1991).
16 Id.5
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records, accompanied by Google and Yahoo! records-custodian certificates,
were admissible self-authenticating business records.
On appeal, Raheem and Mewase challenge the admission of these emails
and records under the Federal Rules of Evidence and the Confrontation
Clause. Mewase also contends that admission of a duplicate copy of his
passport identification page violated the Best Evidence Rule. Both challenges
fail.
1. Federal Rules of Evidence
The Federal Rules of Evidence ban hearsay—out-of-court statements
made to prove the truth of what’s asserted. 17 But there are exceptions. Here,
each email represented two “statements” for purposes of the Federal Rules of
Evidence. First was the transmittal certificate—effectively, the email
provider’s statement that one user wrote and sent a message to another user
at the recorded time. Second, the content of each email is also a statement. We
take them in that order.
The Federal Rules of Evidence except business records from hearsay. 18
To qualify, a records custodian with knowledge must testify unless they’re
“self-authenticating.” 19 Records are self-authenticating if they include a
custodian certification that the records “meet[] the requirements of Rule
803(6)(A)–(C).” 20
All the email records from this conspiracy included certificates. The
certificates stated that Google or Yahoo! recorded the transmittal data
automatically when users send emails, as part of the regular practice of a
FED. R. EVID. 801(c) (“‘Hearsay’ means a statement that: (1) the declarant does not
17
make while testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement.”).
18 FED. R. EVID. 803(6).
19 FED. R. EVID. 803(6); FED. R. EVID. 902(11).
20 FED. R. EVID. 902(11).
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regularly conducted business activity. This satisfies Rule 803(6)’s
requirements for admission. 21 As we explained in our 1991 Wilson decision,
certificates from a records custodian that “track the language of Rule 803(6)
nearly word for word” render the records self-authenticating. 22 Thus, the
district court didn’t abuse its discretion by finding a valid hearsay exception
for the certificates.
The second possible hearsay is the emails’ substantive content: the
messages between the defendants and their coconspirators. But these were
admissible too. The Government didn’t offer these statements to prove the
content of them. 23 Same with the e-mule messages.
Rather, these statements were “the operative words of [the] criminal
action”—what we called “paradigmatic nonhearsay” in our 1981 case Jones. 24
The remaining content in the emails—updates between the coconspirators
about their criminal scheme—was admissible as opposing party and
coconspirator statements under Rule 801(d). 25
21 FED. R. EVID. 803(6) (“The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness: A record of an act, event,
condition, opinion, or diagnosis if: (A) the record was made at or near the time by—or from
information transmitted by—someone with knowledge; (B) the record was kept in the course
of a regularly conducted activity of a business, organization, occupation, or calling, whether
or not for profit; (C) making the record was a regular practice of that activity; (D) all these
conditions are shown by the testimony of the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12) or with a statute permitting certification;
and (E) the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness.”).
22 Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 272 (5th Cir. 1991).
23 FED. R. EVID. 801(c)(2).
24 United States v. Jones, 663 F.2d 567, 571 (5th Cir. 1981).
25 FED. R. EVID. 801(d)(2) (“A statement that meets the following conditions is not
hearsay: . . . The statement is offered against an opposing party and: (A) was made by the
party in an individual or representative capacity; (B) is one the party manifested that it
adopted or believed to be true; (C) was made by a person whom the party authorized to make
a statement on the subject; (D) was made by the party’s agent or employee on a matter within
the scope of that relationship and while it existed; or (E) was made by the party’s
coconspirator during and in furtherance of the conspiracy.”).
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2. Confrontation Clause
Our Confrontation Clause analysis resembles our Federal Rules of
Evidence analysis. And likewise, the district court didn’t misstep in admitting
the emails and records.
In 2004, the Supreme Court held in Crawford that the Confrontation
Clause prohibits admitting out-of-court statements as evidence against
defendants in a criminal case unless they can cross-examine the declarant. 26
But that prohibition applies only if the statements are “testimonial.” 27
And two years later in Davis, the Court explained that statements are
“testimonial” if their “primary purpose . . . is to establish or prove past events
potentially relevant to later criminal prosecution.” 28 Or as the Court explained
in Melendez-Diaz three years after that, business records must be “for the
administration of the [business’s] affairs and not for the purpose of
establishing or proving some fact at trial.” 29
Under this framework, Google and Yahoo!’s transmittal-data records
aren’t testimonial. Consider our Towns decision in 2013. 30 There, we
considered a pharmacy’s prescription-purchase logs. 31 We held that those
weren’t testimonial. 32 Rather, the pharmacy recorded those logs “ex ante to
comply with state regulatory measures, not in response to active
prosecution.” 33 It’s the same with Google and Yahoo! They didn’t create the
26 See Crawford v. Washington, 541 U.S. 36, 51–53 (2004).
27 Id.28 Davis v. Washington, 547 U.S. 813, 822 (2006); see also United States v. Duron-
Caldera, 737 F.3d 988, 992–93 (5th Cir. 2013) (quoting Davis for that proposition).
29 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009).
30 United States v. Towns, 718 F.3d 404, 411 (5th Cir. 2013).
31 Id.32 Id.33 Id.8
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records to prove a particular fact at a particular trial—let alone this trial. The
records are admissible as far as the Confrontation Clause goes.
So are the coconspirator statements. Take our 2011 decision in
Jackson. 34 In that case, we explained that—as a general matter—
“coconspirator statements made during the course and in furtherance of a
conspiracy” aren’t testimonial. 35 So the district court didn’t violate the
defendants’ Confrontation Clause rights by admitting this evidence.
3. Best Evidence Rule
Mewase also contends that the passport copy was inadmissible under the
Best Evidence Rule. True, the Federal Rules of Evidence require using “[a]n
original writing, recording, or photograph” as evidence of that item’s contents
at trial. 36 But the Rules clarify that “[a] duplicate is admissible to the same
extent as the original unless a genuine question is raised about the original’s
authenticity or the circumstances make it unfair to admit a duplicate.” 37
Mewase’s original passport went missing during his extradition. And
Mewase acknowledges that it wasn’t the Government’s fault. Even so, he still
claims that relying on the duplicate isn’t fair. And yet he doesn’t explain why.
So the district court didn’t abuse its discretion in admitting the duplicate.
C. The district court properly removed and replaced Juror 20.
Ayelotan and Mewase contend that the district court’s decision to remove
Juror 20 violated their due process rights. We review the removal and
replacement of a juror for abuse of discretion. 38 And as we explained in
34 United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011).
35 Id.36 FED. R. EVID. 1002.
37 FED. R. EVID. 1003.
38 United States v. Huntress, 956 F.2d 1309, 1312 (5th Cir. 1992).
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Huntress, a court may not dismiss a juror “without factual support or for a
legally irrelevant reason.” 39
The Federal Rules of Criminal Procedure allow a judge to remove jurors
who cannot perform their duties. 40 We explained what that means long ago.
Forty-plus years ago in Smith, we held that “a juror who cannot remain awake
during much of the trial is unable to perform his duty.” 41 And in 2002, we
explained in Edwards that other good reasons for removal include a “lack of
candor” and an “inability or unwillingness to follow instructions.” 42
Here, the district court identified legally relevant reasons for removing
Juror 20. The juror slept through witness testimony; misrepresented this fact
to the district court when asked; didn’t understand, or else didn’t follow, the
jury instructions; and didn’t deliberate.
Ample evidence supported these legitimate reasons. Near the end of the
first day of jury deliberations, the foreperson delivered two notes to the court:
We have one person that is undecided, and we [cannot] get an
answer from him.
One, we have a juror that has admitted that he slept through some
of the testimony; two, he doesn’t believe you can’t go to Western
Union and pick up transaction, his opinion/own notation; three, he
refuses to follow the judge’s instruction.
After reviewing the notes, the court called in the foreperson, Juror 20, and
every other juror one at a time.
When the district court asked Juror 20 about sleeping through the trial,
he admitted that he may have “nodded off.” But he said that if he did, “it was
very minimal.” Yet his fellow jurors testified otherwise. Some said that Juror
39 Id.40 FED. R. CRIM. P. 24(c) (permitting removal of jurors who are “unable to perform or
are disqualified from performing their duties”).
41 United States v. Smith, 550 F.2d 277, 285 (5th Cir. 1977).
42 United States v. Edwards, 303 F.3d 606, 631–32 (5th Cir. 2002).
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20 admitted that he “was asleep some of the time, so [he] may have missed
things.” And others said he confessed that “he may not have heard everything
he needed to hear” since he fell asleep.
Many jurors even said they saw him sleeping more than just a “minimal”
amount, including his neighboring juror:
I sat next to [Juror 20], I noticed that there was quite a few times,
a lot of times, that I would look over and notice that he was
asleep. . . . It was more than once a day . . . . I do believe that it
was enough to miss key information.
And several other jurors believed that Juror 20 simply couldn’t follow the law.
Juror 19, for example, testified that the jury pointed out specific
instructions to Juror 20, which “he refused to follow”—e.g., “considering only
the evidence presented” and following “the law that’s in the instructions.”
Another juror questioned Juror 20’s comprehension: “He spent three hours
reading [the Court’s] instructions yesterday, and he got to Page 5. We’ve tried
to talk to him, and he just refuses.”
Based on this evidence, the district court removed Juror 20. But Ayelotan
and Mewase argue that the court really removed Juror 20 because he was a
“hold-out”; because he “clearly questioned Mr. Ayelotan’s guilt.” True, Juror 20
resisted convicting. Yet as we noted in Edwards, even “hold-out jurors are not
immune from dismissal based upon just cause.” 43
The district court had legitimate reasons to dismiss Juror 20. And there
was strong factual support for those legitimate reasons. Removing Juror 20
was not an abuse of discretion.
D. Sentencing Challenge
The district court sentenced Ayelotan, Raheem, and Mewase to
practically interminable prison terms. The court calculated the total intended
43 Edwards, 303 F.3d at 634.
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loss of their scheme: over $25 million. At a joint sentencing hearing, the court
heard testimony from a postal inspector and two case agents from Homeland
Security Investigations. They testified on the loss amount and the defendants’
roles.
For Ayelotan, the court imposed a 22-level increase for the intended loss.
And it imposed a 4-level enhancement for his leadership role. This came to a
total Guidelines offense level of 43. Given Ayelotan’s criminal history, his
Guidelines sentence was life imprisonment. The court reduced that to the
within-Guidelines statutory maximum of 95 years. 44 And it sentenced Ayelotan
to that.
For Raheem, the court also assigned a total offense level of 43 for the
intended loss and his leadership role. His initial sentencing range was life
imprisonment too. But the court again decreased it. His within-Guidelines
statutory maximum was 115 years. 45 And the court sentenced him to that.
Finally, for Mewase, the court also applied the same 22-level increase for
the intended loss. The resulting Guidelines range was 262 to 327 months. The
court reduced that to 262 to 300, the statutory maximum. The court then
sentenced him to 25 years.
All three defendants now challenge their sentences on various grounds.
1. Leadership Enhancement
On appeal, Ayelotan and Raheem object to their leadership
enhancements. 46 And Ayelotan says that the court should’ve given him a
minor-role reduction.
As we explained in Hebert, the preponderance of the evidence must show
that the defendant was “the organizer or leader of a criminal activity that
44 See U.S. SENTENCING GUIDELINES MANUAL § 5G1.2(b).
45 See id.
46 Id. § 3B1.1(a).
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involved five or more participants or was otherwise extensive.” 47 We will
reverse the enhancement only if the district court clearly erred. 48
To begin with, the district court found—and the trial evidence
supported—that this was a major criminal undertaking. It involved far more
than five participants. As for leadership, the commentary to § 3B1.1 lists
factors for assessing a defendant’s role:
• the exercise of decision-making authority;
• the nature of participation in the commission of the offense;
• the recruitment of accomplices;
• the claimed right to a larger share of the fruits of the crime;
• the degree of participation in planning or organizing the
offense;
• the nature and scope of the illegal activity;
• and the degree of control and authority exercised over others. 49
The commentary also clarifies that more than one person can qualify as a
leader of the same criminal group. 50
Ayelotan argues that the second superseding indictment proves that his
role was “peripheral in substance” and “peripheral in duration.” He claims that
the only accusation against him was that he emailed shipping-label
information.
But the district court specifically relied on several § 3B1.1 factors in
determining leadership roles. At sentencing, the court heard testimony from
case agent Williams. Agent Williams testified that Ayelotan was among the
“top people within the group of indicted defendants.” Williams asserted that
47 See United States v. Hebert, 813 F.3d 551, 560 (5th Cir. 2015).
48 Id.49 U.S. SENTENCING GUIDELINES MANUAL § 3B1.1 cmt. 4.
50 Id.
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Ayelotan was a “central hub to a number of other co-conspirators on a daily
basis.” Agent Williams also identified Raheem as one of four coconspirators “at
the top of th[e] hierarchy.”
Williams based this on their time spent on the conspiracy, their day-to-
day involvement, and the number of coconspirators who reported to them. The
district court relied on this testimony. And it determined that Ayelotan “was
involved in almost every scam involved in the offense”; that he “participated in
planning or organizing it”; and that he directly controlled other conspirators.
Similarly, the court credited Williams’s testimony on Raheem’s leadership in
the organization.
The district court did not clearly err considering the evidence before it—
not with Ayelotan and not with Raheem.
2. Eighth Amendment
Now for the first time on appeal, Ayelotan and Raheem raise an Eighth
Amendment argument. They assert that effective life sentences for nonviolent
crimes are cruel and unusual punishment. We review arguments raised for the
first time on appeal for plain error. 51 Although Ayelotan acknowledges the
plain-error standard, he never briefed anything beyond the first step of the
plain-error test: whether an error occurred.
Yet even if Ayelotan had sufficiently briefed the other steps of the plain-
error analysis, he still wouldn’t be entitled to relief. Yes, in extraordinary
cases, term-of-years sentences can be cruel and unusual. In 1992, we held in
McGruder that sentences violate the Eighth Amendment when they’re “grossly
disproportionate” to the convicted conduct. 52
51 E.g., United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
52 McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992).
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But as we’ve explained before, this review is narrow. In our 2016 case
Mills, we underscored that a reviewing court may not “substitute its judgment
for that of the legislature nor the sentencing court.” 53 And four years before
that, in Looney, we acknowledged that under Supreme Court precedent,
“successful Eighth Amendment challenges to prison-term lengths will be
rare.” 54
Ayelotan maintains that an effective life sentence for a nonviolent,
financial crime is—by definition—grossly disproportionate. Yet he cites no
cases finding that lengthy sentences for financial crimes violate the Eighth
Amendment. He cites only to the Supreme Court’s 2010 decision in Graham 55
and its 1992 decision in Robinson. 56
But in Graham, the Supreme Court limited its decision to life sentences
for minors. 57 And in Robinson, the Court held that a law criminalizing
narcotics addiction was unconstitutional. 58 The Court struck down the law
because its purpose was to stigmatize addicts; not because the sentence was
too long. 59 Neither decision applies here.
Yet our decision in Mills does apply. There, we held that “the Guidelines
are a convincing objective indicator of proportionality.” 60 And in Looney, we
upheld effective life sentences for the nonviolent offenses of possession with
intent to distribute methamphetamine and possession of firearms. 61
53 United States v. Mills, 843 F.3d 210, 218 (5th Cir. 2016) (citations omitted).
54 United States v. Looney, 532 F.3d 392, 396 (5th Cir. 2008).
55 See generally Graham v. Florida, 560 U.S. 48 (2010).
56 See generally Robinson v. California, 370 U.S. 660 (1992).
57 See Graham, 560 U.S. at 81.
58 Robinson, 370 U.S. at 677.
59 Id. at 677 & n.5.
60 Mills, 843 F.3d at 218.
61 Looney, 532 F.3d at 396.
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Ayelotan’s and Raheem’s within-Guidelines sentences didn’t violate the
Eighth Amendment. The district court did not err, plainly or otherwise.
3. Intended Loss Calculation
Raheem and Mewase challenge the intended loss calculation of over $25
million. In 2012, we laid out the rule for calculating intended losses in Hebron:
“The applicable loss is generally the greater of actual loss—which includes only
reasonably foreseeable harm resulting from the fraud—and intended loss—
which includes the harm intended to result from the offense.” 62 And district
courts need only make “a reasonable estimate of the loss” based on the
evidence. 63
We review these calculations for clear error. 64 In Hull, we explained that
we review the foreseeability of the loss for clear error too. 65 Then in Sanders,
we established that we review the loss calculation itself for clear error. 66 We
won’t overturn these factual findings “unless they are implausible in light of
the record as a whole.” 67
Raheem retorts that the record doesn’t show that they “intended to inflict
a loss” of $25 million or more. First, that misstates the standard. The
Sentencing Guidelines don’t require the defendant to have intended the
specific loss amount. 68 Instead, the district court simply has to conclude that
the defendant knew or reasonably should have known that the scheme would
cause the harm. 69
62 United States v. Hebron, 684 F.3d 559, 560 (5th Cir. 2012); see also United States v.
Fairley, 880 F.3d 198, 215 (5th Cir. 2018) (quoting Hebron).
63 Id. (citing U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. n.3(C)).
64 Id.
65 United States v. Hull, 160 F.3d 265, 269 (5th Cir. 1998).
66 United States v. Sanders, 343 F.3d 511, 519 (5th Cir. 2003).
67 Id.68 U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. 3.
69 Id.
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And the district court relied on testimony that showed this: “Mr. Raheem
and Mr. Ayelotan were directly involved in most, if not all of [the activity used
to calculate the loss amount], and to the extent they were not directly involved,
it was certainly reasonably foreseeable to them as part of the jointly
undertaken criminal activity which was part and parcel to this conspiracy.”
Second, the record does show that the intended loss was over $25 million.
The district court considered the PSR’s calculations. And it heard testimony
from the postal inspector and two case agents. Based on that, the court
calculated the loss at $52 million.
Finally, Raheem disputes the district court’s determination that there
were at least 37,817 credit cards involved in the conspiracy. Rather, Raheem
urges that “there is no information all of the alleged credit cards were real.”
Yet the district court heard specific evidence suggesting that the credit card
numbers corresponded to real accounts. For example, Williams testified that
the first six numbers on the cards—generally identifying the financial
institutions—matched with real institutions; and that the stolen information
included three-digit CVV codes on the back of each card.
In any event, Raheem and his coconspirators’ intended to get their hands
on valid credit card numbers. Otherwise, their scheme could bear no fruit.
Phony credit cards won’t even buy you Monopoly Money—let alone cash
advances. Even if some card numbers were fake, that wouldn’t matter. Again,
their intent dictates the intended loss.
4. Substantive Reasonableness of Sentence
Finally, Raheem and Mewase contend that their sentences are
substantively unreasonable. But in 2009, we reiterated in Cooks that we
presume a within-Guidelines-range sentence is reasonable. 70 And we tend to
70 United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (cleaned up).
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defer to the sentencing court. As we noted in our 2011 decision in Scott, “the
sentencing court is in a better position to find facts and judge their import
under the § 3553(a) factors.” 71
To rebut the presumption, a defendant must show one of three things:
(1) the court failed to consider a factor that it should’ve given significant
weight; (2) the court gave significant weight to an irrelevant or improper factor;
or (3) the court clearly erred in balancing sentencing factors. 72
Raheem argues that his sentence exceeds the aim of the § 3553(a)
sentencing factors. But his sentence was within-Guidelines. So it’s presumed
reasonable. And here, Raheem hasn’t rebutted that presumption.
The district court detailed its justifications and discussed the § 3553(a)
factors. The court noted that Raheem was “a leader or organizer” in “a broad
and wide-reaching and extensive conspiracy involving criminal conduct that
went on for a number of years”; one that “involved the manipulation and taking
advantage of, whether financially or otherwise, a large number of victims.”
Mewase argues that his sentence is unreasonable because of
“unwarranted sentencing disparities” between him and some coconspirators
who pleaded guilty. But this doesn’t rebut the presumption of reasonableness
either. Mewase offers no proof that he was so similarly situated to
coconspirators who received lesser sentences that the disparities are
“unwarranted.” Nor does the PSR suggest that. Rather, many other
coconspirators played much smaller roles, accepted responsibility, or
cooperated with the Government.
In sum, we have consistently declined to merely reweigh the sentencing
factors. Yes, Raheem’s within-Guidelines sentence is severe. But the district
71 United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011) (internal quotation marks
and citation omitted).
72 Id.18
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court weighed the appropriate factors. And its sentence isn’t substantively
unreasonable. The district court also grounded Mewase’s sentence in an in-
depth consideration of the § 3553 factors. So neither sentence is substantively
unreasonable.
IV. CONCLUSION
The district court committed no error, and we AFFIRM in all respects.
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