U.S. v. Youla

• Decision Date: 13 September 2000
• Docket Number: No. 99-5151,99-5151
• Citation: 241 F.3d 296
• Parties: (3rd Cir. 2001) UNITED STATES OF AMERICA, V. MOHAMED YOULA, A/K/A MOHAMED FOFANA MOHAMED YOULA, APPELLANT Submitted Under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

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241 F.3d 296 (3rd Cir. 2001) UNITED STATES OF AMERICA,
V.
MOHAMED YOULA, A/K/A MOHAMED FOFANA MOHAMED YOULA, APPELLANT No. 99-5151 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Submitted Under Third Circuit LAR 34.1(a) September 13, 2000
Filed February 23, 2001

On Appeal From the United States District Court For the District of Delaware District Judge: Honorable Murray M. Schwartz

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Attorney for Appellant Mohamed Youla: Randall D. Unger Suite 2702 125 Queens Boulevard Kew Gardens, NY 11415

Appellant Pro Se: Mohamed Youla Reg. No. 44304-054 Lsci Allenwood P.O. Box 1000 White Deer, PA 17887

Attorney for Appellee United States of America: Edmond Falgowski Office of the United States Attorney 1201 Market Street P.O. Box 2046, Suite 1100 Wilmington, DE 19899-2046

Before: Becker, Chief Judge, Nygaard and Ambro, Circuit Judges

OPINION OF THE COURT

Ambro, Circuit Judge.

I.

Appellant-defendant Mohamed Youla ("Youla") pled guilty to count three of a four-count indictment, charging him with falsely representing a Social Security number to be his own for the purpose of defrauding MBNA America Bank, National Association ("MBNA"), in violation of 42 U.S.C. § 408(a)(7)(B), and 18 U.S.C. § 2. Youla was sentenced to thirty-three months imprisonment, a $6000 fine, a $100 assessment, and a three year term of supervised release. He argues on appeal

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that the District Court for the District of Delaware erred in accepting his plea, in its calculation of the intended loss as $400,000, and in its four-level sentencing increase for his leadership role in criminal activity that involved five or more participants. Youla's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), asserting that Youla's appeal raises no nonfrivolous issues. After reviewing counsel's Anders brief, we are not persuaded. Finding arguable merit to the appeal, we shall discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing in accordance with this opinion.

II.

In February 1998, Youla and Sidiky Mara ("Mara") met with an FBI cooperating witness, known to them as Moe, to buy credit cards in a financial fraud scheme. Moe purported to have a cousin who worked for MBNA, a national banking association, and who could secure credit cards without going through the proper application procedures. In exchange for twenty credit cards, each with a credit limit of $50,000, Youla and Mara were to pay Moe $20,000. During meetings with Moe, Youla introduced Jibril Koita and Eric Washington into the scheme to defraud MBNA.

While small withdrawals on the cards could be made at an automated teller machine ("ATM"), in order to obtain larger cash advances the recipients would need appropriate identification, including Social Security numbers and addresses. Youla and Mara provided Moe with twenty names and Social Security numbers, several of the names and eight of the numbers being false. With this information, MBNA investigators and the FBI opened twenty credit card accounts with a $50,000 credit limit for each.

On February 26, 1998, Youla and Mara drove from New York City to Wilmington, Delaware according to plan. Youla, Mara, and Moe met with an undercover FBI agent posing as Moe's cousin, who showed them twenty credit cards. Youla and Mara tested one of the cards by withdrawing $500 from a nearby ATM. Satisfied that the cards were activated, the two were to return to Wilmington the next day with $20,000 for the credit cards.

After the FBI agent left, Mara confided in Moe that he had secretly kept the cardboard flyer attached to the credit card, which displayed the card number. Mara and Youla subsequently left Moe, and Moe then reported the theft to MBNA whereupon the card was immediately deactivated. Meanwhile, Youla and Mara attempted to use the card, only to learn that it had been deactivated. Suspecting that Moe was involved with law enforcement, Youla and Mara did not return to Wilmington the next day. Over the next eleven days, MBNA received numerous phone calls from individuals who gave names from the list Youla and Mara provided Moe, all claiming that their cards were lost or stolen. MBNA determined that most of the calls were fraudulent, but did send out three replacement cards. One replacement card was sent to Eric Washington, but this card was never activated after MBNA determined that the account was fraudulent. The other two replacement cards went to a Sidiky Mala,¹ and were subsequently deactivated after MBNA investigated a $1.00 purchase recorded at a gas station. In sum, a total of $501 was withdrawn or spent on the credit accounts.

On October 13, 1998, a grand jury for the District of Delaware handed down a four count indictment charging Youla with bank fraud in violation of 18 U.S.C. § 1344 (Count One), conspiracy to commit bank fraud in violation of 18 U.S.C. § 371 (Count Two), and use of a false Social Security number in violation of 42 U.S.C. § 408 (Counts Three and Four).

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On November 25, 1998, Youla appeared with counsel in the District Court for the purpose of entering a guilty plea to Count Two of the indictment - conspiracy to commit bank fraud. The District Court refused to accept the plea because during a colloquy Youla denied an intent to defraud MBNA.

On December 4, 1998, Youla again appeared with counsel in District Court for the purpose of entering a guilty plea. Pursuant to a plea agreement, Youla entered a guilty plea to Count Three of the indictment charging fraudulent use of a Social Security number to open a credit card account. The District Court entered into a lengthy colloquy with Youla to ensure that he understood the charge to which he was pleading guilty, and to ensure that the plea was being entered voluntarily.

Satisfied that Youla understood his Constitutional rights and that his decision to plead guilty was knowing and voluntary, the District Court accepted the plea, and sentenced Youla on February 26, 1999 to a term of thirty-three months imprisonment, a $6000 fine, a $100 assessment, and a three year term of supervised release. In arriving at this sentence, the District Court set the base offense level at six in accordance with § 2F1.1(a) of the U.S. Sentencing Guidelines Manual ("Sentencing Guidelines"). To that, the District Court added nine levels for the highest possible intended loss amount of $400,000 in accordance with § 2F1.1(b)(1)(J) of the Sentencing Guidelines, which represents the number of false Social Security numbers given to secure eight credit cards, each with a credit limit of $50,000. In addition, the District Court added two levels for more than minimal planning in accordance with § 2F1.1(b)(2)(A) of the Sentencing Guidelines and four levels for being an organizer and leader of criminal activity that involved five or more participants under § 3B1.1 of the Sentencing Guidelines. Finally, the District Court subtracted three levels for acceptance of responsibility under § 3E1.1(a) and (b) of the Sentencing Guidelines, and calculated the total adjusted offense level as eighteen.

III.

A case such as this presents counsel with the competing interests of zealous advocacy for one's client, and...