United States v. Olayinka Sunmola , 887 F.3d 830 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-1299
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OLAYINKA I. SUNMOLA,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:13-cr-30272-DRH-1 — David R. Herndon, Judge.
ARGUED JANUARY 19, 2018 — DECIDED APRIL 16, 2018
Before BAUER, MANION, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. A grand jury charged Olayinka
Sunmola with an eight-count indictment in relation to an
online dating scheme. Three days into trial, Sunmola pleaded
guilty to all eight counts. Applying a number of enhancements
and taking into consideration other § 3553(a) factors, the
district court sentenced Sunmola to 324 months in jail with an
2 No. 17-1299
adjusted restitution payment of $1,669,050.98. Sunmola now
appeals the district court’s application of four sentencing
enhancements, restitution calculation, and application of
general deterrence in his final sentencing. For the following
reasons, we affirm.
I. BACKGROUND
Starting in March 2008, Sunmola carried out an interna-
tional online romance scheme from the Republic of South
Africa, targeting middle-aged women in the United States,
specifically in Georgia and Illinois. Sunmola and his co-
conspirators created profiles on dating websites under ficti-
tious names and led women to believe they were successful
businessmen. Sunmola often used pictures of men in U.S.
military uniforms as part of his online profile. After gaining the
women’s trust, Sunmola and his co-conspirators would ask for
money and merchandise. These women would ship electronics
and make electronic fund transfers under the false claims of
financial distress.
In some instances, Sunmola sexually exploited the victims.
He persuaded one woman to pose in a sexually suggestive
manner in front of a web camera. Unbeknownst to the victim,
he recorded her, posted the video to the internet, and sent a
link to her and her relatives with an extortion demand,
promising that “by the time he was finished with her she
would want to kill herself.” He posted nude photos obtained
from another woman online, and threatened to post photos of
a third woman. During the investigation, authorities also
discovered evidence of credit card fraud affecting various
businesses.
No. 17-1299 3
On November 20, 2013, a grand jury sitting in the Southern
District of Illinois charged Sunmola in an eight-count indict-
ment with conspiracy, in violation of 18 U.S.C. § 371 (Count
One); mail fraud, in violation of 18 U.S.C. §§ 1341 and 1342
(Counts Two through Four); wire fraud, in violation of 18
U.S.C. §§ 1343 and 1342 (Counts Five through Seven); and
interstate extortion, in violation of 18 U.S.C. § 875(d) (Count
Eight).
On August 9, 2014, authorities arrested Sunmola while he
was traveling in London and transferred him to the custody of
the United States on February 26, 2015. His initial appearance
and arraignment were held on March 4, 2015. He then waived
his rights to a detention hearing and was ordered detained
pending trial.
Trial commenced on February 29, 2016. Three days into
trial, Sunmola openly pleaded guilty to all counts. The judge
asked Sunmola questions to ensure he knowingly and volun-
tarily entered the pleas. The Government established a factual
basis for the pleas, Sunmola admitted to the essential elements
of each offense, and the judge accepted the guilty pleas without
a plea agreement. The probation officer filed the initial PSR
on July 8, 2016. However, through a series of objections and
amendments, the parties were working from the fifth amended
PSR when Sunmola’s sentencing hearing was scheduled to be
held.
Both parties and the district court agreed that the sentenc-
ing hearing should be held in two stages. On August 12, 2016,
the Government presented its evidence, including victim
impact testimony and expert testimony on the psychological
4 No. 17-1299
impact of Sunmola’s scheme on the victims. On February 2,
2017, the district court held the second half of the sentencing
hearing where the Government’s case agent, United States
Postal Inspector Adam Latham, testified under oath. Latham
verified the factual accuracy of the Government’s sentencing
memorandum, the Government’s responses to Sunmola’s
objections to the PSR, and an addendum to the PSR containing
39 additional victims’ losses.
After all the testimony and evidence was presented, the
judge considered and overruled each of Sunmola’s outstanding
PSR objections, largely adopting the findings of the probation
officer and, in some instances, the Government’s responses.
The judge applied a four-level leadership enhancement, a two-
level enhancement for acting on behalf of a government
agency, a four-level substantial financial hardship enhance-
ment, a two-level vulnerable victim enhancement, a 16-level
enhancement for an intended loss of $2,054,972.66, and a two-
level enhancement due to Sunmola committing the offense
outside of the United States. With a base offense level of seven,
the application of the enhancements resulted in a total adjusted
offense level of 37 and with no prior convictions, a category I
criminal history.
The judge also granted two upward departures the Govern-
ment requested, one for psychological injury to a victim and a
second for gratuitous infliction of injury to a victim. These
upward variances resulted in a Guidelines range of 262 to 327
months. The Government advised the judge that the clerk of
the court had possession of $220,000 liquidated assets. The
defendant then gave a brief allocution.
No. 17-1299 5
Before making a final determination, the judge noted the
importance of general deterrence due to Sunmola’s continued
contact with individuals in Nigeria. Taking everything into
consideration, the judge sentenced Sunmola to 324 months’
imprisonment and ordered restitution in the amount of
$1,707,260.98. The district court later amended the judgment to
$1,669,050.98 to match the amount stated in the PSR.
Sunmola now appeals: the four-level “substantial financial
hardship” enhancement (U.S.S.G. § 2B1.1(b)(2)(B)); the two-
level “vulnerable victim” adjustment (U.S.S.G. § 3A1.1(b)(1));
the two-level enhancement for acting on behalf of a govern-
ment agency (U.S.S.G. § 2B1.1(b)(9)(A)); the four-level aggra-
vating role adjustment for acting as the organizer or leader
(U.S.S.G. § 3B1.1(a)); the loss calculation (U.S.S.G.
§ 2B1.1(b)(1)(I)); and the application of general deterrence
under § 3553(a).
II. DISCUSSION
A. Enhancement Objections
We review a district court’s legal interpretation of the
Sentencing Guidelines de novo, and its factual determinations
underlying the application of the Guidelines for clear error.
United States v. Harper, 766 F.3d 741, 744 (7th Cir. 2014). “A
district court may draw reasonable inferences from the
record.” United States v. Minhas, 850 F.3d 873, 878 (7th Cir.
2017).
6 No. 17-1299
1. Substantial Financial Hardship Enhancement
Under § 2B1.1(b)(2)(B)
Sunmola argues that the district court improperly applied
the four-level “substantial financial hardship” enhancement
due to insufficient and unsubstantiated facts. Section
2B1.1(b)(2)(B) applies if the offense resulted in “substantial
financial hardship to five or more victims.” Factors to consider
when applying this enhancement listed in § 2B1.1’s Application
Note 4(F) include: insolvency, bankruptcy, substantial loss to
savings, substantial changes to employment or living circum-
stances, and substantial harm to the ability to obtain credit.
In Minhas, the defendant defrauded people by booking
vacations, only to cancel the trips without the victims’
knowledge. 850 F.3d at 875. At sentencing, the district court
relied on trial testimony and victim impact statements in
finding the substantial financial hardship enhancement
appropriate. Id. at 878. The defendant argued that the district
court lacked “sufficient evidence from which to infer that the
victims were in similar economic positions.” Id. While we face
a slightly different issue, whether the judge had sufficient
evidence to substantiate his findings, rather than analyzing the
victims’ economic positions, we find Minhas instructive.
Here, the court adopted the findings in the PSR, which
listed seven victims who suffered substantial financial hard-
ship. Some of these victims testified at trial and others submit-
ted victim impact statements. All of these victims reported a
loss of at least one, if not more, of the enumerated factors
under the Application Note. Sunmola specifically argues that
much of the evidence the judge relied on was not verified by
No. 17-1299 7
the Government as true. However, “evidentiary standards at
sentencing are more relaxed than at trial.” Id. The district court
has great latitude in making factual determinations and may
draw conclusions from evidence presented at a sentencing
hearing. Id. (see also United States v. Halliday, 672 F.3d 462, 475
(7th Cir. 2012)). “We require only that the information consid-
ered has sufficient indicia of reliability to support its probable
accuracy.” United States v. Statham, 581 F.3d 548, 553 (7th Cir.
2009). With this discretion afforded to the district court, and
having relied on the same form of evidence in Minhaus, we find
the district court made appropriate factual findings from the
testimony and victim impact statements.
Sunmola also argues he lacked an opportunity to effectively
investigate and contest the claims made against him. However,
Sunmola had the original PSR, which contained these findings,
six months before his sentencing hearing, giving him more
than sufficient time to effectively investigate these claims.
Thus, the district court did not clearly err in applying the
“substantial financial hardship” enhancement.
2. Vulnerable Victims Enhancement Under
§ 3A1.1(b)(1)
Sunmola next argues the district court erroneously applied
the “vulnerable victims” enhancement. Section 3A1.1’s
Application Note 2 defines a “vulnerable victim” as “a person
… who is unusually vulnerable due to age, physical or mental
condition, or who is otherwise particularly susceptible to the
criminal conduct.” The Note gives two examples of when the
adjustment should apply, both of which are instances where
the defendant targets specific victims. U.S.S.G. § 3A1.1 cmt. n.2.
8 No. 17-1299
In contrast, the Note states the enhancement is not applicable
in cases where the defendant targeted “the general public and
one of the victims happened to be” particularly vulnerable. Id.
The Government directs us to United States v. Iriri, a similar
case involving an online dating scheme. 825 F.3d 351 (7th Cir.
2016). In Iriri, the defendant’s victims ranged from 47 to 71
years old. Id. at 352. We specified that “the guideline enhance-
ment is limited to the ‘unusually’ vulnerable victim,” and
reasoned that, “[a]ge, lack of sophistication, and personal loss
… on the part of the victims, coupled with the defendant’s
skillful employment of electronic media, rendered her targets
helpless—proof they were unusually vulnerable.” Id. Sunmola
argues Iriri focused solely on the elderly as “vulnerable
victims” and, thus makes the case inapplicable. We disagree.
Sunmola and his co-conspirators chose the women they
developed relationships with, specifically targeting women
they believed would be susceptible to their deceitful tactics.
Many of these women had been divorced, abandoned, wid-
owed, or ignored by the men in their lives. One victim was 55
years old and recently divorced from her husband of 20 years.
Two victims were recent widows, one with cancer. Another, a
66-year-old living on social security, had been abused by her
first husband and abandoned by her second. And another was
a divorced, single parent living on disability due to partial
blindness from a gunshot wound.
We acknowledge most of the targeted women were middle-
aged rather than elderly, however we do not find this conclu-
sive. These women were seeking companionship through
online dating, making them particularly susceptible to falling
No. 17-1299 9
into the vicious trap of a man who deceitfully made them
believe they were in love. Their prior relationships left these
women unusually vulnerable to falling for Sunmola and his co-
conspirators’ deceitful tactics. Therefore, we find that the
district court did not err in finding the two-level “vulnerable
victim” enhancement applicable here.
Sunmola also argues that the judge improperly imposed
U.S.S.G. § 3A1.1(b)(2)’s two-level “vulnerable victim” enhance-
ment due to § 2B1.1(b)(2)(B)’s four-level “substantial financial
hardship” imposed. While the Government concedes they
originally requested a four-level “vulnerable victim” enhance-
ment under § 3A1.1(b)(2), the record on appeal clearly indi-
cates the Government retracted this request and instead,
agreed with the two-level “vulnerable victim” application of
§ 3A1.1(b)(1). Thus, we affirm the district court’s application of
the two-level “vulnerable victim” enhancement.
3. Acting on Behalf of a Governmental Agency
Enhancement Under § 2B1.1(b)(9)(A)
Next, Sunmola argues the district court erroneously applied
a two-level enhancement for acting on behalf of a government
agency. For fraud crimes, a two-level enhancement applies if
the offense involved “a misrepresentation that the defendant
was acting on behalf of a charitable, educational, religious, or
political organization, or a government agency.” U.S.S.G.
§ 2B1.1(b)(9)(A). Section 2B1.1’s Application Note 8(B) states
that this section applies “in any case in which the defendant
represented that the defendant was acting to obtain a benefit
on behalf of … a government agency … when, in fact, the
defendant intended to divert all or part of that benefit.”
10 No. 17-1299
Sunmola argues that he used his false military status to
impress his victims, not for the purpose of obtaining a benefit
on behalf of the military or other government organization. We
disagree.
The record indicates several instances where Sunmola
misrepresented that he was acting on behalf of the military.
Sunmola led the victims to believe the money or equipment
they sent overseas would be used for work-related purposes,
specifically to complete work for, or on behalf of, the U.S.
government. In some instances, Sunmola pretended to be an
American soldier, stranded in Nigeria on a mission and in need
of help. In other instances, Sunmola held himself out as a
colonel in the U.S. Army deployed to South Africa, telling his
victims he needed them to purchase and ship computer
equipment to him to help him finish his assignments. When
pressed about his work, he would send the victims articles
about “U.S. led efforts” to combat radical Islamic terrorism in
South Africa stating, “[t]hat’s what I do.” Sunmola clearly
misrepresented to his victims that he was acting on behalf of,
and their contributions were going towards, the U.S. military.
He also argues that the Government’s theory of the case is
that Sunmola engaged in a romance scheme, not a scheme
based on misrepresentation of military involvement. The
Government’s theory of the case is irrelevant as to whether the
enhancement applies under the Guidelines. Thus, the district
court did not err in applying this enhancement.
No. 17-1299 11
4. Organizer or Leader Enhancement Under
§ 3B1.1(a)
Sunmola also appeals the district court’s application of a
four-level enhancement for acting as an organizer or leader for
the online dating scheme. Under the Sentencing Guidelines, a
four-level enhancement is appropriate “[i]f the defendant was
an organizer or leader of a criminal activity that involved five
or more participants or was otherwise extensive.” U.S.S.G.
§ 3B1.1(a). Section 3B1.1’s Application Note 4 lists factors
courts should consider “[i]n distinguishing a leadership and
organizational role from one of mere management or supervi-
sion.” These factors include: the exercise of decision making
authority; the nature of the defendant’s participation; the
recruitment of accomplices; claimed rights to a larger portion
of the fruits of the crime; the degree of participation in plan-
ning or organizing; the nature and scope of the crime; and the
degree of control or authority exercised over others. U.S.S.G.
§ 3B1.1 cmt. n.4. “[T]he defendant must have exercised some
degree of control over others involved in the commission of the
offense or he must have been responsible for organizing others
for the purpose of carrying out the crime.” United States v.
Knox, 624 F.3d 865, 874 (7th Cir. 2010) (quoting United States v.
Wasz, 450 F.3d 720, 729 (7th Cir. 2006)).
We find Sunmola’s contention that the district court lacked
evidence to prove his role as the organizer or leader of the
crime unavailing. The record indicates a high level of control
and authority by Sunmola. He recruited accomplices, placed
the orders for merchandise, found the stores where the
merchandise could be picked up, acquired the phony credit
card data used to make the purchases, received the stolen
12 No. 17-1299
goods and wire transfers, and directed everyone else on what
to tell the victims. The Government also presented evidence
suggesting that Sunmola commanded a larger share of the
profits. In light of these facts, along with the discretion given
to a district court’s factual findings, we do not find the applica-
tion of this enhancement clearly erroneous.
B. Loss Calculation
Sunmola argues the district court violated his due process
rights in its loss calculation by placing the burden of proof on
the defendant and relying on incorrect and unreliable informa-
tion. “We review legal questions de novo, including constitu-
tional challenges to sentences.” United States v. Figueroa-Espana,
511 F.3d 696, 705 (7th Cir. 2007).
Sunmola first argues the district court violated his due
process rights during sentencing when it stated that the burden
of proving the loss amount was on the defendant. The govern-
ment bears the burden of proving the loss amount. United
States v. Vivit, 214 F.3d 908, 916 (7th Cir. 2000). However, the
district court is not bound by the Federal Rules of Evidence
during a sentencing hearing and thus, may rely on any
information presented at a sentencing hearing, including the
PSR, so long as this information “has sufficient indicia of
reliability to support its probable accuracy.” Id. When the
district court relies on information contained in the PSR, the
defendant bears the burden of showing the information is
inaccurate or unreliable. United States v. Heckel, 570 F.3d 791,
795 (7th Cir. 2009). The defendant cannot merely attack the
information contained “in the PSR by making a ‘bare denial’ of
its accuracy.” Id. (quoting United States v. Mustread, 42 F.3d
No. 17-1299 13
1097, 1101–02 (7th Cir. 1994)). Thus, “the defendant must
provide ‘substantiated evidence … to counter the govern-
ment’s explicit proof of loss.’” United States v. Durham, 766 F.3d
672, 686 (7th Cir. 2014) (quoting United States v. Gordon, 495
F.3d 427, 432 (7th Cir. 2007)). “Only when the defendant’s
objection creates real doubt as to the reliability of the informa-
tion in the PSR does the government have the burden of
independently demonstrating the accuracy of the information.”
Heckel, 570 F.3d at 795–96.
The district court relied on the PSR in determining the
amount of loss calculation and appropriately placed the
burden of proof on Sunmola to rebut the accuracy and reliabil-
ity of the PSR. However, Sunmola “presented no documentary
evidence to challenge the information in the PSR,” and instead
set forth bare denials. Heckel, 570 F.3d at 796. Thus, the district
court did not err in placing the burden on Sunmola.
Sunmola also argues the district court violated his due
process rights in relying on incorrect and unreliable informa-
tion about the amount of loss and number of victims in the
PSR. We review a district court’s loss calculation for clear error,
reversing only “if we are left with the definite and firm
conviction that a mistake has been made.” United States v. Love,
680 F.3d 994, 999 (7th Cir. 2012). “[T]he district court need only
make a reasonable estimate of the loss in applying the enhance-
ment.” United States v. White, 737 F.3d 1121, 1142 (7th Cir. 2013)
(internal citation and quotation marks omitted). Thus, the
defendant must demonstrate that the sentencing court’s loss
calculation was “not only inaccurate but outside the realm of
permissible computations.” Id. (quoting Love, 680 F.3d at 999).
14 No. 17-1299
At the sentencing hearing, the Government called Latham,
the lead investigator from the United States Postal Inspection
Services, to testify under oath. Latham verified the truth and
accuracy of the documents provided at the sentencing hearing
that he and his office prepared. These documents contained a
breakdown of each individual victims’ loss from Sunmola’s
scheme. Latham specifically verified a spreadsheet, attached as
an addendum, listing 39 additional victims beyond the 13 listed
in the PSR and the loss amount next to each set of initials. He
testified that the information was collected through direct
interviews, phone interviews, mailed-in statements, or mailed-
in supporting documentation with the victims describing what
happened and the amount of money they lost. In some
instances, this information was corroborated with MoneyGram
and Western Union documents. He testified that while some of
these losses were based on victim impact statements he was
unable to verify, others had been independently verified. He
further testified that it was his opinion that the list was
inconclusive. Through investigating Sunmola’s Match.com
profile, he saw that Sunmola had attempted to contact many
other individuals, but he was unable to reach all of these
individuals. Thus, he concluded the total calculated loss of
around $1.7 million was an underestimate of the total actual
loss amount.
The district court considered all of the testimony and
documents submitted at the sentencing hearing and deter-
mined an actual loss calculation of $1,669,050.98. The Guide-
lines provide for a 16-level enhancement if the loss exceeds $1.5
million and is less than $3.5 million. U.S.S.G. § 2B1.1(b)(1)(I).
No. 17-1299 15
Thus, the court imposed a 16-level enhancement for the actual
loss calculation.
Sunmola, amongst numerous arguments, nit-picks at
almost every dollar the district court accepted as accurate and
true to calculate the final loss calculation. Many of these
discrepancies, taken individually, have no effect on the 16-level
enhancement. Additionally, many of Sunmola’s arguments
assert that “the government failed to prove” loss amounts of
individual victims. However, as we previously stated, the
burden of proof was on Sunmola to provide evidence showing
that the PSR was inaccurate or unreliable, which he failed to
do. Thus, the district court did not err in imposing a loss
calculation of $1,669,050.98.
C. Restitution
Sunmola next argues the district court erred in calculating
the amount of restitution owed. We review a district court’s
restitution calculation for abuse of discretion. United States v.
Danford, 435 F.3d 682, 689 (7th Cir. 2006). “Restitution is
determined by the judge using the lower preponderance of the
evidence standard.” Id. “There is no per se rule that a restitution
award need be supported by any particular form of evidence.”
United States v. DiCosola, 867 F.3d 793, 798 (7th Cir. 2017). We
will uphold an order of restitution unless we find that “the
district court used inappropriate factors or did not exercise
discretion at all.” United States v. Frith, 461 F.3d 914, 919 (7th
Cir. 2006).
The district court adopted the proposed restitution amount
from the PSR. This amount was derived from the loss calcula-
tion we previously affirmed. Sunmola contends that the record
16 No. 17-1299
unambiguously credited the deposited amount from his
liquidated assets against the PSR’s restitution and, because the
district court later amended the restitution amount in the
judgment, the deposited amount should be subtracted from the
amended judgment amount as well.
We fail to find any discussion in the record about whether
the credited amount had or had not been subtracted from the
proposed restitution amount found in the PSR. However,
making this determination is unnecessary for us to affirm the
district court’s restitution calculation.
As previously stated, sentencing hearings have a lower
evidentiary standard. Love, 680 F.3d at 999. The judge has
complete discretion to adopt the PSR or any other evidence
presented at a sentencing hearing to determine the final
sentence. Vivit, 214 F.3d at 916. With a restitution amount in
line with the total loss calculation, Sunmola presents nothing
to suggest the district court abused its discretion in ordering
this similar amount for restitution. Furthermore, “[j]udges do
not always speak as clearly as they would write, and it would
be wrong to interpret imperfection in oral expression to mean
more than the context suggests it means.” United States v.
Malone, 747 F.3d 481, 487 (7th Cir. 2014). Thus, we affirm the
restitution amount ordered by the district court.
D. General Deterrence
Finally, Sunmola contends that his sentence is substantively
unreasonable in light of the district court’s overemphasis on
general deterrence. We review the substantive reasonableness
of a defendant’s sentence for an abuse of discretion. United
States v. Marin-Castano, 688 F.3d 899, 902 (7th Cir. 2012). “We
No. 17-1299 17
will uphold [a] sentence so long as the district court offered an
adequate statement of its reasons, consistent with 18 U.S.C.
§ 3553(a), for imposing such a sentence.” United States v.
Melendez, 819 F.3d 1006, 1013 (7th Cir. 2016) (quoting United
States v. Annoreno, 713 F.3d 352, 359 (7th Cir. 2013)). We apply
a presumption of reasonableness to sentences that are within
the Guidelines range, and the defendant bears the burden to
overcome that presumption. Marin-Castano, 688 F.3d at 902.
Sunmola argues the judge overstated general deterrence as
a primary reason for imposing a 324-month sentence. We
disagree. In reviewing the record, the district court clearly did
not rely primarily on general deterrence in Sunmola’s final
sentencing. The judge mentioned general deterrence in a mere
four sentences out of the eight-page transcript from his oral
statement. The judge repeatedly emphasized the seriousness of
the offense, describing it as “the most devastating crime one
could ever imagine without someone laying hands or even
eyes on another human being.” The judge also pointed to other
contributing factors, including the need to promote respect for
the law, to provide just punishment, to protect the public from
him, as well as the impact Sunmola had on the victims, and his
history and characteristics. General deterrence is a factor under
§ 3553(a) the district court is allowed to weigh in determining
a final sentence. While “the weighting of the § 3553(a) factors
must fall within the bounds of reason,” nothing in the district
court’s decision gives us reason to believe the bounds of reason
were abused. United States v. Smith, 721 F.3d 904, 908 (7th Cir.
2013) (internal citation and quotation marks omitted). Thus, we
affirm the district court’s inclusion of general deterrence.
18 No. 17-1299
III. CONCLUSION
For the foregoing reasons, we AFFIRM.