United States v. Emmanuel Kazeem ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 1 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30145
Plaintiff-Appellee, D.C. No. 1:15-cr-00172-AA-1
v.
MEMORANDUM*
EMMANUEL OLUWATOSIN KAZEEM,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted March 2, 2020**
Portland, Oregon
Before: WOLLMAN,*** FERNANDEZ, and PAEZ, Circuit Judges.
Emmanuel Oluwatosin Kazeem was found guilty of one count of conspiracy
to commit mail and wire fraud, in violation of 18 U.S.C. §§ 1349, 1341, and 1343,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Roger L. Wollman, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
five counts of mail fraud, in violation of 18 U.S.C. § 1341, four counts of wire
fraud, in violation of 18 U.S.C. § 1343, and nine counts of aggravated identity
theft, in violation of 18 U.S.C. § 1028A(a)(1) and (c)(5). We affirm the judgment
and sentence, but we vacate the restitution portion of Kazeem’s judgment and
remand for clarification regarding Kazeem’s payment obligation.
Kazeem argues that the district court clearly erred by excluding certain time
under the Speedy Trial Act’s “ends of justice” exception. See 18 U.S.C.
§ 3161(h)(7); United States v. Butz, 982 F.2d 1378, 1380 (9th Cir. 1993)
(reviewing the district court’s factual findings regarding speedy trial violations for
clear error and questions of law de novo). We conclude that the district court had
valid reasons for twice granting continuance motions in this complex case
involving multiple codefendants. The court did not clearly err in finding the
additional time excludable under the “ends of justice” exception. See Butz, 982
F.2d at 1381. (“[T]rial delay due to the continuance granted to [a defendant’s]
codefendants applies to [the defendant] as excludable time.”).
Kazeem also challenges his sentence, arguing that the district court
incorrectly applied the intended loss instead of actual loss from his tax fraud
scheme and used an unverifiable loss amount to determine his base offense level.
As to both issues, we disagree. The district court properly used the loss Kazeem
intended to cause in his tax returns scheme, rather than the loss Kazeem actually
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caused. See United States v. Santos, 527 F.3d 1003, 1008 (9th Cir. 2008) (“[T]he
district court may reasonably infer that the participants in a counterfeiting scheme
intend to take as much as they know they can.”). Moreover, the intended loss
calculation was verifiable because the Internal Revenue Service’s agent testified
that it was calculated only from those tax returns directly linked to Kazeem or one
of his coconspirators.
The district court ordered Kazeem to pay more than $12 million in
restitution to the victims of his crimes. The written judgment states that the entire
amount is “due immediately,” but it also sets out a schedule of monthly payments
that Kazeem must make when released from custody. Because the restitution
schedule is “internally inconsistent,” we vacate it and remand the case for a
clarification of Kazeem’s payment obligations. See United States v. Holden, 908
F.3d 395, 404 (9th Cir. 2018).
AFFIRMED IN PART, REMANDED IN PART
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