U.S. v. Omole, 06-2252.
| Citation | 523 F.3d 691 |
| Decision Date | 15 April 2008 |
| Docket Number | No. 06-3605.,No. 07-1471.,No. 06-2252.,06-2252.,06-3605.,07-1471. |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Davis OMOLE, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Adeniyi Adesokan and Samuel Omole, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Juliet Sorensen (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellant.
Richard H. Parsons, Andrew J. McGowan, Jonathan E. Hawley, Kent V. Anderson (argued), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellee, Davis Omole.
Raymond G. Bendig (argued), Chicago, IL, for Defendant-Appellant, Adeniyi Adesokan.
Paul M. Brayman (argued), Chicago, IL, for Defendant-Appellant, Samuel Omole.
Before FLAUM, KANNE, and ROVNER, Circuit Judges.
Davis Omole, Adeniyi Adesokan, and Samuel Omole pled guilty to various crimes arising from a complex identity-theft scheme that the three individuals carried out over two years. The district court sentenced Davis to 36 months' imprisonment, Adesokan to 78 months' imprisonment, and Samuel to 24 months' imprisonment. In this consolidated appeal, the government appeals Davis's sentence, which was 51 months below the low end of the Sentencing Guidelines range of 87-102 months. Adesokan appeals his sentence, arguing that it was unreasonable in light of Davis's considerably shorter sentence for essentially the same conduct. Samuel appeals his sentence on the ground that the district court incorrectly calculated the amount of loss attributable to him. We affirm the sentences of Adesokan and Samuel Omole. We conclude that Davis Omole's sentence was unreasonable and we vacate his sentence and remand for resentencing.
Davis Omole and Adeniyi Adesokan were the chief architects of a complex identity-theft scheme through which they defrauded approximately 120 individuals between April 2003 and July 2005. Davis and Adesokan used stolen identities to buy cell phones, clothing, and other items and services. They held over 300 auctions on the online auction website eBay, where they listed for sale various items they did not own and did not intend to sell (cell phones, plasma televisions, stereos, electronic keyboards), under approximately 100 different eBay accounts they created with identities they had stolen. The eBay auctions led to $254,000 in intended sales; approximately $90,000 was actually collected by the defendants. Davis and Adesokan continuously closed and opened eBay accounts, activated and deactivated cell phone and e-mail accounts, and changed mailing addresses and post-office boxes, to avoid getting caught.
Davis's younger brother, Samuel, was also involved in the identity-theft scheme. Davis and Samuel worked at stores where cell phones were sold and activated. Davis stole customers' credit-card and personal-identification information. Samuel used the stolen information to activate cell phones, some of which were used in the eBay scheme. Davis and Adesokan organized the eBay auctions and collected the victims' money. All three men used the stolen information to make personal purchases.
After they were arrested and charged, Davis pled guilty to one count of wire fraud, see 18 U.S.C. § 1343, and one count of aggravated identity theft, see id. § 1028(A)(a)(1). Adesokan pled guilty to one count of mail fraud. See id. § 1341. Samuel also pled guilty to one count of mail fraud. See id.
Davis Omole's Presentence Investigation Report (PSR) calculated his total offense level for the wire-fraud count as 25, and his Criminal History Category as II. The probation officer indicated in the PSR that the guidelines range for the wire-fraud count was 63 to 78 months' imprisonment; the government recommended a sentence within that range. Regarding the aggravated identity-theft count, Davis was subject to a mandatory term of 24 months' imprisonment, which could not be served concurrently with another sentence. See id. § 1028A(a)(1), (b)(2); U.S.S.G. § 2B1.6(a). Thus, the total term Davis faced under the guidelines was 87 to 102 months' imprisonment.
During Davis's sentencing hearing, the judge noted that the defendant had perpetrated a substantial and sophisticated fraudulent scheme that involved planning, execution, and avoidance of detection over a long period of time. He had cheated "dozens and dozens" of people out of approximately $90,000, and intended to cheat them out of much more had the scheme been carried out as planned. The judge extensively scolded Davis for the crimes he committed and the arrogance he displayed during court proceedings.
This defendant's record reflects an arrogance and an obvious feeling of superiority over the rest of us. In addition to that, not only the things he has done but the way he has done them reflects a total lack of empathy for his victims. Sending them e-mails ridiculing their stupidity for being cheated by him reflects a lack of feeling for other human beings that is absolutely alarming in a 20-year old.... And he's going to keep [defrauding victims] until and unless he develops some sense of what it takes to live with the rest of us without cheating us, stealing from us, and victimizing us.
After those scathing comments, the judge moderated and explained that because Davis was only 20 years old, and because this fraudulent scheme represented Davis's "first substantial involvement with the law," he was departing downward with respect to the wire-fraud count and imposing a sentence below the minimum guidelines range. He sentenced Davis to a term of 12 months' imprisonment for the wire-fraud conviction—51 months less than the minimum advised by the guidelines. The judge then imposed the mandatory 24-month sentence for Davis's aggravated-identify-theft conviction, to run consecutively. Davis was ordered to pay restitution to the victims.
The judge then chastised Davis further:
The sentence I have imposed upon you is substantially less than [the guidelines range], so you've caught a break that I'm not at all sure you deserve. Your conduct during the course of these proceeding[s] has been nothing but contemptuous of this Court. Your failure to abide by our conditions of release has been nothing but arrogant. Your continued participation in these schemes after having been convicted in State Court and awaiting the resolution of this case has been nothing but arrogant, and I'm going overboard to make an adjustment for your age and the incredible lack of understanding of life that some people at your age seem to reflect.
The judge ended his speech to Davis by encouraging him to do the right thing in the future, and explaining that he would be surrounded by people who do nothing but the wrong thing. The judge said, to conclude,
Adesokan's PSR calculated his offense level as 24 and his Criminal History Category as III. At sentencing, the judge decided that the offense level was correct because it accounted for Adesokan's conduct, the intended loss of the scheme ($254,000)—whether realized or not—and Adesokan's failure to accept responsibility for his crime and conduct. His Criminal History Category of III was also correct, and was based on a previous guilty plea for computer fraud; a probation violation; a previous guilty plea for unlawful possession of a fraudulent drivers' license, and then driving on a suspended or revoked license; and finally, a previous guilty plea for forgery. Adesokan's guidelines range was 63 to 78 months' imprisonment.
Both Adesokan and his mother testified at Adesokan's sentencing hearing. Adesokan argued that he was slowly withdrawing from the scheme. The judge listened to the arguments made by both parties for their respective sentencing recommendations, and explained that he had read and considered the character-reference letters that were submitted on Adesokan's behalf.
The judge did not credit Adesokan's withdrawal argument, and explained that if Adesokan wanted to relinquish his responsibility for the scheme he would have had to stop his participation in it, which he did not do. The judge went on to state that Adesokan had been given plenty of chances to change after his numerous convictions for similar conduct, but he failed to change. The judge sentenced Adesokan to 78 months' imprisonment—the maximum sentence under the guidelines range—and ordered restitution.
Samuel's PSR calculated his total offense level as 19, and his Criminal History Category as I. The guidelines range was 30 to 37 months' imprisonment. The government recommended a sentence within that range.
At his sentencing hearing, Samuel Omole argued that he was not involved in the comprehensive eBay scheme, but rather, was involved in a smaller, individualized scheme in which he alone made fraudulent purchases with stolen information that he got from his brother, Davis. Samuel argued that he never stole any identities while working at cell-phone dealers, and that he did not profit from the eBay scheme. Samuel also argued that, even if he was part of the broader eBay scheme, his involvement did not begin until after October 2004—when he had activated a phone that ultimately was used in the eBay scheme. Consequently, Samuel urged that the total intended loss attributable to him should be less than the amounts attributable to Adesokan and Davis. The government countered that it believed Samuel was involved in the scheme from the fall of 2003 because Adesokan had testified in front of a...
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