United States v. Tayo Ogunbanke , 619 F. App'x 586 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50600
Plaintiff – Appellee, D.C. No. 2:12-cr-00623-MWF-1
v. MEMORANDUM *
TAYO OGUNBANKE,
Defendant – Appellant.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted March 5, 2015 **
Pasadena, California
Before: MURPHY, *** GOULD, and TALLMAN, Circuit Judges.
Defendant-appellant, Tayo Ogunbanke, appeals the sentence imposed by
the district court following his conviction of one count of access device fraud, in
*
This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as may be provided by Ninth Circuit Rule
36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals, Tenth Circuit, sitting by designation.
violation of 18 U.S.C. § 1029. Exercising jurisdiction pursuant to 18 U.S.C.
§ 3742 and 28 U.S.C. § 1291, we affirm Ogunbanke’s sentence.
1. Ogunbanke first asserts the district court erred in calculating his
advisory guidelines range. He argues the government failed to prove that a
substantial part of the fraudulent scheme in which he was involved was
committed from outside the United States and, thus, the district court erroneously
applied a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(10)(B). We
review a district court’s interpretation of the Sentencing Guidelines de novo.
United States v. Hornbuckle, 784 F.3d 549, 553 (9th Cir. 2015). Findings of fact
are reviewed for clear error. Id.
2. Because the Sentencing Guidelines do not define “substantial,” we look
to the dictionary for the plain meaning of the term. United States v. Flores, 729
F.3d 910, 914 (9th Cir. 2013). The definitions of “substantial” relevant to
§ 2B1.1(b)(10)(B) include: “an important material matter, thing, or part,”
Webster’s Third New International Dictionary 2280 (1993), and “an essential
part, point, or feature,” 17 Oxford English Dictionary 67 (2d ed. 1989). With
these definitions in mind, we conclude that application of the § 2B1.1(b)(10)(B)
enhancement to the calculation of Ogunbanke’s offense level is amply supported
by the district court’s unchallenged findings.
3. Ogunbanke argues the district court erred by basing the
§ 2B1.1(b)(10)(B) enhancement on evidence obtained from a French investigation
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into the fraud scheme. The challenged evidence includes, inter alia, a wiretapped
conversation between Ogunbanke and his co-conspirator in France and
information obtained after Ogunbanke’s co-conspirators were arrested.
Ogunbanke’s fifth amendment challenge fails for two reasons. As Ogunbanke
himself admits, the district court did not rely on the wiretapped conversations
themselves. 1 Further, the evidence actually considered by the district court,
including information derived from the French investigation, has minimal indicia
of reliability. United States v. Alvarado-Martinez, 556 F.3d 732, 735 (9th Cir.
2009) (per curiam) (“[A] district court may consider any relevant information,
provided that the information has sufficient indicia of reliability to support its
probable accuracy.” (internal quotation marks omitted)); United States v.
Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006) (reiterating that hearsay statements
can be considered at sentencing).
4. The record details the fraud scheme. Ogunbanke forwarded stolen credit
card account numbers and corresponding identifying information to co-
conspirators who created counterfeit credit cards. He contacted the financial
institution associated with the counterfeit card, impersonated the putative
1
To the extent Ogunbanke’s challenge is grounded in the Fourth
Amendment, “fourth amendment principles do not apply to searches by foreign
authorities in their own countries, even if the targets of the search are American”
unless the United States has substantially participated in the investigation. United
States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987). Ogunbanke has not shown
that the United States participated in the French investigation.
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cardholder, and fraudulently advised the institution that the cardholder would be
traveling internationally. The counterfeit credit cards were then used by the co-
conspirators to complete fraudulent transactions. The district court, adopting the
Presentence Investigation Report, found that “the majority of the fraudulent
transactions occurr[ed] abroad in locations including France, Italy, Japan, the
Netherlands, Spain, and Thailand.” See United States v. Charlesworth, 217 F.3d
1155, 1160 (9th Cir. 2000) (“[A] sentencing court may rely only on an
unchallenged PSR to find that the facts underlying a sentence enhancement have
been established by a preponderance of the evidence.”). The international feature
of the scheme was an essential component of the crime because it permitted
Ogunbanke’s co-conspirators to engage in fraudulent transactions without
detection by law enforcement or the issuing financial institutions.
5. Ogunbanke next argues the district court erroneously applied a
“variance of just three months” to ameliorate the sentencing consequences of the
government’s decision to prosecute him separately for an illegal reentry charge
when it should have varied by six months. Because Ogunbanke’s seventy-two-
month sentence was within a properly calculated advisory guidelines range, it did
not involve a variance. United States v. Moschella, 727 F.3d 888, 893 (9th Cir.
2013) (describing a variance as a sentence “above or below the properly
calculated final sentencing range”). Ogunbanke can only be arguing his sentence
is substantively unreasonable because the district court did not adequately
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consider the effect of the separate prosecutions. We review the substantive
reasonableness of a sentence for abuse of discretion. Gall v. United States, 552
U.S. 38, 51 (2007).
6. A sentence is substantively reasonable if “the district court considered
the specific facts presented by [the] case and . . . its sentence was consistent with
its assessment of [those] facts.” United States v. Apodaca, 641 F.3d 1077, 1082
(9th Cir. 2011). Here, the district court carefully detailed its analysis of the
factors set out in 18 U.S.C. § 3553(a). The court stated it was indisputable that
the amount of the loss from the crime of conviction was greater than the amount
used to calculate Ogunbanke’s offense level, and noted Ogunbanke had a “lengthy
criminal history that is not reflected in the formality of the Guidelines.”
Accordingly, the district court expressed its view that a sentence at the harsher
end of the advisory guidelines range was appropriate. The court also expressly
stated it had considered the fact that Ogunbanke was prosecuted separately for the
immigration violation. Nothing in the record supports Ogunbanke’s assertion his
the sentence is greater than necessary to reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense, to
adequately deter criminal conduct, or to protect the public from further criminal
activity. Thus, he has failed to show his sentence is substantively unreasonable.
7. Finally, Ogunbanke argues the district court failed to adequately explain
its decision to impose a term of supervised release and the term is improper
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because he will most likely be deported after his incarceration ends. This
argument fails under any standard of review.
8. Application note 5 to U.S.S.G. § 5D1.1 instructs a court to “consider
imposing a term of supervised release on [a removable alien] if the court
determines it would provide an added measure of deterrence and protection based
on the facts and circumstances of [the] particular case.” We have previously
upheld the imposition of a term of supervised release on a removable alien when
the facts supported it. See, e.g., United States v. Valdavinos-Torres, 704 F.3d
679, 693 (9th Cir. 2012) (“[T]he district court below gave a specific and
particularized explanation that supervised release would provide an added
measure of deterrence and protection based on the facts of [defendant’s] case.”).
Here, the district court’s rationale for including the term of supervised release is
clear from the record. The court stated that Ogunbanke’s obligation to report to
the USPO is confined to those periods of time during which he is physically
present in the United States. While he is residing outside the United States, he
has no obligation to report to the USPO. In light of Ogunbanke’s history of
illegal reentry and the presence of his immediate family in the United States, the
added deterrence and protection to the community afforded by the term of
supervised release justifies its imposition.
AFFIRMED.
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