U.S. v. Abiodun

• Citation: 536 F.3d 162
• Decision Date: 30 July 2008
• Docket Number: Docket No. 06-5335-cr.
• Parties: UNITED STATES of America, Appellee, v. Emmanuel ABIODUN, also known as Eleduma Sunday Awolabi and Atairu Akuetiemehe, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

536 F.3d 162

UNITED STATES of America, Appellee, v. Emmanuel ABIODUN, also known as Eleduma Sunday Awolabi and Atairu Akuetiemehe, Defendants-Appellants.

Docket No. 06-5335-cr.

United States Court of Appeals, Second Circuit.

Argued: May 20, 2008.

Decided: July 30, 2008.

Andrew H. Freifeld, New York, NY, for defendant-appellant Emmanuel Abiodun.

Brian I. Kaplan, New York, NY, for defendant-appellant Atairu Akuetiemehe.

Marcus Asner, Assistant United States Attorney (Michael J. Garcia, United States Attorney, on the brief, Katherine Polk Failla and Jessica A. Masella, Assistant United States Attorneys, of counsel), United States Attorney's Office for the Southern District of New York, NY.

Before: CARDAMONE, CABRANES, and KATZMANN, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Defendants-appellants Emmanuel Abiodun and Atairu Akuetiemehe appeal from judgments of conviction and the resulting sentences imposed upon them by the United States District Court for the Southern District of New York (Denny Chin, Judge) after they pleaded guilty to fraud in connection with identification documents, see 18 U.S.C. § 1028; fraud in connection with possession of a credit access device, see 18 U.S.C. § 1029; and conspiracy to commit fraud and wire fraud, see 18 U.S.C. § 371. Akuetiemehe was sentenced on October 30, 2006 principally to a term of 87 months' incarceration. Abiodun was sentenced on December 11, 2006 principally to a term of 96 months' incarceration.

Akuetiemehe challenges the District Court's determination that the loss amount attributable to his criminal activity was $1.2 to 1.6 million. Abiodun challenges the District Court's determinations that (1) his criminal activity involved more than 250 victims; (2) a two-level enhancement to his offense level—as calculated under the United States Sentencing Guidelines—was appropriate based on his role in the offense; and (3) the overlap of the Guidelines enhancements triggered by his offenses of conviction warranted a downward departure of only six levels. Abiodun also claims that the District Court failed to include, in the written order of judgment and conviction, a statement of the reasons for its imposition of an above-Guidelines sentence.

We affirm the District Court's application of a two-level upward adjustment based on Abiodun's role in the offense and the District Court's decision to grant a six-level downward departure based on the overlap of the Guidelines enhancements triggered by Abiodun's offenses of conviction. We conclude, however, that the District Court incorrectly calculated the number of victims affected by defendants' conduct, an error which also affected the calculation of the loss attributable to the defendants. Accordingly, we vacate the sentences of both Akuetiemehe and Abiodun, and we remand the matter for further proceedings consistent with this opinion.

I. Background

"Defendants were part of a loosely connected group of some thirty individuals who, over the course of five or six years, engaged in a scheme to commit credit card and access device fraud through the use of stolen credit information." United States v. Abiodun, 442 F.Supp.2d 88, 90 (S.D.N.Y. 2006). One of the organizers of the scheme, Linus Baptiste, estimated that the members of the conspiracy "illegally downloaded more than 20,000 credit reports." Id. at 95. "Typically, four out of ten credit reports would be `useful,' and a `useful' credit report would yield approximately two usable credit cards or credit lines. A typical usable credit card would have an average of $5,000 in available credit." Id. at 93. "Put another way," the members of the conspiracy obtained an average of "approximately $4,000 per credit report." Id. at 96.

Defendant Akuetiemehe was involved in the scheme from 2002 to 2004, purchasing "a total of some 300 to 400 reports" from Baptiste. Id. at 94. In addition, "[a]t some point Akuetiemehe ... was obtaining credit reports from a source other than Baptiste and selling them to others." Id. When he was apprehended in December 2004, he had "more than 200 credit reports as well as other financial and bank documents, including documents bearing the name and photograph of a fraud victim ... [and] list[ing] as an address the building in which Akuetiemehe lived at the time." Id. at 94-95.

Defendant Abiodun was involved in the scheme from late 2000 to early 2005. "He purchased approximately 400 to 500 credit reports," making him "one of Baptiste's biggest customers." Id. at 94 (record citations omitted). Abiodun provided another member of the group—Adekunle Olusola— with a credit card and drove Olusola from New York to Lancaster, Pennsylvania, where Olusola attempted to obtain "a cash advance on a credit card in the name of one of the victims of the fraud ... using a false driver's license." Id. "Abiodun also gave Olusola approximately ten credit reports ... [and] promise[d] to help Olusola call the banks" from which Olusola hoped to obtain credit. Id. (record citations omitted). Finally, Abiodun helped a second member of the group—Julius Owolabi—obtain "15 or more fraudulent credit cards, which were then used to get cash advances ... [and] to buy merchandise." Id. (record citations omitted).

Defendants were sentenced under the theft and fraud provisions of the 2005 Sentencing Guidelines, which instruct a sentencing court to increase the offense level based on the amount of loss involved. See U.S.S.G. § 2B1.1 (2005). After defendants pleaded guilty to the charges in the indictment, the District Court held an evidentiary hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir.1978), to resolve the parties' disputes about, inter alia, the amount of loss attributable to each defendant.¹ The Government, in support of its position, presented the District Court with spreadsheets indicating that the total losses arising from the scheme were over $25 million.²

To determine the loss amount attributable to each defendant, the District Court used the spreadsheets submitted by the Government and the testimony offered by cooperating witnesses to "calculat[e] the average loss sustained per credit report." Abiodun, 442 F.Supp.2d at 100. The District Court then multiplied this sum by "the number of reports purchased by each defendant." Id. Using this methodology, the District Court concluded that (1) Akuetiemehe was responsible for losses of $1.2 to 1.6 million based on his purchase of 300 to 400 reports and (2) Abiodun was responsible for losses of $1.6 to 2.0 million based on his purchase of 400 to 500 reports. Id. at 101. In light of these loss calculations, the Court increased the offense levels of both defendants by 16 levels pursuant to U.S.S.G. § 2B1.1(b)(1)(I). Id. at 102.

The District Court sentenced Akuetiemehe to a term of 87 months, the bottom of his Guidelines-recommended range of 87 to 108 months.

Turning to Abiodun, the Court applied a six-level enhancement to the offense level based on the number of victims it found to have been affected by his conduct. Having concluded that lost time could constitute "actual loss" within the meaning of U.S.S.G. § 2B1.1, the District Court found that the victims affected by Abiodun's crimes included individuals who had spent an appreciable amount of time securing reimbursement for their financial losses from their banks or credit card companies. Taking these individuals together with the "dozens" of corporate victims and the "small percentage of individuals who actually did lose money," the District Court determined that it was "more likely than not" that Abiodun's crimes affected "250-plus victims, that is, victims who suffered some ... harm that is monetary or that otherwise is readily measurable in money." App. 798-99.

The District Court also determined that Abiodun's offense level should be adjusted upward by two levels, pursuant to U.S.S.G. § 3B1.1 (c), upon finding that Abiodun "was `an organizer, leader, manager, or supervisor' in criminal activity involving at least two other participants." Abiodun, 442 F.Supp.2d at 101-02. The District Court based this finding on, inter alia, record evidence concerning the role that Abiodun had played in the offenses of Owolabi and Olusola by providing them with credit information, credit access devices, and other types of assistance. Id.

In arriving at Abiodun's Guidelines-recommended sentencing range, the District Court determined that several of the Guideline enhancements triggered by Abiodun's conduct overlapped to some extent.³ The District Court therefore decided to depart downward by six levels, leaving Abiodun with a total offense level of twenty-seven and a resulting Guideline range of 70 to 87 months.

After considering the seriousness of Abiodun's offense, the number of victims affected, and the fact that Abiodun "played a more significant role than virtually all of the other[]" individuals involved in the scheme, the District Court decided to impose a sentence of 96 months' imprisonment. App. 818. This sentence was (1) above Abiodun's post-departure Guidelines-recommended range of 70-87 months' imprisonment but (2) well below the 135 to 168 months' imprisonment that Abiodun would have faced had the District Court not granted him a six-level downward departure.

II. Discussion

"[W]e review a district court's conclusions of law de novo, its application of the Guidelines on issues of fact for clear error, and its exercise of discretion with respect to departures for abuse of that discretion." United States v. Ebbers, 458 F.3d 110, 126 (2d Cir.2006). A sentencing court's findings of facts, such as a finding concerning a defendant's role in criminal activity, "will not be overturned unless clearly erroneous." United States v. Soto, 959 F.2d 1181, 1187 (2d Cir.1992) (citation and internal quotation marks omitted); accord United States v. Gomez, 31 F.3d 28, 31 (2d Cir.1994). "A finding is clearly erroneous when[,] although there is evidence to support...