United States v. Olabimpe Olejiya , 754 F.3d 986 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2014 Decided June 10, 2014
No. 12-3082
UNITED STATES OF AMERICA,
APPELLEE
v.
OLABIMPE M. OLEJIYA, ALSO KNOWN AS BIM,
ALSO KNOWN AS BIMPE,
APPELLANT
No. 12-3090
UNITED STATES OF AMERICA,
APPELLEE
v.
OLUYINKA AKINADEWO, ALSO KNOWN AS OLU BLACK,
ALSO KNOWN AS OLU DUDU, ALSO KNOWN AS OLU,
APPELLANT
Appeals from the United States District Court
for the District of Columbia
(No. 1:11-cr-00150)
2
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant Akinadewo. Richard Seligman,
appointed by the court, argued the cause for appellant Olejiya.
A.J. Kramer, Federal Public Defender was on brief. Tony
Axam Jr., Assistant Federal Public Defender, entered an
appearance.
Anne Y. Park, Assistant United States Attorney, argued the
cause for the appellee. Ronald C. Machen Jr., United States
Attorney, and Elizabeth Trosman, Suzanne G. Curt and Bryan
G. Seeley, Assistant United States Attorneys were on brief.
Before: HENDERSON and MILLETT, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Olabimpe
Olejiya and Oluyinka Akinadewo both pleaded guilty to one
count of conspiracy to commit bank fraud based on their
participation in a scheme that involved opening fraudulent
bank accounts in the name of unwitting individuals, funding
the accounts with fraudulent checks and wire transfers and
withdrawing funds before the accounts’ fraudulent nature was
detected. They now raise parallel challenges to their
sentences, claiming that the district court erred in calculating
their respective United States Sentencing Guidelines offense
levels by (1) improperly applying an aggravated role
enhancement of three levels for Olejiya and four for
Akinadewo, see U.S.S.G § 3B1.1, and (2) failing to make the
factual findings necessary to support a 12-level increase for
both based on the amount of intended loss involved in the
conspiracy, see U.S.S.G. § 2B1.1(b)(1). For the reasons that
follow, we affirm the district court’s judgments.
3
I. Background
As admitted by Olejiya and Akinadewo in their plea
proceedings, the conspiracy lasted from April 2007 to
December 2007. The conspiracy’s goal—enriching its
members—was achieved by the following overt acts. On
September 12, 2007, two checking accounts were opened at
E*Trade via the internet, using the name, birthdate and social
security number of A.S. A.S., however, was unaware of the
accounts and had given no one permission to use his personal
information. In the following months, members of the
conspiracy transferred $109,200 from A.S.’s legitimate
account at the Armed Forces Bank to the two fraudulent
E*Trade accounts set up in his name and withdrew over
$50,000 of that amount before the fraud was detected.
Moreover, beginning as early as July 2007, numerous calls
from a cell phone belonging to Akinadewo were made to both
Armed Forces Bank and E*Trade in an apparent effort to
monitor accounts. Akinadewo did not have a legitimate
account at either bank. On October 6 and 8, 2007, Akinadewo
used a debit card associated with one of the fraudulent E*Trade
accounts to purchase twelve money orders, each worth $500,
from a Walmart in Landover Hills, Maryland. On October 7,
2007, Olejiya purchased four $500 money orders from three
Walmart stores in Laurel, Bowie and Landover Hills,
Maryland.
Another fraudulent checking account in the name of
A.S.—this one at Branch Banking and Trust (BB&T)—was
opened via the internet on August 25, 2007. Although
Akinadewo did not have an account at BB&T, six calls were
made to the bank from his phone during the time of the
conspiracy. On September 11, 2007, Akinadewo made an
initial deposit of $50 in the account at a BB&T branch in the
District of Columbia. Three days later, he made another $50
4
deposit at a Maryland branch. On October 3, 2007, using an
ATM in Silver Spring, Maryland, Akinadewo deposited a
$20,000 check, drawn on one of the fraudulent E*Trade
accounts, into the fraudulent BB&T account. The next day,
he attempted to repeat the maneuver with a $30,000 check
drawn on one of the E*Trade accounts but it bounced. All
told, members of the conspiracy successfully withdrew over
$30,000 from the BB&T account by cashing checks drawn on
the account and making ATM withdrawals.
On November 3, 2007, the name, birthdate and social
security number of another unwitting individual, U.J., were
used to open another BB&T checking account via the internet.
That account was funded with $8,000 transferred from yet
another fraudulent account, this one opened with Charles
Schwab in the name of A.S. According to Olejiya, on
November 30, 2007, he contacted Akinadewo and informed
him that another conspirator, Samuel Akinleye, was willing to
cash a check written on the fraudulent BB&T account in the
name of U.J. Akinadewo then met up with Olejiya and
Akinleye, wrote a $4,000 check to Akinleye and signed U.J’s
name. Akinadewo instructed Akinleye to cash the check and
return the money to Akinadewo, which Akinleye did in
exchange for a portion of the proceeds. During his plea
colloquy, Akinadewo denied any recollection of writing the
check on November 30, 2007, instead stipulating more
generally that “during the time period of the conspiracy, [he]
had access to checks in others’ names, and provided some of
these checks to co-conspirators to either cash or deposit.”
4/20/12 Tr. 30–31.
All told, the conspiracy resulted in actual losses of
$90,987.48 before the fraud was detected, which amount
includes all of the funds withdrawn from the fraudulent
accounts. When the funds that passed through the fraudulent
5
accounts are added, the intended loss of the conspiracy totals
$363,939.76.
On May 13, 2011, a grand jury returned a one-count
indictment charging Olejiya and Akinadewo with conspiracy
to commit bank fraud in violation of 18 U.S.C. §§ 1344 and
1349. On March 22, 2012, Olejiya entered a plea of guilty.
Olejiya’s presentence report (PSR) calculated his Guidelines
range at 41-51 months, based on a criminal history category of
II and an offense level of 21. The offense level included a
3-level enhancement, to which Olejiya objected, for his role as
a “manager or supervisor.” See U.S.S.G. § 3B1.1(b). It also
included a 12-level increase for an intended loss from the
offense greater than $200,000, to which Olejiya objected solely
on fairness grounds, asking the district court to grant a variance
from the Guidelines. See U.S.S.G. § 2B1.1(b)(1)(G). At the
sentencing hearing, the district court found that Olejiya
qualified for the 3-level aggravated role enhancement and the
12-level increase and sentenced him to 35 months’
imprisonment.1 He timely appealed.
Akinadewo pleaded guilty on April 20, 2012. His PSR
calculated the applicable Guidelines range at 41-51 months,
based on a criminal history category of II and an offense level
of 21. Akinadewo’s offense level included a 4-level
enhancement for his role as an “organizer or leader,” see
U.S.S.G. § 3B1.1(a), and a 12-level increase for the loss
amount, see U.S.S.G. § 2B1.1(b)(1)(G). Like Olejiya,
Akinadewo objected to the aggravated role enhancement and
made a similar “fairness” objection to the loss amount. At the
1
The district court sentenced Olejiya to a six-month concurrent
term on one count of misuse of a passport in violation of 18 U.S.C.
§ 1544, which charge resulted from Olejiya’s attempt to flee to
Canada to avoid prosecution.
6
sentencing hearing, the district court found that Akinadewo
qualified for the 4-level aggravated role enhancement and the
12-level increase and sentenced him to 46 months’
imprisonment. He timely appealed.
II. Aggravated Role
Olejiya and Akinadewo both argue that the district court
erred by enhancing their respective offense levels by three and
four points for their aggravated roles in the offense. “In
reviewing a sentencing decision, we address purely legal
questions de novo, accept the district court’s factual findings
unless they are clearly erroneous, and give ‘due deference’ to
that court’s application of the Guidelines to the facts.” United
States v. Saani, 650 F.3d 761, 765 (D.C. Cir. 2011). The
district court’s fact-specific determination that a defendant was
an “organizer or leader” or a “manager or supervisor” warrants
due deference, see United States v. Quigley, 373 F.3d 133, 138
(D.C. Cir. 2004); United States v. Yeh, 278 F.3d 9, 15 (D.C.
Cir. 2002), a standard which reflects “the recognition that the
district courts should be afforded some flexibility in applying
the guidelines to the facts before them,” United States v. Kim,
23 F.3d 513, 517 (D.C. Cir. 1994); see also United States v.
Tann, 532 F.3d 868, 874 (D.C. Cir. 2008) (due deference
standard survives United States v. Booker, 543 U.S. 220
(2005)).
The Guidelines provide for an increase in the offense level
if the defendant played an aggravated role in the offense:
(a) If the defendant was an organizer or leader of a
criminal activity that involved five or more
participants or was otherwise extensive, increase by 4
levels.
7
(b) 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 . . . .
U.S.S.G. § 3B1.1. We consider several factors in applying the
aggravated role enhancement, including
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
Id. cmt. n.4; see also United States v. Graham, 162 F.3d 1180,
1185 n.5 (D.C. Cir. 1998) (although factors distinguish
between 3- and 4-level enhancement, they are relevant to
whether any aggravated role enhancement applies). No single
factor is dispositive. Graham, 162 F.3d at 1185; see also
United States v. Brodie, 524 F.3d 259, 270 (D.C. Cir. 2008);
United States v. Kelley, 36 F.3d 1118, 1129 (D.C. Cir. 1994).
A. Olejiya
Olejiya argues that the district court erred in applying the
“manager or supervisor” enhancement because he did not
exercise “control” over criminally liable subordinates. The
defendant must manage or supervise one or more other
participants in the criminal activity—not simply the property
or assets of the conspiracy, as, according to Olejiya, the district
court concluded—in order to warrant an aggravated role
enhancement. U.S.S.G. § 3B1.1 cmt. n.2. We have said that
“[a]ll persons receiving an enhancement [under § 3B1.1] must
8
exercise some control over others.” Graham, 162 F.3d at
1185; accord United States v. Clark, 747 F.3d 890, 896 (D.C.
Cir. 2014); United States v. Smith, 374 F.3d 1240, 1250 (D.C.
Cir. 2004). We elaborated on this statement in Quigley,
explaining that “[w]e understand the concept of ‘control’ or
‘authority,’ implicit in the notion of ‘management’ or
‘supervision,’ to connote some sort of hierarchical
relationship, in the sense that an employer is hierarchically
superior to his employee.” 373 F.3d at 140.2
During Olejiya’s sentencing hearing, the district court
heard testimony from Special Agent Spencer Brooks of the
Federal Bureau of Investigation (FBI). He explained that
conspirators in this type of bank fraud play different roles.
High-level participants typically control the fraudulent bank
accounts, checkbooks and debit cards and are responsible for
funding the accounts. Low-level participants—often referred
to as “runners”—are typically recruited by high-level
participants to do the front-line work of cashing fraudulent
checks. In exchange, the runners receive a small portion of
the proceeds. Agent Brooks testified that, consistent with this
model, Olejiya recruited runners, including Samuel Akinleye
and Okorie Awa, to the conspiracy. Awa was caught on
camera cashing three fraudulent checks in the amounts of
$3,000, $4,500 and $5,500 and Agent Brooks testified that,
according to Awa, Olejiya gave Awa the checks, told him to
cash them and paid him between $500 and $1,000 for his
2
One judge of this Court has noted tension between Graham’s
suggestion that “control” is required for an aggravated role
enhancement and the fact that control is but one of several
non-dispositive factors listed in the application notes. See Clark,
747 F.3d at 897–99 (Randolph, J., concurring). We need not
explore that tension here, however, because the district court
correctly concluded that both Olejiya and Akinadewo exercised
control over other participants.
9
effort. The district court credited Agent Brooks’ testimony
and concluded that, although Olejiya was not the kingpin, he
was also not merely a runner but instead at least a manager or
supervisor.
Seeing no error in the district court’s factual findings and
granting due deference to the district court’s application of the
Guidelines to the facts, we agree that Olejiya was a manager or
supervisor. By recruiting others to the scheme, Olejiya
ensured that he would not perform the risky task of cashing a
fraudulent check but would instead superintend underlings
who performed the task at his behest. His recruitment of
Akinleye and Awa satisfies one of the application note factors
and his supervision of Awa’s check-cashing demonstrates the
existence of others, including decision-making authority and
control exercised over others. See U.S.S.G. § 3B1.1 cmt. n.4.
This case is more similar to those in which we have found the
requisite hierarchical relationship, see, e.g., Brodie, 524 F.3d at
270–71; United States v. Wilson, 240 F.3d 39, 46–47 (D.C. Cir.
2001); Kelley, 36 F.3d at 1129, than it is to those in which the
defendant was “simply a barnacle clinging to the outer hull of
middle management,” Graham, 162 F.3d at 1184.
B. Akinadewo
Akinadewo also argues that the district court erred in
applying the “organizer or leader” enhancement because he did
not exercise control over other conspirators. Akinadewo’s
argument is considerably weaker than Olejiya’s. Akinadewo
stipulated that he had access to the scheme’s checkbooks and
provided checks to co-conspirators to either cash or deposit,
making him the sort of high-level participant that relies on
runners to take the risks. Akinadewo also made several initial
deposits to fund the fraudulent accounts and numerous calls
were made from his cell phone to the banks used in the scheme,
10
from which the district court inferred that he was keeping tabs
on the various accounts. Although Akinadewo contends that
he was merely the account manager, there is ample evidence
that he controlled other participants. At Akinadewo’s
sentencing hearing Agent Brooks testified that, according to
Awa, Akinadewo supervised one of Awa’s trips to cash a
fraudulent check by following in another car; after Olejiya had
collected the money from Awa, Olejiya gave it to Akinadewo.
Agent Brooks also testified that on one occasion—the one
disputed in the plea colloquy—Akinadewo wrote a check to
Akinleye for him to cash; Akinleye did so and returned the
money to Akinadewo in exchange for a portion of the
proceeds. The district court credited Agent Brooks’
testimony and found that there was “compelling evidence” that
Akinadewo was an organizer or leader. At bottom,
Akinadewo asks us to draw an inference from this evidence
other than the inference reasonably drawn by the district court
but, even if Akinadewo’s preferred inference (that he merely
managed the accounts) were plausible, we would nonetheless
defer to the district court’s reasonable application of the
Guidelines. See Yeh, 278 F.3d at 15.
III. Loss Amount
The Guidelines provide that, for certain crimes, the
offense level is to be increased based on the amount of “loss”
involved in the offense, which is defined as “the greater of
actual loss or intended loss.” U.S.S.G. § 2B1.1(b)(1) & cmt.
n.3. The loss amount is one part of the defendant’s relevant
conduct that—in the case of jointly undertaken criminal
activity—includes “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity.” Id. § 1B1.3(a)(1)(B). Because “the scope
of the criminal activity jointly undertaken by the defendant . . .
is not necessarily the same as the scope of the entire
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conspiracy,” id. cmt. n.2, “the Guidelines expressly require
sentencing courts to determine the scope of each defendant’s
conspiratorial agreement.” United States v. Mellen, 393 F.3d
175, 183 (D.C. Cir. 2004); see United States v. Childress, 58
F.3d 693, 722–24 (D.C. Cir. 1995). “[W]e have not hesitated
to remand for resentencing when the district court has failed to
make these individualized findings.” United States v.
Graham, 83 F.3d 1466, 1479 (D.C. Cir. 1996) (collecting
cases).
The district court increased both Olejiya’s and
Akinadewo’s offense levels by twelve points to reflect the
amount of intended loss involved in the entire
conspiracy—$363,939.76. They now contend that the district
court failed to comply with the “strict procedural mandate,”
Childress, 58 F.3d at 722, to support the increase by making
particularized factual findings regarding the scope of their
conspiratorial agreement.
A. Olejiya
The Government contends that Olejiya waived any
challenge to the loss amount by affirmatively conceding below
that he was responsible for the full amount of the intended loss
involved in the conspiracy. Olejiya contends that he, at most,
forfeited the issue. “Whereas forfeiture is the failure to make
the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right.” United
States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks
omitted). “Forfeiture occurs when silence on the part of the
appealing party has prevented examination by the trial court
and our review is for plain error.” United States v. Laslie, 716
F.3d 612, 614 (D.C. Cir. 2013) (citations and quotation marks
omitted). “By contrast, waiver is intentional, and
extinguishes an error so that there is no review, because the
12
defendant has knowingly and personally given up the waived
right.” Id. (quotation marks omitted). We believe that
Olejiya’s repeated and emphatic concessions, made in written
submissions and at sentencing, constitute a knowing and
intentional waiver.
As noted, the PSR calculated Olejiya’s offense level as 21,
which included a 12-level increase to reflect the full amount of
intended loss involved in the conspiracy. In his supplemental
sentencing memorandum, Olejiya conceded that the PSR’s
Guidelines calculation was correct as to the applicable loss
amount. See Appendix for Appellants (App.) 113 (“The PSR
[] quite correctly . . . adds 12 levels . . . .”). He argued,
however, that the Guidelines “unfairly dictate consideration of
intended loss amounts.” Id. At Olejiya’s sentencing hearing,
the prosecutor noted his uncertainty whether Olejiya was
disputing the Guidelines calculation or simply asking for a
downward variance from the applicable range. See 10/11/12
Sent. Tr. 9–10. 3 After the district court inquired, defense
counsel repeated his concession that “the probation office
correctly calculated the guidelines and that under the
guidelines they can and perhaps should take into account the
intended loss.” Id. at 10. Although defense counsel pressed
the argument that “the way the guidelines work in these fraud
cases . . . [is] not fair,” he repeated that Olejiya was “not
disputing that under the guidelines, the court can add 12
points.” Id. at 12; see also id. at 78 (“Can you legally accept
that? Of course you can. I have admitted that from Day One.
. . . I can’t appeal it.”). As a result of these concessions, the
3
See generally Gall v. United States, 552 U.S. 38, 51 (2007)
(noting difference between “procedural error” of court’s failure to
calculate Guidelines range properly and sentence’s “substantive
reasonableness”).
13
district court treated the loss amount as undisputed. Id. at 56,
96.
We recently held that a defendant who conceded the
propriety of a sentencing enhancement in a plea agreement and
at sentencing waived any challenge to the enhancement
because he
did not merely fail to object to the enhancement; his
decision not to challenge the enhancement was
deliberate. Starting with his plea agreement and
continuing through filings and arguments at his
sentencing hearing, [he] affirmed that the district
court should use the enhancement in calculating his
Guidelines range. His focus was elsewhere, on
persuading the court to sentence him outside of the
Guidelines.
Laslie, 716 F.3d at 614; see also United States v. Jackson, 346
F.3d 22, 24 (2d Cir. 2003) (finding waiver where defendant
conceded applicability of enhancement in letter to sentencing
court and at sentencing hearing). So too here. Although,
unlike Laslie, Olejiya did not plead guilty pursuant to a plea
agreement, he nonetheless conceded that the PSR correctly
calculated his Guidelines range. He instead focused his
efforts on persuading the court to sentence him below that
range.
Whether or not there was a strategic purpose for Olejiya’s
concession is irrelevant so long as it was indeed a knowing and
intentional decision and not a mere oversight: “Even if we
could determine counsel’s reasons for the concession, the
District Court was entitled to rely” on it. United States v.
Moore, 703 F.3d 562, 572 (D.C. Cir. 2012). Moore held that a
defendant who objects to the PSR’s Guidelines calculation but
14
subsequently withdraws the objection has waived the
opportunity to raise it on appeal. Id. at 571–72; accord United
States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014); United
States v. Bowers, 743 F.3d 1182, 1184–85 (8th Cir. 2014);
United States v. Venturella, 585 F.3d 1013, 1018–19 (7th Cir.
2009). The initial objection is significant because it
demonstrates that the defendant did not simply overlook the
issue. See United States v. Zubia-Torres, 550 F.3d 1202,
1204–07 (10th Cir. 2008) (discussing distinction between
waiver and forfeiture in similar case); cf. Olano, 507 U.S. at
733. Although Olejiya did not withdraw an initial objection,
we nevertheless think it plain that he was aware of the relevant
conduct issue and simply chose not to contest it. The
Government’s sentencing memorandum—under a bold-faced
heading labeled “Enhancement . . . for Loss Amount”—cited
Childress for the proposition that only conduct reasonably
foreseeable to the defendant can be attributed to him at
sentencing. App. 86–87. And at the sentencing hearing, the
district court made a point of clarifying that Olejiya’s
acceptance of the loss amount calculation in his sentencing
memorandum was indeed a knowing concession that no
procedural error had occurred. See 10/11/12 Sent. Tr. 9–10.
Just as “[t]his court does not allow parties to reopen issues
waived by stipulation at trial . . . , we will not review a belated
challenge on an issue a party agreed not to dispute in
sentencing proceedings below.” Laslie, 716 F.3d at 615
(citing United States v. Harrison, 204 F.3d 236, 240 (D.C. Cir.
2000)); cf. United States v. Warren, 42 F.3d 647, 658 (D.C.
Cir. 1994) (defendant waived argument that crack cocaine
found in cigarette package should not have been considered in
calculating Guidelines offense level after conceding opposite
below). Olejiya waived any argument that the district court
committed procedural error.
15
B. Akinadewo
As noted, Akinadewo did not raise the loss attribution
issue below. The Government contends that he waived his
challenge to the loss amount by conceding that the Guidelines
were correctly calculated. We assume without deciding that
Akinadewo merely forfeited the issue because we conclude
that he cannot establish plain error. See Tann, 532 F.3d at
872.
On plain-error review, the defendant bears the burden of
demonstrating that any error was prejudicial. Olano, 507 U.S.
at 734. In the sentencing context, that burden is “slightly less
exacting than it is in the context of trial errors.” United States
v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994). Nonetheless, the
defendant must “offer some reason to suspect that the District
Court’s error likely resulted in an incorrect sentence.” United
States v. Williams, 358 F.3d 956, 966 (D.C. Cir. 2004).
Akinadewo has not done so.
The Government’s “Flow of Funds” chart, as Akinadewo
concedes, explicitly links him to $126,200 in stolen funds—a
$109,200 wire transfer from A.S.’s legitimate Armed Forces
Bank account to two fraudulent E*Trade accounts and a
$17,000 check drawn on another legitimate account and
deposited in the fraudulent Charles Schwab account. 4
Although that amount is less than the $200,000 necessary for
the 12-level enhancement, Akinadewo has given us no reason
to believe the district court would likely reach a different
sentence. As discussed, Akinadewo played a supervisory role
4
Akinadewo deposited a $20,000 check and attempted to
deposit another $30,000 check, both drawn on the fraudulent
E*Trade accounts. He also purchased $6,000 in money orders
using a debit card associated with the E*Trade accounts.
16
in the scheme and had access to the checkbooks for the
fraudulent accounts. From the numerous calls made from
Akinadewo’s cell phone (or his sister’s) to all of the banks
involved in the scheme, the district court inferred that
Akinadewo was checking the balances on the accounts. It was
therefore “reasonably foreseeable” to Akinadewo that more
than $200,000 in fraudulent funds was in fact held in those
accounts and thus involved in the conspiracy. U.S.S.G.
§ 1B1.3(a)(1)(B); see United States v. Wilson, 605 F.3d 985,
1036–37 (D.C. Cir. 2010) (relying in part upon defendant’s
“regular and constant communications with Mr. Franklin about
the quantity of PCP on the street” to establish conspiracy’s
entire amount was foreseeable by, and therefore attributable to,
defendant). Because the balance in the fraudulent accounts
formed the basis for the district court’s loss calculation, we
have no reason to think that the district court would attribute a
lower amount to Akinadewo on remand. See Childress, 58
F.3d at 724 (no plain error where it is not “reasonably likely
that the district court would have assigned [defendant] a
different and lower base offense level if it had made the
requisite findings”).
For the foregoing reasons, we affirm the judgments of the
district court.
So ordered.