United States v. Omole, Davis ( 2008 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    Nos. 06-2252, 06-3605 & 07-1471
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    v.
    DAVIS OMOLE,
    Defendant-Appellee.
    ____________
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 05 CR 670—Ronald A. Guzmán, Judge.
    ____________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    ADENIYI ADESOKAN and SAMUEL OMOLE,
    Defendants-Appellants.
    ____________
    Appeals from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    Nos. 05 CR 670-2 & 05 CR 670—Ronald A. Guzmán, Judge.
    ____________
    ARGUED NOVEMBER 6, 2007—DECIDED APRIL 15, 2008
    ____________
    2                          Nos. 06-2252, 06-3605 & 07-1471
    Before FLAUM, KANNE, and ROVNER, Circuit Judges.
    KANNE, Circuit Judge. Davis Omole, Adeniyi Adesokan,
    and Samuel Omole pled guilty to various crimes arising
    from a complex identity-theft scheme that the three
    individuals carried out over two years. The district court
    sentenced Davis to 36 months’ imprisonment, Adesokan
    to 78 months’ imprisonment, and Samuel to 24 months’
    imprisonment. In this consolidated appeal, the govern-
    ment appeals Davis’s sentence, which was 51 months
    below the low end of the Sentencing Guidelines range of
    87-102 months. Adesokan appeals his sentence, arguing
    that it was unreasonable in light of Davis’s considerably
    shorter sentence for essentially the same conduct. Samuel
    appeals his sentence on the ground that the district court
    incorrectly calculated the amount of loss attributable to
    him. We affirm the sentences of Adesokan and Samuel
    Omole. We conclude that Davis Omole’s sentence was
    unreasonable and we vacate his sentence and remand for
    resentencing.
    I. HISTORY
    Davis Omole and Adeniyi Adesokan were the chief
    architects of a complex identity-theft scheme through
    which they defrauded approximately 120 individuals
    between April 2003 and July 2005. Davis and Adesokan
    used stolen identities to buy cell phones, clothing, and
    other items and services. They held over 300 auctions
    on the online auction website eBay, where they listed for
    sale various items they did not own and did not intend
    to sell (cell phones, plasma televisions, stereos, electronic
    keyboards), under approximately 100 different eBay
    accounts they created with identities they had stolen. The
    Nos. 06-2252, 06-3605 & 07-1471                           3
    eBay auctions led to $254,000 in intended sales; approxi-
    mately $90,000 was actually collected by the defendants.
    Davis and Adesokan continuously closed and opened
    eBay accounts, activated and deactivated cell phone and e-
    mail accounts, and changed mailing addresses and post-
    office boxes, to avoid getting caught.
    Davis’s younger brother, Samuel, was also involved in
    the identity-theft scheme. Davis and Samuel worked at
    stores where cell phones were sold and activated. Davis
    stole customers’ credit-card and personal-identifica-
    tion information. Samuel used the stolen information to
    activate cell phones, some of which were used in the eBay
    scheme. Davis and Adesokan organized the eBay auctions
    and collected the victims’ money. All three men used
    the stolen information to make personal purchases.
    After they were arrested and charged, Davis pled guilty
    to one count of wire fraud, see 
    18 U.S.C. § 1343
    , and one
    count of aggravated identity theft, see 
    id.
     § 1028(A)(a)(1).
    Adesokan pled guilty to one count of mail fraud. See
    id. § 1341. Samuel also pled guilty to one count of mail
    fraud. See id.
    A. Davis Omole’s Sentence
    Davis Omole’s Presentence Investigation Report (PSR)
    calculated his total offense level for the wire-fraud count
    as 25, and his Criminal History Category as II. The proba-
    tion officer indicated in the PSR that the guidelines range
    for the wire-fraud count was 63 to 78 months’ imprison-
    ment; the government recommended a sentence within
    that range. Regarding the aggravated identity-theft
    count, Davis was subject to a mandatory term of 24
    months’ imprisonment, which could not be served concur-
    4                          Nos. 06-2252, 06-3605 & 07-1471
    rently with another sentence. See id. § 1028A(a)(1), (b)(2);
    U.S.S.G. § 2B1.6(a). Thus, the total term Davis faced under
    the guidelines was 87 to 102 months’ imprisonment.
    During Davis’s sentencing hearing, the judge noted that
    the defendant had perpetrated a substantial and sophisti-
    cated fraudulent scheme that involved planning, execu-
    tion, and avoidance of detection over a long period of
    time. He had cheated “dozens and dozens” of people out
    of approximately $90,000, and intended to cheat them out
    of much more had the scheme been carried out as planned.
    The judge extensively scolded Davis for the crimes he
    committed and the arrogance he displayed during court
    proceedings.
    This defendant’s record reflects an arrogance and an
    obvious feeling of superiority over the rest of us. In
    addition to that, not only the things he has done but
    the way he has done them reflects a total lack of
    empathy for his victims. Sending them e-mails ridicul-
    ing their stupidity for being cheated by him reflects a
    lack of feeling for other human beings that is absolutely
    alarming in a 20-year old. . . . And he’s going to keep
    [defrauding victims] until and unless he develops
    some sense of what it takes to live with the rest of us
    without cheating us, stealing from us, and victimizing
    us.
    After those scathing comments, the judge moderated
    and explained that because Davis was only 20 years old,
    and because this fraudulent scheme represented Davis’s ”
    first substantial involvement with the law,” he was depart-
    ing downward with respect to the wire-fraud count and
    imposing a sentence below the minimum guidelines
    range. He sentenced Davis to a term of 12 months’ impris-
    onment for the wire-fraud conviction—51 months less than
    Nos. 06-2252, 06-3605 & 07-1471                            5
    the minimum advised by the guidelines. The judge then
    imposed the mandatory 24-month sentence for Davis’s
    aggravated-identify-theft conviction, to run consecutively.
    Davis was ordered to pay restitution to the victims.
    The judge then chastised Davis further:
    The sentence I have imposed upon you is substan-
    tially less than [the guidelines range], so you’ve caught
    a break that I’m not at all sure you deserve. Your
    conduct during the course of these proceeding[s] has
    been nothing but contemptuous of this Court. Your
    failure to abide by our conditions of release has been
    nothing but arrogant. Your continued participation in
    these schemes after having been convicted in State
    Court and awaiting the resolution of this case has been
    nothing but arrogant, and I’m going overboard to
    make an adjustment for your age and the incredible
    lack of understanding of life that some people at
    your age seem to reflect.
    The judge ended his speech to Davis by encouraging
    him to do the right thing in the future, and explaining
    that he would be surrounded by people who do nothing
    but the wrong thing. The judge said, to conclude, “I’m
    giving you a chance. The choice is yours. Good luck.”
    B. Adeniyi Adesokan’s Sentence
    Adesokan’s PSR calculated his offense level as 24 and his
    Criminal History Category as III. At sentencing, the
    judge decided that the offense level was correct because
    it accounted for Adesokan’s conduct, the intended loss of
    the scheme ($254,000)—whether realized or not—and
    Adesokan’s failure to accept responsibility for his crime
    6                         Nos. 06-2252, 06-3605 & 07-1471
    and conduct. His Criminal History Category of III was
    also correct, and was based on a previous guilty plea for
    computer fraud; a probation violation; a previous guilty
    plea for unlawful possession of a fraudulent drivers’
    license, and then driving on a suspended or revoked
    license; and finally, a previous guilty plea for forgery.
    Adesokan’s guidelines range was 63 to 78 months’ impris-
    onment.
    Both Adesokan and his mother testified at Adesokan’s
    sentencing hearing. Adesokan argued that he was slowly
    withdrawing from the scheme. The judge listened to the
    arguments made by both parties for their respective
    sentencing recommendations, and explained that he
    had read and considered the character-reference letters
    that were submitted on Adesokan’s behalf.
    The judge did not credit Adesokan’s withdrawal argu-
    ment, and explained that if Adesokan wanted to relin-
    quish his responsibility for the scheme he would have
    had to stop his participation in it, which he did not do.
    The judge went on to state that Adesokan had been
    given plenty of chances to change after his numerous
    convictions for similar conduct, but he failed to change.
    “You have had plenty of opportunities. You’ve been given
    probation and probation and probation. You have been
    told what you were doing was wrong by the courts, law
    enforcement, and your parents. You have been warned
    that you were headed towards disastrous consequences
    by all concerned, and you continued.” The judge sen-
    tenced Adesokan to 78 months’ imprisonment—the
    maximum sentence under the guidelines range—and
    ordered restitution.
    Nos. 06-2252, 06-3605 & 07-1471                           7
    C. Samuel Omole’s Sentence
    Samuel’s PSR calculated his total offense level as 19, and
    his Criminal History Category as I. The guidelines range
    was 30 to 37 months’ imprisonment. The government
    recommended a sentence within that range.
    At his sentencing hearing, Samuel Omole argued that
    he was not involved in the comprehensive eBay scheme,
    but rather, was involved in a smaller, individualized
    scheme in which he alone made fraudulent purchases with
    stolen information that he got from his brother, Davis.
    Samuel argued that he never stole any identities while
    working at cell-phone dealers, and that he did not profit
    from the eBay scheme. Samuel also argued that, even if
    he was part of the broader eBay scheme, his involve-
    ment did not begin until after October 2004—when he
    had activated a phone that ultimately was used in the eBay
    scheme. Consequently, Samuel urged that the total in-
    tended loss attributable to him should be less than the
    amounts attributable to Adesokan and Davis. The gov-
    ernment countered that it believed Samuel was involved
    in the scheme from the fall of 2003 because Adesokan
    had testified in front of a grand jury, and in a proffer-
    protected statement, that Samuel had activated a phone
    in December 2003 that was used in the eBay scheme.
    The judge rejected Samuel’s argument that he was not
    involved in the eBay scheme based on the fact that Samuel
    had activated a cell phone that was used in the scheme. The
    judge stated, “it’s clear to me that he was helping this
    entire scheme and that his part of it, although you can call
    it a small part because the scheme was so big, was to
    provide the phones and to aid in other ways, and he did
    that.” With respect to the loss-attribution argument, the
    judge credited Adesokan’s sworn testimony to the grand
    8                           Nos. 06-2252, 06-3605 & 07-1471
    jury and stated that Samuel did not put forth evidence
    demonstrating that the statement was incorrect or that
    Adesokan was lying. The judge decided that Adesokan’s
    testimony about Samuel’s involvement in the scheme—
    beginning in the fall of 2003—was sufficient to meet the
    preponderance-of-the-evidence standard required for the
    judge to hold Samuel accountable for the losses caused
    throughout the entire scheme.
    The judge sentenced Samuel to 24 months’ imprisonment
    and ordered him to pay restitution to the victims. The
    judge said that he departed from the guidelines for
    Samuel because he had played such a minor role in the
    fraudulent scheme.
    II. ANALYSIS
    On appeal, the government argues that Davis Omole’s
    12-month sentence for wire fraud—which was 51 months
    below the bottom of the guidelines range—is unreasonable.
    Adesokan appeals his 78-month sentence, arguing that,
    although the sentence is within the guidelines range, it is
    unreasonable in light of Davis’s 36-month sentence for
    essentially the same conduct. Samuel Omole appeals his
    24-month sentence on the ground that the district court
    erred in its calculation of the loss attributable to him.
    We review sentences for their reasonableness, United
    States v. Booker, 
    543 U.S. 220
    , 260-63 (2005), under an abuse-
    of-discretion standard, Gall v. United States, 
    128 S. Ct. 586
    ,
    597 (2007). A sentence that falls within a properly calcu-
    lated advisory guidelines range is presumed reasonable.
    Rita v. United States, 
    127 S. Ct. 2456
    , 2462-63 (2007); United
    States v. Miranda, 
    505 F.3d 785
    , 791 (7th Cir. 2007). On the
    other hand, there is not a “presumption of unreasonable-
    Nos. 06-2252, 06-3605 & 07-1471                              9
    ness for sentences outside the Guidelines range.” Gall,
    
    128 S. Ct. at 595
    .
    In imposing a sentence outside the guidelines range, a
    judge need not provide “extraordinary” justifications. 
    Id. at 595
    . But, he must “give serious consideration to the
    extent of any departure from the Guidelines and must
    explain his conclusion that an unusually lenient or an
    unusually harsh sentence is appropriate in a particular
    case with sufficient justifications.” 
    Id.
     Although the
    degree of variance outside of the guidelines is a pertinent
    consideration on review, the Supreme Court has rejected
    the application of mathematical formulas that use “the
    percentage of a departure as the standard for determining
    the strength of the justifications required for a specific
    sentence.” 
    Id. at 595
    ; see also United States v. McIlrath,
    
    512 F.3d 421
    , 426 (7th Cir. 2008).
    A sentencing judge undertakes a two-step process
    when calculating a defendant’s sentence. See Miranda,
    
    505 F.3d at 791
    ; United States v. Robinson, 
    435 F.3d 699
    , 700-
    01 (7th Cir. 2006). The judge is first required to calculate
    the proper advisory guidelines range. Gall, 
    128 S.Ct. at 596
    (“[T]he Guidelines should be the starting point and the
    initial benchmark.”). Then, after hearing the parties’ argu-
    ments, the judge must consider the factors enunciated in
    
    18 U.S.C. § 3553
    (a) to decide whether the defendant’s
    sentence should fall within that guidelines range. Id.;
    Miranda, 
    505 F.3d at 791
     (“Although the guidelines are
    treated as advisory after Booker, the application of section
    3553(a) is mandatory.”); United States v. Wachowiak, 
    496 F.3d 744
    , 747-48 (7th Cir. 2007); Robinson, 
    435 F.3d at 700-01
    .
    Sentencing judges are directed in § 3553(a) to consider:
    (1) offense and offender characteristics; (2) the need for
    a sentence to reflect the basic aims of sentencing,
    10                           Nos. 06-2252, 06-3605 & 07-1471
    namely (a) “just punishment” (retribution), (b) deter-
    rence, (c) incapacitation, (d) rehabilitation; (3) the
    sentences legally available; (4) the Sentencing Guide-
    lines; (5) Sentencing Commission policy statements;
    (6) the need to avoid unwarranted disparities; and
    (7) the need for restitution.
    Rita, 
    127 S. Ct. at 2463
    .
    After a judge decides on the defendant’s sentence, he
    must explain his reasoning. Gall, 
    128 S. Ct. at 597
    . Although
    “the sentencing court is not required to issue a detailed
    oral or written opinion in every case,” Wachowiak, 
    496 F.3d at 749
    , it must “adequately explain the chosen sen-
    tence to allow for meaningful appellate review and to
    promote the perception of fair sentencing,” Gall, 
    128 S. Ct. at 597
    ; see also Rita, 
    127 S. Ct. at 2456, 2468
     (“The sentenc-
    ing judge should set forth enough to satisfy the appel-
    late court that he has considered the parties’ arguments
    and has a reasoned basis for exercising his own legal
    decisionmaking authority.”). If the judge chooses a sen-
    tence below or above the guidelines, he must proffer a
    sufficient justification for the divergence. Gall, 
    128 S. Ct. at 597
    . “[A] major departure should be supported by a
    more significant justification than a minor one.” 
    Id.
    We now consider each of the defendant’s appeals in turn.
    A. Davis Omole
    In reviewing Davis’s sentence, we first consider wheth-
    er the judge committed a procedural error. Gall, 
    128 S. Ct. at 597
    ; United States v. Gordon, 
    513 F.3d 659
    , 666 (7th
    Cir. 2008). We ask whether the judge properly calculated
    the guidelines range; analyzed the factors set forth in
    § 3553(a); based the sentence on accurate facts; and ex-
    Nos. 06-2252, 06-3605 & 07-1471                              11
    plained the sentence and the justifications for an above- or
    below-guidelines sentence. Gall, 
    128 S. Ct. at 597
    ; Gordon,
    
    513 F.3d at 666
    . In Davis Omole’s case, the judge noted the
    properly calculated guidelines range to be 63 to 78 months’
    imprisonment for the wire-fraud conviction, and 24
    months’ imprisonment for the aggravated identity theft
    conviction, to run consecutively. The judge listened to the
    parties’ arguments at the hearing and considered the
    § 3553(a) factors—some explicitly, and others implicitly.
    See Gall, 
    128 S. Ct. 586
    , 599 (“Since the District Judge
    correctly calculated and carefully reviewed the guide-
    lines range, he necessarily gave significant weight and
    consideration to the need to avoid unwarranted dispari-
    ties.”). The judge noted Davis’s personal characteristics,
    including his young age (20 years) and his lack of serious
    involvement with the law. He expounded on Davis’s
    character flaws—his extreme arrogance, his lack of empa-
    thy, and his self-centeredness. He discussed the offense
    characteristics, noting the sophisticated, enduring nature
    of the fraudulent scheme that cheated many people out of
    their “hard-earned money.” The transcript reveals the
    reasons behind the judges’ below-guidelines sentence. We
    find no procedural error.
    Our next step is to review the substantive reasonable-
    ness of the sentence under the deferential abuse-of-discre-
    tion standard. Gall, 
    128 S. Ct. at 597
    ; Gordon, 
    513 F.3d at 666
    .
    This totality-of-the-circumstances analysis requires that
    we defer to the sentencing judge, who considers each
    defendant as an individual and decides sentences on a
    case-by-case, rather than wholesale, basis. Gall, 
    128 S. Ct. at 597-98
    . We recognize that the sentencing judge is in the
    best position to apply the § 3553(a) factors to the individual
    defendant, and that the judge sees things we cannot see,
    12                           Nos. 06-2252, 06-3605 & 07-1471
    assesses in real-time the credibility of witnesses and
    defendants when we cannot, and develops insights from
    the various bits and pieces of information that he comes
    across in the course of a case that nonetheless are not
    reflected in the record. See Gall, 
    128 S. Ct. at 597-98
    ; Gordon,
    
    513 F.3d at 666
    .
    Because the “contours of substantive reasonableness
    review are still emerging,” Wachowiak, 
    496 F.3d at 750
    ,
    we cannot target a fixed point at which a sentence turns
    from reasonable to unreasonable, or vice versa. 
    Id. at 751
    .
    “The concept of substantive reasonableness contemplates
    ‘a range, not a point.’ ” 
    Id.
     (quoting United States v.
    Cunningham, 
    429 F.3d 673
    , 679 (7th Cir. 2005)). A variant
    sentence based on factors that are particularized to the
    individual defendant may be found reasonable, but we
    are wary of divergent sentences based on characteristics
    that are common to similarly situated offenders. See 
    id. at 750
     (“A nonguidelines sentence premised on factors
    that are common to offenders with like crimes may re-
    flect a simple disagreement with the guidelines; Booker
    did not authorize courts to find that the guidelines them-
    selves (or the statutes on which they are based) are unrea-
    sonable.” (internal quotation marks and citations omitted)).
    Turning to Davis’s sentence, there is a sizeable difference
    between the advisory range and the sentence imposed by
    the judge. Davis’s sentence for the wire-fraud conviction
    was just 12 months’ imprisonment—81% lower than the
    low end of the guidelines range.1 As such, the district
    1
    We include the percentage for purposes of illustration, and
    refrain from using the mathematical variance in our reason-
    ableness determination. See Gall, 
    128 S. Ct. at 595
    .
    Nos. 06-2252, 06-3605 & 07-1471                            13
    judge had to enunciate persuasive reasons, based on the
    factors listed in § 3553(a), for the variance. See Gall, 
    128 S. Ct. at 596-97
    ; Wachowiak, 
    496 F.3d at 749
    ; United States v.
    Johnson, 
    427 F.3d 423
    , 426 (7th Cir. 2005). Looking at the
    judge’s dialogue concerning Davis, however, we are
    struck by his negative tone. The judge severely chastised
    Davis, saying he demonstrated “a lack of feeling for
    other human beings that is absolutely alarming in a 20-
    year old”; that his conduct had been “nothing but con-
    temptuous of this Court”; that his failure to follow his
    release conditions and his continued participation in the
    fraudulent schemes after being convicted in state court
    was “nothing but arrogant.” Instead of making a persua-
    sive case for a substantially below-guidelines sentence,
    the judge stated a strong case for just the opposite.
    Perhaps the judge saw something in this defendant that
    we are unable to glean from the record. As previously
    discussed, sentencing law not only allows, but requires
    judges to take individualized characteristics into account.
    See Gall, 
    128 S. Ct. at 597
    . At the same time, the judge
    must articulate reasons that assure us that the sen-
    tencing process is a reasoned one. Rita, 
    127 S. Ct. at 2469
    .
    The judge cited the defendant’s young age and his lack of
    substantial involvement with the law as the reasons for
    the low sentence. Davis’s age, while a personal characteris-
    tic a judge is allowed to consider under §3553(a), is not
    unique to Davis, and does not by itself convince us that
    Davis deserves this much-reduced sentence. The defen-
    dant’s lack of “substantial involvement with the law” also
    fails to persuade us. For one, we are aware of the fact that
    the defendant had two previous state convictions for
    driving on a suspended license, a state felony convic-
    tion for Internet fraud in 2004, and a state conviction for
    14                         Nos. 06-2252, 06-3605 & 07-1471
    knowingly possessing a fraudulent driver’s license in
    2004. The sentencing judge even indicated that Davis
    continued participating in the identity-theft scheme after
    he was convicted in state court for the same conduct.
    Davis’s conviction background hardly appears to us to
    call for a reduced sentence.
    At sentencing, the judge did not highlight Davis’s
    rehabilitative potential or other factors that would sup-
    port a below-guidelines sentence. Instead, the judge
    commented on the defendant’s extreme arrogance, his
    contempt for the court, and his utter lack of feeling
    for other human beings. The picture the judge painted for
    us is one of an offender who deserves the punishment the
    law prescribes. See, e.g., United States v. Roberson, 
    474 F.3d 432
    , 434 (7th Cir. 2007) (“One might have expected
    these factors to push his sentence to the top of the guide-
    lines range or even above it . . . .”).
    The judge may have leaned toward a lighter sentence
    for Davis’s wire-fraud conviction to somehow com-
    pensate for the 24-month sentence Congress mandated
    for aggravated identity theft, which must run consecu-
    tively to other sentences. 18 U.S.C. § 1028A(a)(1), (b)(2).
    Had the judge even slightly factored this into his decision,
    however, he would have violated 18 U.S.C. §1028A(b)(3),
    which prohibits courts from reducing the sentence of a
    connected crime to “compensate for, or otherwise take
    into account, any separate term of imprisonment imposed
    [for Aggravated Identity Theft].” We have held that
    sentencing judges are not permitted to reduce an under-
    lying sentence just because an add-on sentence for a re-
    lated crime carries with it a fixed minimum sentence. See
    Roberson, 
    474 F.3d at 436
    .
    Nos. 06-2252, 06-3605 & 07-1471                              15
    Davis’s situation is similar to the defendant’s in United
    States v. Roberson, 
    474 F.3d at 433-36
    . There, a 19-year old
    pled guilty to bank robbery and to using a firearm in a
    crime of violence. 
    Id. at 433
    . He was sentenced to one
    month’s imprisonment for the bank-robbery conviction
    (the low end of the guidelines range was 46 months), and
    a mandatory 84 months’ imprisonment for the firearm
    offense, to run consecutively. 
    Id. at 433-34
    . The judge
    explained that because she could not adjust the manda-
    tory 84-month consecutive sentence, she had “no alter-
    native but to adjust the 46 month guideline part of the
    sentence so that the sentence, as a whole, is reasonable.” 
    Id. at 434
    . On appeal, we viewed the judge’s exercise of
    discretion as representing a disagreement with Congress
    about the appropriateness of a sentence for a given crime,
    and we rejected her approach. 
    Id. at 436-37
    . Even though
    the Sentencing Guidelines are advisory, judges are not
    allowed to simply ignore the guidelines ranges. 
    Id.
    The sentencing judge in Davis’s case said it best himself
    when he said to Davis: “[t]he sentence I have imposed
    upon you is substantially less than [the guidelines range],
    so you’ve caught a break that I’m not at all sure your deserve.”
    The judge also admitted that he was “going overboard” to
    make an adjustment for Davis’s age and the lack of under-
    standing that people of his age seem to reflect. Without a
    compelling justification for the “break” Davis caught at
    sentencing—which the judge in this case did not pro-
    vide—the 12-month sentence for wire fraud can only be
    viewed as substantively unreasonable. See 
    id. at 435-37
    .
    We come to this conclusion even as we recognize that
    the district court mentioned a few mitigating factors in a
    document that was provided to the parties after sentencing.
    In this document, the judge listed as his “reasons for
    16                         Nos. 06-2252, 06-3605 & 07-1471
    departure,” in addition to Davis’s young age, the fact
    that Davis was a student in college, his history of good
    grades in high school, and his past participation on his
    high-school football and chess teams. He indicated that
    Davis’s father was murdered in 1999, and that Davis had
    real potential for rehabilitation—“beyond what the court
    ordinarily sees.” The judge felt as though “seven or eight
    years in jail would go a long way towards destroying that
    potential.”
    These comments directly contradict the denigrating
    statements made at sentencing, and only further our
    conclusion that the sentence was unreasonable as we are
    left with widely divergent and seemingly irreconcilable
    pictures of this defendant. We also note that the judge’s
    sentiment that a lengthy imprisonment would go a long
    way toward destroying Davis’s potential is “completely
    speculative.” See Roberson, 
    474 F.3d at 435-36
    ; United States
    v. Goldberg, 
    491 F.3d 668
    , 673 (7th Cir. 2007).
    We are not saying that any below-guidelines sentence
    for Davis would have been unreasonable. See Goldberg,
    
    491 F.3d at 674
    . However, based on the sentencing tran-
    script and the clearly disparaging comments the judge
    made about Davis, we find that the district court abused
    its discretion by imposing the 12-month sentence, and
    therefore we vacate the sentence and remand for
    resentencing.
    B. Adeniyi Adesokan
    Adesokan argues on appeal that his 78-month sentence
    was unreasonable and thus illegal, even though it was
    within the correctly calculated guidelines range, because
    Nos. 06-2252, 06-3605 & 07-1471                          17
    it “exceeded his virtual twin Mr. Omole’s by five and one-
    half years and over 600% without any lawful justification.”
    Adesokan’s argument is premised on the assumption
    that Davis Omole’s 12-month sentence is reasonable;
    Adesokan’s entire brief focuses on the discrepancy bet-
    ween his sentence and that of Davis, and the perceived
    injustice of widely disparate sentences for similar
    codefendants who participated in the same scheme.
    Seeing as we have already decided that Davis Omole’s
    sentence was substantively unreasonable, Adesokan’s
    appeal is effectively doomed.
    This court refuses to view the discrepancy between
    sentences of codefendants as a basis for challenging
    a sentence. “We will not disturb the appealing de-
    fendant’s sentence even when a co-conspirator’s sen-
    tence is lenient.” United States v. White, 
    406 F.3d 827
    , 837
    (7th Cir. 2005). We will only “disturb a sentence based on
    an unjustifiable disparity between co-defendants . . . if it
    ‘actually creates a disparity between the length of the
    appellant defendant’s sentence and all other similar
    sentences imposed nationwide.’ ” 
    Id.
     (quoting United States
    v. Simpson, 
    337 F.3d 905
    , 909 (7th Cir. 2003) (em-
    phasis added)); see also United States v. Davila-Rodriguez,
    
    468 F.3d 1012
    , 1014 (7th Cir. 2006) (“[W]e reject
    Davila-Rodriguez’s argument that his sentence is unreason-
    able when compared to the sentences imposed on
    other defendants in this case because the kind of disparity
    with which [18 U.S.C.] § 3553(a)(6) is concerned is an
    unjustified difference across judges (or districts) rather
    than among defendants to a single case.” (internal quota-
    tion marks and citations omitted)).
    But even if we decided to compare the sentences of
    Adesokan and Davis in our review for reasonableness,
    18                        Nos. 06-2252, 06-3605 & 07-1471
    Adesokan would still lose—we find no unreasonableness
    in the judge’s imposition of Adesokan’s sentence; rather,
    we find the judge erred with respect to Davis Omole’s
    sentence. Adesokan’s sentence was within the properly
    calculated guidelines range—at the very high end. As
    such, his sentence is presumed reasonable. Rita, 
    127 S. Ct. at 2462
    ; Miranda, 
    505 F.3d at 791
    .
    In this case, the judge found that the PSR properly
    calculated Adesokan’s offense level and criminal-history
    category. The sentencing transcript shows that the judge
    considered the testimony and the parties’ arguments. He
    also took into account the character-reference letters
    submitted on Adesokan’s behalf. He looked at Adesokan’s
    offense history, and his lack of rehabilitation following
    his previous convictions: “You’ve been given probation
    and probation and probation. . . . and you continued.” The
    judge noted that Adesokan’s convictions were even more
    “pathetic” because he comes from a good home with
    parents who care about him. The judge said that based
    on the totality of the circumstances, he decided on a
    sentence of 78 months’ imprisonment. The judge made
    no procedural error in deciding Adesokan’s sentence,
    and the sentence is not substantively unreasonable.
    Adesokan perpetrated a large fraud on numerous victims,
    depriving them not only of money, but also of the sense
    of personal security.
    The guidelines range for Adesokan’s offense, while
    advisory, reflects the Sentencing Commissions’ judgment
    as to the sentencing range that best carries out its con-
    gressional mandate to further the objectives of § 3553(a).
    See Rita, 
    127 S. Ct. at 2463
    . “An individual judge who
    imposes a sentence within the range recommended by
    the guidelines thus makes a decision that is fully con-
    Nos. 06-2252, 06-3605 & 07-1471                             19
    sistent with the Commission’s judgment in general.” 
    Id. at 2465
    ; see also Gall, 
    128 S. Ct. at 594
    . Such sentences are
    presumed reasonable, and in this case, the within-guide-
    lines sentence is in fact reasonable. See United States v.
    Hurn, 
    496 F.3d 784
    , 791 (7th Cir. 2007) (“Hurn has not
    convinced us that his sentence is an exception to the
    general rule that a Guidelines sentence is reasonable.”).
    C. Samuel Omole
    Samuel Omole appeals his below-guidelines sentence,
    claiming that the court erroneously calculated the loss
    amount attributable to him, thereby placing him in a
    higher guidelines range than Samuel had hoped for. The
    judge found by a preponderance of the evidence, see
    United States v. Hale , 
    448 F.3d 971
    , 988 (7th Cir. 2006), both
    that Samuel was involved in the broader eBay scheme,
    and that he was involved in it from December 2003.
    Samuel specifically faults the judge’s reliance on
    Adesokan’s grand-jury testimony, during which Adesokan
    stated that Samuel had activated three phones in December
    2003 that were used in the eBay scheme. Adesokan’s
    testimony constitutes hearsay, but judges are allowed to
    rely on hearsay evidence during sentencing so long as
    that evidence is reliable and the defendant is afforded a
    reasonable opportunity for rebuttal. United States v. Barnes,
    
    117 F.3d 328
    , 337 (7th Cir. 1997); United States v. Francis,
    
    39 F.3d 803
    , 810 (7th Cir. 1994). The judge was clear to note
    that Samuel had the opportunity to cross-examine
    Adesokan in order to rebut his testimony: “You are per-
    fectly free to have an evidentiary hearing at the sen-
    tencing and bring him here and have him testified”;
    “you are not precluded even now from presenting any
    20                         Nos. 06-2252, 06-3605 & 07-1471
    evidence in any form that you wish in the sentencing
    hear[ing].”
    In reviewing the district court’s reliance on hearsay
    testimony under an abuse of discretion standard, see
    Barnes, 
    117 F.3d at 337
    , “[w]e accord a sentencing court’s
    credibility determinations exceptional deference.” United
    States v. Ngatia, 
    477 F.3d 496
    , 500 (7th Cir. 2007). Samuel
    argued that Adesokan had an incentive to lie about Sam-
    uel’s involvement, and that Adesokan was not trust-
    worthy because he had lied before in court proceedings.
    The judge considered these arguments, but ultimately
    disagreed and decided that Adesokan’s grand-jury testi-
    mony was reliable. The judge believed that there was no
    motive for Adesokan to lie to the grand jury and that it
    would not have been profitable for him to do so. Ultimately
    the judge decided that it was “more probably true than not
    that what Mr. Adesokan said [was] accurate and correct.”
    He based this conclusion on “all of the details, the circum-
    stances and all of the things that have been shown.”
    Even though Samuel claims that he was not involved in
    the eBay scheme until much later in time, the district
    judge “was entitled to credit the contrary version of events
    as described” by Adesokan. 
    Id.
     We defer to that finding,
    and reject Samuel’s argument that the judge abused his
    discretion in this regard.
    III. CONCLUSION
    For the foregoing reasons, we AFFIRM the sentences of
    Adeniyi Adesokan and Samuel Omole and we VACATE
    Davis Omole’s sentence and REMAND for resentencing.
    USCA-02-C-0072—4-15-08