United States v. Cyril Egu , 379 F. App'x 605 ( 2010 )

FILED
NOT FOR PUBLICATION MAY 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10247
Plaintiff - Appellee, D.C. No. 3:07-cr-00057-LRH-
VPC-1
v.
CYRIL EGU, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and submitted May 12, 2010
San Francisco, California
Before: SILVERMAN, FISHER and M. SMITH, Circuit Judges.
Defendant Cyril Egu appeals both his conviction and sentence on two counts
of aggravated identity theft, in violation of 18 U.S.C. § 1028A, and two counts of
access device fraud, in violation of 18 U.S.C. § 1029. The district court sentenced
Defendant to 72 months in prison: concurrent 24-month terms for both § 1029
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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convictions, plus two consecutive 24-month terms for each § 1028A conviction.
We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. For
the following reasons, we affirm.
First, the district court did not abuse its discretion under Federal Rule of
Evidence 404(b) by admitting into evidence a Nigerian passport bearing
Defendant’s photograph and the name “John Lawrence Egumasi.” The passport
was highly relevant “as proof . . . of identity.” See Fed. R. Evid. 404(b). The
perpetrator of the offenses charged in the indictment used the alias “John
Lawrence,” and authorities found the passport among other evidence of the
charged offenses. Beyond arguing the passport’s irrelevance, Defendant has failed
to show how the passport’s admission was unduly prejudicial. See United States v.
Banks, 514 F.3d 959, 976–77 (9th Cir. 2008). This is especially so in light of the
district court’s contemporaneous limiting instruction. See United States v. Hollis,
490 F.3d 1149, 1153 (9th Cir. 2007).
Second, the district court did not abuse its discretion by applying a two-level
sophisticated means enhancement, per U.S.S.G. § 2B1.1(b)(9)(C). In finding
sophisticated means, the district court considered that Defendant had fraudulently
opened new credit accounts using the victims’ personal identifiers; worked in
concert with his wife to get those identifiers through her business; had
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fraudulently-purchased goods delivered to upscale, vacant homes in order to avoid
detection; and made bursts of purchases on new credit accounts before creditors
shut the accounts down. The district court properly considered these facts, which
support a finding that Defendant’s offense conduct was “especially complex or
especially intricate.” U.S.S.G. § 2B1.1, cmt. n.8(B); see also United States v.
Aragbaye, 234 F.3d 1101, 1108 (9th Cir. 2000) (reading a similar enhancement in
U.S.S.G. § 2T1.4(b)(2) as requiring the offense to be “‘sufficiently more complex’
than routine [offenses]” (quoting United States v. Ford, 989 F.2d 347, 351 (9th Cir.
1993))).
Defendant nevertheless argues that the district court improperly considered
the number of victims, which is covered by U.S.S.G. § 2B1.1(b)(2)(A), and the
value of his extensive purchases, which is covered by U.S.S.G. § 2B1.1(b)(1)(E).
However, the district court properly considered the number of victims—that is, the
number of fraudulent accounts opened—because the use of multiple victims to
obtain multiple cards was a sign of sophistication. The court did not engage in
impermissible double counting because § 2B1.1(b) and the sophisticated means
enhancement serve distinct purposes under the Guidelines. See United States v.
Holt, 510 F.3d 1007, 1011 (9th Cir. 2007) (“[D]ouble counting is . . . authorized
and intended by the Sentencing Guidelines when each invocation of the behavior
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serves a unique purpose under the Guidelines.” (internal quotation marks
omitted)). Moreover, Defendant mischaracterizes the district court’s analysis of
his purchases: the court below considered the manner in which Defendant made his
purchases, not the value of those purchases.
Defendant also unpersuasively challenges the district court’s focus on his
use of the victims’ personal identifiers, relying on U.S.S.G. §§ 2B1.1(b)(10)(C)(ii)
and 2B1.6. Section 2B1.1(b)(10)(C)(ii) addresses merely the possession of
multiple means of identification, not the use of such means. Section
2B1.6—which governs § 1028A sentences—prohibits a sentencing court from
“apply[ing] any specific offense characteristics for the transfer, possession, or use
of a means of identification when determining the sentence” for the offense
underlying a § 1028A conviction. U.S.S.G. § 2B1.6, cmt. n.2. But § 2B1.6 does
not explicitly exclude imposition of § 2B1.1’s sophisticated means enhancement,
see United States v. Garro, 517 F.3d 1163, 1170 (9th Cir. 2008), and nothing in the
Guidelines prohibits a district court from considering a defendant’s use of a means
of identification when the court makes its sophisticated means inquiry.
When viewed together, each of the factors that the district court considered
demonstrate above-average sophistication, even though they appear relatively
simple when viewed in isolation. Accordingly, the district court’s finding of
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sophisticated means was not clearly erroneous, and it did not abuse its discretion in
applying U.S.S.G. § 2B1.1(b)(9)(C)’s two-level enhancement.
Finally, the district court did not abuse its discretion by running Defendant’s
two § 1028A sentences consecutively. Section 1028A gives district courts
discretion to run statutory sentences consecutively, “provided that such discretion
shall be exercised in accordance with any applicable guidelines and policy
statements issued by the Sentencing Commission pursuant to section 994 of title
28.” 18 U.S.C. § 1028A(b)(4). The Guidelines in turn explicitly address
consecutive sentences under § 1028A and offer a non-exhaustive list of factors that
district courts should consider. See U.S.S.G. § 5G1.2, cmt. n.2(B). Although the
Guidelines recommend running § 1028A sentences concurrently where, as here,
the underlying offenses are groupable under § 3D1.2, they do not forbid
consecutive sentences under such circumstances. See U.S.S.G. § 5G1.2, cmt.
n.2(B)(ii) (“Generally, multiple counts of 18 U.S.C. § 1028A should run
concurrently with one another in cases in which the underlying offenses are
groupable under § 3D1.2.” (emphasis added)).
In this case, the district court opted for consecutive sentences because (1)
Defendant victimized multiple people, including some not named in the
indictment; (2) Defendant’s § 1028A conduct substantially harmed the victims;
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and (3) his scheme was sophisticated, extensive, and long-lasting. These three
factors, but especially the number of victims, provide a rational and objective basis
for imposing consecutive § 1028A sentences, particularly where § 1028A does not
itself provide for incremental punishment in cases involving multiple victims.
More victims arguably mean more harm, warranting greater punishment.
The district court could have more specifically addressed why consecutive
sentences were appropriate despite the groupability of Defendant’s underlying
convictions. Nevertheless, both § 1028A and the Guidelines give district courts
discretion to run § 1028A sentences consecutively, and we cannot say that the
district court abused such discretion here.
AFFIRMED.