United States v. Kelvin Otunyo ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 25, 2023 Decided March 31, 2023
No. 21-3053
UNITED STATES OF AMERICA,
APPELLEE
v.
KELVIN OTUNYO,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cr-00251-1)
Jerome A. Madden, appointed by the court, argued the
cause and filed the briefs for appellant.
Kevin Birney, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Chrisellen R. Kolb,
Elizabeth H. Danello, and Christopher B. Brown, Assistant
U.S. Attorneys.
Before: RAO and WALKER, Circuit Judges, and GINSBURG,
Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
2
GINSBURG, Senior Circuit Judge: Kelvin Otunyo and his
collaborators opened bank accounts for fictitious companies,
deposited stolen checks into those accounts, and then cashed
out. Otunyo got caught and pleaded guilty to two counts of
bank fraud, one count of aggravated identity theft, and two
counts of conspiracy to launder money. The district court,
Howell, C.J., sentenced Otunyo to 90 months in prison. On
appeal, Otunyo raises numerous legal arguments, but they all
lack merit. We therefore affirm the judgment of the district
court.
I. Background
We begin by recounting the events leading up to and
including Otunyo’s sentencing.
A. Otunyo’s First Indictment
A grand jury initially returned an indictment against
Otunyo for two counts of bank fraud and one count of
aggravated identity theft. 18 U.S.C. §§ 1344(2), 1028A(a)(1).
In the schemes alleged in the first indictment, Otunyo and his
then-girlfriend defrauded two banks using the same means.
Otunyo first gave his girlfriend a stolen personal identification
card and a stolen social security number. He then told his
girlfriend to use the stolen identity to set up corporations for
fictitious companies, and to set up bank accounts for those
companies. In the final step, Otunyo gave his girlfriend two
stolen checks worth collectively more than $50,000. He told
her to deposit the checks in the fraudulent accounts so they
could get the funds.
3
B. Otunyo’s Debriefing Agreement
After an extended back and forth with his attorney and the
Government, Otunyo met with the Government for an
interview, hoping to obtain a favorable plea bargain. In a
written agreement, the Government promised that “except as
provided in paragraphs two and three below, no statements
made by or other information provided by [Otunyo] during the
voluntary debriefing(s) will be used directly against [Otunyo]
in any criminal proceeding.” Paragraph two of the agreement,
however, said that “the Government may make derivative use
of and may pursue any investigative leads, in this or any other
investigation, suggested by any statements made by, or other
information provided by” Otunyo. Paragraph two further
warned Otunyo that “any statements made during this
debriefing are voluntarily made [by him], rather than
compelled,” and would, therefore, not be considered a form of
“compelled” self-incrimination. For that reason, the agreement
also warned that Otunyo’s statements would not enjoy the
protections outlined by the Supreme Court in Kastigar v.
United States, 406 U.S. 441, 461–62 (1972) (noting that a
criminal defendant “need only show that he testified under a
grant of immunity in order to shift to the government the heavy
burden of proving that all of the evidence it proposes to use was
derived from legitimate independent sources”).
Otunyo and his attorney signed the agreement. On the
signature page, Otunyo acknowledged he had “read every
word” of the agreement, that his attorney had “fully explained”
its terms, and that he did “understand and agree to the contents
of this letter.” Otunyo’s attorney also acknowledged that he had
“read each page of this debriefing agreement, reviewed it in its
entirety with [Otunyo], and discussed fully with [Otunyo] each
of the provisions of the agreement.”
4
During the ensuing interview, Otunyo gave the
Government the password to his cellphone.
C. Otunyo’s Superseding Indictment
The Government found a trove of incriminating messages
on Otunyo’s cellphone. A grand jury later returned a
superseding indictment against Otunyo based upon this and
other new evidence. The superseding indictment included the
three original counts, plus two new counts for conspiracy to
launder money in violation of 18 U.S.C. § 1956(h).
The two new counts for conspiracy to launder money
involved three new schemes of bank fraud. The schemes of
bank fraud followed a similar playbook. Otunyo and his
collaborators set up fictitious companies, opened bank
accounts for those companies under false pretenses, and
deposited stolen checks to get the funds. Unlike the schemes
alleged in the first two counts, however, the fraud schemes
involved at least eight participants and more money, and the
money obtained was laundered by Otunyo and his conspirators
through shell companies, bank transfers, checks, and debit
withdrawals. All told, these bank fraud and laundering schemes
involved the theft of more than $303,000.
D. Otunyo’s Request for a Hearing Under Kastigar
Otunyo claims the Government used his disclosure of the
password to unlock his cellphone and find the incriminating
messages that led to the superseding indictment, worsening his
legal predicament.1
1
The district court credited the Government’s evidence that the FBI
cracked the password before the meeting. We do not rely upon this
evidence.
5
Through a new court-appointed attorney, Otunyo
requested an evidentiary hearing under Kastigar and the
dismissal of the superseding indictment as a violation of his
privilege against self-incrimination protected by the Fifth
Amendment to the Constitution of the United States. Otunyo
alleged he did not know the Government could make derivative
use of his words, including using his revealed password to
unlock his cell phone. Otunyo alleged he had instead
understood he would have complete or “transactional”
immunity for anything he said during the interview.
After hearing testimony from several witnesses, including
Otunyo and his former attorney, the district court denied
Otunyo’s motion. The court found Otunyo’s “bald assertions”
incredible. As the court explained, Otunyo’s former attorney
had testified that he discussed the agreement several times with
Otunyo before the meeting, and that he had specifically
explained the limited scope of the immunity afforded by the
agreement. The testimony also showed the Government had
explained the entire agreement during the meeting before
Otunyo signed it. The Government had explained the scope of
the promised immunity to Otunyo with a vivid example: If,
during the meeting, Otunyo confessed he had killed someone
and buried the body in his backyard, then the Government
would not be able to use Otunyo’s confession directly against
him in a criminal proceeding. On the other hand, the
Government would be able to search Otunyo’s backyard for
evidence of a dead body and a shovel with his fingerprints. It
could then use the dead body and shovel as evidence against
him in a criminal proceeding. Otunyo said he remembered a
story about a dead body and a shovel. Otunyo’s attorney
corroborated the story.
6
Based upon this record evidence, and considering
Otunyo’s education and sophistication, the district court found
that Otunyo’s assertion was “belied by the hearing record.”
E. Otunyo’s Plea of Guilty and Sentencing
Otunyo eventually pleaded guilty to all five counts of the
superseding indictment, without a plea agreement.
The district court later held a lengthy sentencing hearing.
When calculating the recommended sentencing range under the
Guidelines, the district court began by grouping the counts of
bank fraud and the counts of money laundering. Specifically,
the court grouped the counts of bank fraud and the counts of
money laundering into two separate subgroups under
§ 3D1.2(d) of the Guidelines, and then grouped all counts
together into a single group under “3D1.2(c) as involving
substantially the same harm.”2 Because the district court
grouped the four counts under § 3D1.2(c), it had to determine
Otunyo’s offense level based upon the “most serious” subgroup
included in the group—i.e., the conduct involved in the counts
of money laundering. U.S.S.G. § 3D1.3(a).
As required by § 3D1.3(a), the district court applied the
specific offense guideline for the counts of money laundering.
2
In response to questions raised by this court at oral argument, the
Government stated the counts should not have been grouped under
paragraph (c). Oral Argument at 17:12–20:21. We have no occasion
to decide this forfeited issue. The Government made no objection to
the grouping decision when asked by the district court, never cross-
appealed, and never raised the error in its brief. The error, if anything,
would redound to the benefit of Otunyo, as it excludes offense
conduct for the counts of bank fraud, U.S.S.G. § 3D1.3(a), so he
suffers no prejudice. We therefore assume, without deciding, that the
court properly grouped the counts under paragraph (c).
7
See id. § 2S1.1. In order to establish the base offense level for
money laundering, however, the court first had to apply the
guideline for “the underlying offense from which the laundered
funds were derived.” Id. § 2S1.1(a)(1). Money laundering
always involves an underlying predicate crime, and this cross-
reference recognizes that the underlying criminal conduct
remains blameworthy even when it is not charged. The
laundered funds in this case were derived from bank fraud, so
the district court applied the guideline for bank fraud. Id.
§ 2B1.1.
After applying the guideline for bank fraud and
determining the base offense level for money laundering, the
district court applied two enhancements, adjusted the offense
level upward based upon Otunyo’s aggravating role as a
supervisor and downward based upon his acceptance of
responsibility, and ultimately calculated a recommended range
of 70 to 87 months incarceration for Otunyo’s criminal history
category of II, as detailed in this table:
Guideline Type Offense
2S1.1 Level
2B1.1(a)(1) Base offense level for bank 7
fraud
2B1.1(b)(1)(G) More than $250k fraud +12
enhancement
2B1.1(b)(10)(c) Sophisticated fraud +2
2S1.1(a)(1) Base offense level for 21
laundering
2S1.1(b)(2)(B) 18 U.S.C § 1956 +2
conviction (conspiracy to
launder money)
2S1.1(b)(3) Sophisticated laundering +2
3B1.1(b) Manager/Supervisor +3
adjustment
8
3E1.1(a) Acceptance adjustment -2
Total 26
(Range) (70-87
months)
Having determined the recommended sentencing range under
the Guidelines, the district court sentenced Otunyo. The court
chose as a starting point the middle of the range, 78 months. It
then granted Otunyo two downward departures: a six-month
downward departure to account for Otunyo’s mandatory post-
incarceration deportation from the United States as a criminal
alien, see United States v. Smith, 27 F.3d 649, 655 (D.C. Cir.
1994), and another six-month downward departure to account
for conditions of confinement during the Covid-19 pandemic.
The district court also considered—and rejected—Otunyo’s
request for a variance to address an alleged “unwarranted
sentencing disparity,” referring to the sentence given to another
defendant. The district court ultimately sentenced Otunyo to 66
months in prison for his bank fraud and money laundering
offenses, which was below the range recommended in the
Guidelines. After adding the mandatory consecutive two-year
sentence for his aggravated identity theft, the district court
sentenced Otunyo to 90 months in prison.
II. Analysis
Otunyo raises many arguments on appeal. We have
considered them all, and we reject them all, but we address only
those that warrant treatment in a published opinion.
A. Otunyo Voluntarily Disclosed His Cellphone Password
Under Kastigar v. United States, a witness compelled to
testify in exchange for immunity who is later indicted may
“shift to the government the heavy burden of proving that all
9
of the evidence it proposes to use was derived from legitimate
independent sources.” 406 U.S. at 461–62. The Government
will attempt to meet that burden in a so-called “Kastigar
hearing.”
Kastigar does not help Otunyo “for the simple reason that
the government did not compel him to provide any
incriminating information; he did so voluntarily pursuant to the
debriefing agreement.” In re Sealed Case, 686 F.3d 799, 801
(2012). “The debriefing agreement alone determines the scope
of [Otunyo’s] immunity, and its terms are clear.” Id. at 802(citation omitted). Otunyo’s agreement allowed the
Government to use his voluntary disclosure of his cellphone
password to find evidence against him. “Therefore, the
government did not need an independent source for the
information it used to draft charges against [Otunyo], and the
district court did not err when it failed to convene a hearing on
the matter.” Id.Otunyo argues his disclosure was compelled because he
misunderstood the promised immunity. He asserts he had
“knowingly” to agree to the terms of the proffer letter in order
voluntarily to forego the privilege. He appears to assume the
standard governing the waiver of the privilege in a suspect’s
unwarned custodial interrogation or a defendant’s plea of guilty
applies here. See, respectively, Miranda v. Arizona, 384 U.S.
436, 444 (1966); Brady v. United States, 397 U.S. 742, 748
(1970). Like Otunyo, the district court assumed this standard
governed.
We are not so sure. As a general rule, “it is settled that
forfeiture of the privilege against self-incrimination need not
be knowing.” Salinas v. Texas, 570 U.S. 178, 190 (2013)
(plurality opinion). “Almost without exception, the
requirement of a knowing and intelligent waiver has been
10
applied only to those rights which the Constitution guarantees
to a criminal defendant in order to preserve a fair trial.”
Schneckloth v. Bustamonte, 412 U.S. 218, 237 (1973). One
exception to this rule, recognized in Miranda, applies to a
criminal suspect’s “unwarned custodial interrogation,” and is
justified by the “uniquely coercive nature” of this kind of
setting. Salinas, 570 U.S. at 184. A voluntary interview coming
after an arraignment informing a defendant of his right to
remain silent, see Fed. R. Crim. P. 5(d)(1)(E), negotiated by
counsel, and preceded by a written warning that statements
would be voluntary and therefore not subject to the protections
of the privilege against self-incrimination, seems far removed
from the coercive “unwarned custodial interrogation” at issue
in Miranda. Id. Moreover, requiring knowledge of the terms of
an agreement in this setting would invite frequent “oath-
swearing battles,” with the attendant costs in the form of
drawn-out evidentiary hearings and delays.
Nonetheless, we have not received adequate briefing on
this issue from the parties, and we need not address it now. For
even if the Fifth Amendment required that Otunyo understand
the immunity promised by the Government, that standard was
satisfied here. No evidence other than Otunyo’s testimony
lends support to his alleged misunderstanding of the
agreement, and the district court found that Otunyo’s testimony
was not credible. We review that credibility finding for clear
error. United States v. Cunningham, 145 F.3d 1385, 1392 (D.C.
Cir. 1998). Under this standard of review, a factual “finding
that is ‘plausible’ in light of the full record—even if another is
equally or more so—must govern.” Cooper v. Harris, 137 S.
Ct. 1455, 1465 (2017).
The finding of the district court is certainly “plausible.”
The agreement Otunyo signed is clear. Although the legal
nuances may be difficult for an unaided layman to grasp,
11
Otunyo acknowledged that his attorney explained the terms of
the agreement, and that he understood it. The hearing testimony
is consistent with that. Otunyo’s former attorney and a
government attorney had each explained the scope of the
promised immunity to Otunyo before and during the meeting.
Otunyo recalled the vivid story about a dead body and a shovel.
Otunyo spoke English well and was educated and savvy.
Otunyo also dissembled about other matters, implying that the
Government had promised him a visa in exchange for attending
the meeting, only to walk that back on the stand lest the court
find he was “lying.” In short, the agreement and parol evidence
plausibly show that Otunyo understood the agreement. That
finding of fact governs this appeal. We are therefore compelled
to hold, and confidently do hold, that Otunyo understood the
scope of his immunity and gave up his password voluntarily.
B. The District Court Got the Advisory Sentencing Range
Right
Otunyo objects on a number of grounds to the
recommended sentencing range determined by the district
court. We have considered Otunyo’s numerous objections, and
we reject them all, but we discuss only three.
1. The base offense level for the underlying bank
fraud was seven
The base offense level for Otunyo’s money laundering
counts is “[t]he offense level for the underlying offense from
which the laundered funds were derived.” U.S.S.G.
§ 2S1.1(a)(1). Otunyo derived the laundered funds from acts of
bank fraud. The district court, therefore, had to determine the
offense level for the conduct of bank fraud that was the source
of the laundered funds.
12
The guideline applicable to bank fraud, § 2B1.1, provides:
(a) Base Offense Level:
(1) 7, if (A) the defendant was convicted of an offense
referenced to this guideline; and (B) that offense of
conviction has a statutory maximum term of
imprisonment of 20 years or more; or
(2) 6, otherwise.
According to the district court, “the plain text of the guideline
dictates that the defendant’s base offense level should be 7, not
6.” Otunyo nonetheless argues the base offense level for his
conduct of bank fraud should be six. We interpret the text of
the guideline de novo. United States v. Day, 524 F.3d 1361,
1374 (D.C. Cir. 2008).
We agree with the district court. Otunyo’s two convictions
for bank fraud fit squarely under the text of paragraph (a)(1).
Bank fraud (A) is “referenced to this guideline,” see U.S.S.G.
§ 2B1.1 cmt. n.2(A) & app. A, and (B) has a maximum term of
imprisonment of more than 20 years. 18 U.S.C. § 1344. Otunyo
“was convicted of an offense of” bank fraud so, per paragraph
(a)(1), his base offense level is seven.
Otunyo makes a convoluted argument to the contrary,
relying upon the grouping rules, the commentary, and
unpublished dispositions from other circuits. In short, Otunyo
argues that because the district court was determining the
offense level for the “most serious” offenses—the two counts
of money laundering—the court had to ignore Otunyo’s
separate convictions for bank fraud. As Otunyo puts it, the
district court had to focus only upon “the ‘offense of
conviction,’” which he understands as a term of art that means
13
only the “most serious” money laundering offenses that dictate
the offense level under the Guidelines. U.S.S.G. § 3D1.3(a).
A close reading reveals the flaw in Otunyo’s argument.
The text does not say “the” offense of conviction, as he puts it.
It says “an” offense of conviction. This small textual difference
matters. “The chief grammatical function of an is in contrast
with the. It connotes a thing not previously noted or
recognized; the connotes a thing previously noted or
recognized.” Webster’s New Universal Unabridged Dictionary
63 (2nd ed. 1983). The use of the indefinite article “an” does
not refer a reader back to the definite money laundering counts
that are the “most serious” within a group. Rather, “an” is best
read to mean “any one.” Id. The guideline therefore tells a
district court that, if (1) “any one” of the defendant’s
convictions is governed by § 2B1.1 and (2) that offense carries
a maximum term of 20 or more years, then the base offense is
seven.
2. The district court did not double-count Otunyo’s
sophisticated conduct
The district court applied an enhancement to Otunyo’s
underlying acts of bank fraud because his conduct “involved
sophisticated means and [Otunyo] intentionally engaged in or
caused the conduct constituting sophisticated means.” U.S.S.G.
§ 2B1.1(b)(10)(C); see also id. § 2B1.1 cmt. 9(B) (defining
sophisticated means). The district applied another
enhancement because Otunyo was convicted of a conspiracy to
launder money and “the offense involved sophisticated
laundering.” Id. § 2S1.1(b)(3); see also id. § 2S1.1 cmt. 5(A)
(defining sophisticated laundering). On appeal, relying upon
commentary to the guideline for money laundering, Otunyo
argues the district court double-counted sophisticated conduct.
14
The commentary provides:
Non-Applicability of Enhancement. If subsection (b)(3)
applies, and the conduct that forms the basis for an
enhancement under the guideline applicable to the
underlying offense is the only conduct that forms the basis
for application of subsection (b)(3) of this guideline, [then]
do not apply subsection (b)(3).
Id. § 2S1.1 cmt. n.5(B). The commentary modestly clarifies the
scope of the enhancement for sophisticated laundering: For the
enhancement to apply, the conduct must involve at least some
sophisticated laundering. It is not enough that a defendant
engaged in sophisticated criminal acts to obtain control of the
proceeds. For example, if a defendant sells drugs using a highly
sophisticated network of front businesses but engages in no
other “complex or intricate” efforts on the back end to conceal
the unlawful origin of the drug sale proceeds, id. § 2S1.1 cmt.
5(A), then the enhancement for sophisticated laundering does
not apply.
The question, then, is whether “the only conduct that
form[ed] the basis for” the enhancement was the sophisticated
bank fraud. It was not. Otunyo’s money laundering involved
separate “complex and intricate” means of concealing the
funds, including fictitious entities, shell corporations, and
several levels of transactions or “layering.” As the district court
explained, Otunyo “used separate fraudulent bank accounts to
remove the funds stolen through the check fraud scheme by
drawing checks on the first fraudulent account into which the
stolen funds were originally deposited, made payable to a
second fraudulent bank account.” One scheme alone involved
two fictitious entities used to launder the proceeds as a payment
for a car bought at auction and a payment to a petroleum
company. Otunyo may have engaged in even more
15
sophisticated acts of bank fraud, but that is not the test. The test
is whether “the only conduct that forms the basis” for the
enhancement is the same as the sophisticated conduct in the
bank fraud. That test is not met here because at least some of
Otunyo’s laundering conduct was also “complex and intricate.”
We therefore reject this argument.
3. Otunyo was a supervisor
Otunyo next argues the district court erred when applying
an upward adjustment for Otunyo’s aggravating role as a
“manager or supervisor.” U.S.S.G. § 3B1.1(b). That guideline
provides:
If the defendant was a manager or supervisor (but not an
organizer or leader) and the criminal activity involved five
or more participants or was otherwise extensive, increase
by 3 levels.
Otunyo has conceded the money laundering involved five or
more participants. In fact, it involved at least eight participants.
The only question is whether the district erred in concluding
Otunyo was a “manager or supervisor,” a question we review
with “due deference.” United States v. Olejiya, 754 F.3d 986,
990 (D.C. Cir. 2014).
Ordinarily, we would have no difficulty upholding the
conclusion of the district court. The record is replete with
evidence of Otunyo’s role as a supervisor. We have previously
held that similar decision-making authority and control over
other members of a check fraud conspiracy earns a middle-rung
enhancement as a supervisor. Id. at 991–92. In the parlance of
check fraud, Otunyo recruited, trained, and directed “runners”
to cash checks and register dummy corporations. Id. at 991.
“[A]lthough [Otunyo] was not the kingpin, he was also not
16
merely a runner but instead at least a manager or supervisor.”
Id.As Otunyo points out for the first time on appeal, however,
the commentary in the guideline for money laundering limits
the scope of the supervisory activity that may be considered
when applying the adjustment. The commentary provides:
Notwithstanding §1B1.5(c), in cases in which subsection
(a)(1) applies [as it does here], application of any Chapter
Three adjustment shall be determined based on the offense
covered by this guideline (i.e., the laundering of criminally
derived funds) and not on the underlying offense from
which the laundered funds were derived.
U.S.S.G § 2S1.1 cmt. n.2(C). As the Third Circuit has
explained in plain English, this commentary
directs that adjustments contained in Chapter 3 are to be
applied based on the money laundering behavior alone, not
on the underlying offense from which the laundered funds
were derived. In other words, the [management or
supervision] has to be manifested in how the money is
laundered, not in how the money was gained.
United States v. Capps, 977 F.3d 250, 255 (3d Cir. 2020). The
district court, therefore, had to decide whether Otunyo was a
manager or supervisor of the activity based solely upon his role
in supervising “the laundering of criminally derived funds.”
U.S.S.G. § 2S1.1 cmt. n.2(C).
Otunyo argues the district court overlooked this
commentary, failed to separate the relevant conduct, and
erroneously applied an adjustment based upon Otunyo’s role in
supervising “the conduct of the bank fraud scheme,” not the
17
laundering scheme. Otunyo never raised this argument before
the district court. We therefore review for plain error. Fed. R.
Crim. P. 52(b).
Several circuits have already held that a failure to adhere
to this commentary when applying an adjustment amounts to
plain error. See Capps, 977 F.3d at 257 (“Given the text of
Commentary Note 2(c), we think the error is plain.”); United
States v. Arellanes-Portillo, 34 F.4th 1132, 1140 (10th Cir.
2022) (same); United States v. del Carpio Frescas, 932 F.3d
324, 332–33 (5th Cir. 2019) (same); see also United States v.
Salgado, 745 F.3d 1135, 1138–39 (11th Cir. 2014) (concluding
there was error on de novo review).
For our part, we have held an error is obvious enough if it
runs afoul of a clear legal norm, such as the text of a Sentencing
Commission policy statement or the clear text of a guideline.
United States v. Long, 997 F.3d 342, 357 (D.C. Cir. 2021);
United States v. Brown, 892 F.3d 385, 400 (D.C. Cir. 2018).
This case is not so straightforward, however. The commentary
is clear, but unlike the text of a guideline, the commentary is
not a binding legal norm, and we do not defer to the
commentary if it is “inconsistent with, or a plainly erroneous
reading of, that guideline.” Stinson v. United States, 508 U.S.
36, 38 (1993). Section 1B1.5(c), moreover, says that a Chapter
3 adjustment is applied to the underlying offense conduct
“except as otherwise expressly provided.” One would think an
express exception should prominently appear in the text of the
guideline, not in an easily overlooked commentary note.
Reasonable jurists may question why overlooking an exception
that appears only in the commentary should be considered
“obvious” error. See del Carpio Frescas, 932 F.3d at 342(Oldham, J., concurring) (“Does this strike anyone as plain and
obvious?”).
18
We need not, and do not, decide whether there was error,
or whether the error was obvious enough to be plain. The
Government argues that “even if the district court should have
only looked at the money-laundering activity, there still was
ample evidence to support the enhancement.” We take this to
mean the alleged error does not affect “substantial rights”
because the record shows that Otunyo was in fact a supervisor
of the money laundering. Fed. R. Crim. P. 52(b); see also Greer
v. United States, 141 S. Ct. 2090, 2098 (2021) (“[A]n appellate
court conducting plain-error review may consider the entire
record—not just the record from the particular proceeding
where the error occurred.”).
In order to show the error affected his substantial rights on
plain error review, Otunyo must “show a reasonable
probability that, but for the error, the outcome of the
proceeding would have been different.” Molina-Martinez v.
United States, 578 U.S. 189, 194 (2016). He has not made this
showing. Otunyo gave several supervising instructions to “Co-
Conspirator F.” We find at least three telling examples of
supervision that together compel an adjustment.
First, during one scheme, Otunyo told Co-Conspirator F to
launder funds by sending a $16,500 check for an “Auction car
payment” from a fraudulent account to a fictitious company
created by Otunyo. Second, during this same scheme, Otunyo
messaged Co-Conspirator F a fake identity so the co-
conspirator could establish a personal bank account to launder
funds. Third, Otunyo instructed Co-Conspirator F to launder
funds by making withdrawals and debit transactions. These
instructions are compelling evidence that Otunyo supervised
the money laundering. He was in charge of the runners in the
scheme not just when they carried out the check fraud, but also
when they concealed the proceeds of the fraud. Otunyo,
19
therefore, fails to show a reasonable probability of a different
outcome.
C. Otunyo’s Sentence Was Reasonable
Otunyo argues his sentence was unreasonably long. He
compares his sentence to the sentence of Michael Afram Orji,
a fraudster with whom Otunyo had previously worked. The
comparison is an odd one because Orji received a ten-year
prison sentence for bank fraud and money laundering, almost
double the sentence the district court imposed upon Otunyo.
Otunyo complains the district court gave Orji two variances it
did not give to him. By failing to give him the same variances,
Otunyo argues, the district court did not give enough weight to
“the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.” 18 U.S.C. § 3553(a)(6).
Our “review of criminal sentences for substantive
reasonableness is quite deferential. It will be the unusual case
when an appeals court can plausibly say that a sentence is so
unreasonably high or low as to constitute an abuse of
discretion.” United States v. Knight, 824 F.3d 1105, 1110–11
(D.C. Cir. 2016) (quotation marks omitted). We presume a
sentence within the range recommended by the Guidelines is
not excessive, and the district court in this case started in the
middle of the recommended range and then granted two
downward departures. United States v. Law, 806 F.3d 1103,
1106 (D.C. Cir. 2015). Our presumption is especially relevant
when a defendant alleges an unwarranted disparity, as
“avoidance of unwarranted disparities was clearly considered
by the Sentencing Commission when setting the Guidelines
ranges.” Gall v. United States, 552 U.S. 38, 54 (2007). “The
best way to curtail ‘unwarranted’ disparities is to follow the
Guidelines, which are designed to treat similar offenses and
20
offenders similarly.” United States v. Bartlett, 567 F.3d 901,
908 (7th Cir. 2009).
Otunyo fails to show any abuse of discretion. To begin,
any comparison between himself and Orji is inapt. Orji had a
far more extensive criminal history, so he does not have a
“similar record[].” Orji also engaged in more egregious
criminal conduct, so he was not found guilty of “similar
conduct.” Because Orji was far more culpable and therefore
faced a longer sentence, the district court reasonably found the
comparison inapt.
Otunyo seems to think the difference in culpability should
cut in his favor, not against him. He complains that, in giving
Orji a variance, the district court gave weight to Orji’s speedy
decision to plead guilty and cooperate, and claims this in effect
punished Otunyo for being adversarial and therefore violates
his due process rights. Far from showing the disparity was
“unwarranted” or unconstitutional, this shows only that Otunyo
and Orji were not similarly situated, and therefore the disparity
in their treatment was warranted. Bartlett, 567 F.3d at 908–09.
“[I]t is not forbidden to extend a proper degree of leniency
in return for guilty pleas.” Corbitt v. New Jersey, 439 U.S. 212,
223 (1978). “The whole notion of showing leniency to some
deserving defendants–that is, of treating them more mildly than
others–requires withholding leniency from others who appear
less deserving.” United States v. Jones, 997 F.2d 1475, 1478
(D.C. Cir. 1993). It is not unconstitutional, for example, for a
judge to show less leniency to a defendant who acknowledges
guilt only after conviction than to “an otherwise identical
defendant who showed greater acceptance of responsibility by
acknowledging his guilt at an earlier stage.” Id. at 1477; see
also United States v. Lopesierra-Gutierrez, 708 F.3d 193, 208
(D.C. Cir. 2013) (“That some defendants pled guilty while
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others did not provides a perfectly valid basis for a sentencing
disparity, and such disparity imposed no impermissible burden
on [the defendant’s] jury-trial right.” (footnote omitted)). We
think it is equally lawful for a court to give a downward
variance to a more cooperative defendant while denying the
variance to a more litigious defendant. Otunyo is not entitled to
benefit because someone else was more cooperative.
Otunyo’s argument also fails for a second, more basic
reason. Section 3553(a)(6) is focused solely upon “sentence
disparities.” This tells the court to evaluate the difference in the
outcome (the sentence), not differences in the sentencing
process.
III. Conclusion
In sum, we reject all of Otunyo’s arguments. The judgment
of the district court is, therefore,
Affirmed.