United States v. Anobah

• Citation: 734 F.3d 733
• Decision Date: 04 November 2013
• Docket Number: No. 12–1276.,12–1276.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Desmond ANOBAH, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

734 F.3d 733

UNITED STATES of America, Plaintiff–Appellee,

v.Desmond ANOBAH, Defendant–Appellant.

No. 12–1276.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 22, 2013.

Decided Nov. 4, 2013.

Helene B. Greenwald, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Kent R. Carlson, Attorney, Carlson & Associates, Chicago, IL, for Defendant–Appellant.

Before RIPPLE and ROVNER, Circuit Judges and BARKER, District Judge. ^*

ROVNER, Circuit Judge.

Desmond Anobah pled guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343. The district court sentenced him to thirty-six months of imprisonment, a term five months below the low end of the calculated guidelines range. He now appeals his sentence, challenging the court's application of guidelines enhancements for abuse of a position of trust and for use of sophisticated means in committing the fraud. We affirm.

I.

Desmond Anobah was a loan officer, licensed by the State of Illinois and employed for more than eight years by American Financial Funding Corporation (“AFFC”). Anobah's duties at AFFC included recruiting loan applicants, interviewing those applicants to gather information, preparing loan application packages, collecting supporting documentation, and obtaining other information in support of the loan applications. Anobah enjoyed success in this position: between late 1997 and 2008, AFFC paid him between $100,000 and $148,000 per year in commissions. Unfortunately, Anobah decided to supplement his income by participating in a complex mortgage fraud scheme with several other people.

From May 2006 through October 2006, Anobah acted as a loan officer for at least two fraudulently obtained mortgages at AFFC. The scheme employed a “strawman” real estate purchaser (Prentice Mason),a real estate developer (Bobby Brown, Jr.) and his employee (Barry Adams), a Chase Bank employee (Tracy Green) and a licensed real estate agent (Leslie Love), among others. Brown and Adams recruited Mason to act as a nominee buyer of a property on Baybrook Court in Addison, Illinois. They then referred Mason to Anobah so that Anobah could prepare a fraudulent loan application on behalf of Mason. The application that Anobah prepared contained numerous material falsehoods. Among other things, the application and supporting documentation (1) falsely stated that Mason intended to occupy the property; (2) overstated Mason's income; (3) falsely represented that Mason was employed by B & M Custom Homes; (4) falsely reported that Mason received rental income; (5) inflated the amount of money Mason had on deposit at Chase Bank; and (6) failed to disclose all of Mason's financial liabilities.

To carry off the ruse, Anobah, Brown, Love, Green and others created supporting documents falsely verifying Mason's employment, obtained a falsified letter from an accountant, generated fraudulent lease agreements and verifications of rental payments, and created a false verification of deposits from Chase Bank. Anobah knew that Mason's Chase account had a lower balance than was represented, and he knew that the rent documents and leases were fraudulent, but nevertheless submitted them to AFFC with the loan application. Anobah also recruited an accountant/tax preparer to draft a materially false letter as part of Mason's loan application. The letter stated that the tax preparer had completed tax returns for Mason for the past three years and that Mason was self-employed in the home building business. As a result of this application, AFFC issued two loans in the amount of $760,000 for the Baybrook Court property, and ultimately suffered a loss of approximately $290,000 on those loans. In the course of this scheme, AFFC wired funds from an account in Alabama to a bank in Chicago, providing the basis for the wire fraud charge. Anobah also played a similar role in other loan applications for two properties in Chicago, at 6513 South Evans and 6608 South Lowe. In those instances, two other lenders lost $289,000 and $220,000 respectively. The loss for all three lenders totaled approximately $799,000.

Anobah was charged with two counts of wire fraud in violation of 18 U.S.C. § 1343, and one count of mail fraud in violation of 18 U.S.C. § 1341. The government also sought forfeiture of Anobah's interest in approximately $760,000 pursuant to 18 U.S.C. § 981(a)(1)(C). Anobah pled guilty to one count of wire fraud, the count involving the Baybrook Court loans from AFFC. At the time he pled guilty, he conceded only that he had participated in the preparation of the accountant's letter; he otherwise denied the government's version of the offense and all of the relevant conduct related to the other counts. R. 58, at 28. Because of those denials, the probation officer who prepared the Pre-sentence Investigation Report (“PSR”) recommended that Anobah not receive any sentence reduction for acceptance of responsibility. On the day of his sentencing hearing, however, Anobah indicated through his attorney that he wished to “accept full responsibility for the relevant conduct,” and for “engaging in the conduct that the Government has described in their position and in their sentencing memorandas [sic].” R. 60, at 89. See also R. 60 at 97–98. Anobah then conceded the total amount of the loss to all of the lenders for all three counts of the indictment. As a result, the court gave him a three-point reduction for acceptance of responsibility when calculating the guidelines sentence. After adding a two-level increase for abusing a position of trust, and a two-level increase for the use of sophisticated means in committing the fraud, the court arrived at a total offense level of twenty-two. Combined with Anobah's criminal history category of I, the guidelines range was forty-one to fifty-one months of imprisonment. The court sentenced Anobah to thirty-six months of imprisonment, five months below the low end of the guidelines range. The court also ordered him to pay restitution in the amount of $290,000, the amount lost by his employer, AFFC. Anobah appeals.

II.

On appeal, Anobah challenges the district court's decision to enhance his sentence for abuse of a position of trust pursuant to U.S.S.G. § 3B1.3, and for use of sophisticated means pursuant to U.S.S.G. § 2B1.1(b)(10)(C). Our review of sentencing decisions is limited to whether they are reasonable, applying the abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Aslan, 644 F.3d 526, 531 (7th Cir.2011). We first must ensure that the district court committed no significant procedural error. Gall, 552 U.S. at 51, 128 S.Ct. 586. Procedural errors include, among other things, incorrectly calculating the guidelines range, or failing to explain adequately the chosen sentence, including an explanation for any deviation from the guidelines range. Gall, 552 U.S. at 51, 128 S.Ct. 586;Aslan, 644 F.3d at 531. We review the district court's interpretation of the sentencing guidelines de novo. Aslan, 644 F.3d at 531;United States v. Veazey, 491 F.3d 700, 706 (7th Cir.2007). We review the district court's findings of fact for clear error. United States v. Knox, 624 F.3d 865, 870 (7th Cir.2010). Sentences that are within the properly calculated guidelines range are entitled to a rebuttable presumption of reasonableness. Rita v. United States, 551 U.S. 338, 341–49, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); Aslan, 644 F.3d at 531–32;Veazey, 491 F.3d at 706;United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005).

A.

The PSR recommended a two-level increase for abuse of a position of trust under U.S.S.G. § 3B1.3. That guideline provides, in relevant part, “If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.” According to the Application Notes:

“Public or private trust” refers to a position of public or private trust characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference). Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature. For this adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e.g., by making the detection of the offense or the defendant's responsibility for the offense more difficult). This adjustment, for example, applies in the case of an embezzlement of a client's funds by an attorney serving as a guardian, a bank executive's fraudulent loan scheme, or the criminal sexual abuse of a patient by a physician under the guise of an examination. This adjustment does not apply in the case of an embezzlement or theft by an ordinary bank teller or hotel clerk because such positionsare not characterized by the above-described factors.

U.S.S.G. § 3B1.3, Application Note 1. A “special skill” includes “a skill not possessed by members of the general public and usually requiring substantial education, training or licensing.” U.S.S.G. § 3B1.3, Application Note 4.

The government posited that Anobah held a position of trust with his employer, AFFC. The government noted that Anobah was a long-term employee of AFFC, endowed with trust by his employer, and not simply an independent contractor as was often the case in loan originator cases. The court found that Anobah held a special license as a loan originator, and that his employer relied on him as a licensed loan originator in determining whether Mason was a suitable loan risk. The court also concluded that Anobah's position of trust with his employer not only facilitated the commission of the offense but also aided in the concealment of it.

Anobah...