United States v. Nkome

• Decision Date: 17 February 2021
• Docket Number: No. 18-3261,18-3261
• Citation: 987 F.3d 1262
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Gladys NKOME, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

987 F.3d 1262

UNITED STATES of America, Plaintiff - Appellee,

v.Gladys NKOME, Defendant - Appellant.

No. 18-3261

United States Court of Appeals, Tenth Circuit.

FILED February 17, 2021

Kayla Gassmann, Appellate Attorney (Melody Brannon, Federal Public Defender, David M. Magariel, Assistant Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Kansas City, Kansas, for Defendant-Appellant.

Jared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United States Attorney, and James A. Brown, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, District of Kansas, Topeka, Kansas, for Plaintiff-Appellee.

Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.

HOLMES, Circuit Judge.

Defendant-Appellant Gladys Nkome challenges the district court's denial of a mitigating-role adjustment under United States Sentencing Guideline ("Guidelines" or "U.S.S.G.") § 3B1.2. After careful consideration of Ms. Nkome's arguments, we conclude that the district court did not err. Therefore, exercising jurisdiction under 28 U.S.C. § 1291, we affirm .

I

A

Prior to her arrest in May 2017, Ms. Nkome participated in an international "advance-fee" conspiracy managed by individuals located in the Republic of Cameroon. R., Vol. III, at 94, 124 (Amended Presentence Investigation Report, filed Feb. 19, 2019). The Cameroon-based organizers created websites that purportedly sold legal and illegal goods. They convinced prospective online buyers to wire purchase money to fictitious U.S.-based sellers. A U.S.-based individual posing as a seller—a so-called "money mule"—would retrieve the wired money, take a percentage, and send the remainder overseas to the conspiracy's organizers. Id. at 94. The buyers would never receive the items that they sought to purchase.

For approximately thirteen months, Ms. Nkome used at least thirty-five (35) fraudulent identities to collect $357,078.74 in wire transfers connected to the conspiracy. Id. at 124. Ms. Nkome's co-defendant, Roderich Nkarakwi,¹ also engaged in money-mule activities in furtherance of the conspiracy, but his conspiratorial conduct extended beyond that role. Mr. Nkarakwi communicated with conspirators in Cameroon and directly facilitated Ms. Nkome's money-mule activity by, among other things, helping her to obtain her false identities. After each transaction, Ms. Nkome transferred seventy to eighty percent of her proceeds to the conspiracy's organizers outside the U.S. Between 2014 and 2017, Mr. Nkarakwi also regularly participated in this conspiracy. He collected at least $481,578.01 and used no fewer than ninety-five (95) different false identities. Mr. Nkarakwi also retained twenty to thirty percent of the gross proceeds from his money-mule activities and remitted the rest (i.e., seventy to eighty percent) overseas to conspirators.

B

In May 2017, a federal grand jury sitting in the U.S. District Court for the District of Kansas returned a six-count indictment against Ms. Nkome and Mr. Nkarakwi, charging them with conspiracy to commit wire fraud under 18 U.S.C. § 1349 (count I) and several substantive wire-fraud offenses in violation of 18 U.S.C. § 1343 (counts II through VI).

Ms. Nkome pleaded guilty in April 2018 to the indictment's conspiracy count without a written plea agreement. The U.S. Probation Office prepared a Presentence Investigation Report ("PSR")² that set Ms. Nkome's base offense level at seven, pursuant to U.S.S.G. § 2B1.1(a)(1). The PSR purported to take into account solely Ms. Nkome's own activities involving her "use of false identities to pick up wire transfer monies" (as opposed to basing the amount on the loss caused by the overall conspiracy) in calculating the loss amount attributable to her. R., Vol. III, at 124. It elevated her adjusted offense level by twelve, pursuant to U.S.S.G. § 2B1.1(b)(1)(G), based on a loss amount of between $250,000 and $550,000. After making additional offense-level adjustments, not relevant here, the PSR set her total adjustment offense level at twenty. With a criminal history category of I, the PSR set Ms. Nkome's advisory Guidelines sentencing range at thirty-three to forty-one months’ imprisonment.

Ms. Nkome objected to certain aspects of the PSR and subsequently filed a sentencing memorandum to support her position. As relevant here, Ms. Nkome contended that the Probation Office should have recommended her for a mitigating-role adjustment pursuant to U.S.S.G. § 3B1.2³ and argued that the loss amount that the office attributed to her was unreasonable. More specifically, as to the mitigating-role adjustment, Ms. Nkome contended she should have received the adjustment because she was merely "a ‘money mule’ and her role was limited to picking up money at certain locations and sending the majority of the funds on to others." R., Vol. III, at 169. Ms. Nkome perceived the various participants in the conspiracy as falling into tiers of culpability—with the "Leader organizer" at the top and the "Money mule" at the bottom. Id. at 169–70. And, when her limited role was considered in a totality-of-the-circumstances analysis, Ms. Nkome reasoned that the PSR should have recommended her for a mitigating-role adjustment. See id. at 169–70. The Probation Office, however, disagreed. It reasoned that, "though comparisons of Ms. Nkome to people who performed other roles [in the conspiracy] may be helpful in distinguishing duties, the comparisons do not demonstrate that [Ms. Nkome] was substantially less culpable than the average participant ," which is a necessary showing for a mitigating-role adjustment. Id. at 172. The Probation Office found that, in terms of culpability, Ms. Nkome was "an average participant." Id.

C

The district court conducted a sentencing hearing. There, the court heard testimony from the law-enforcement case agent concerning the nature of the fraudulent conspiracy and Ms. Nkome's role in it, and then heard arguments from the parties. Partway through the hearing the parties reached an agreement concerning the loss amount, stipulating that the loss was "more than [$]95,000 but less than [$]150,000." R., Vol. II, at 89. However, Ms. Nkome maintained her objection regarding the mitigating-role adjustment.

Based on its consideration of the testimonial evidence, the PSR's findings, and the parties’ arguments, the district court determined Ms. Nkome did not qualify for a U.S.S.G. § 3B1.2 reduction. Id . at 126–30. It reached this decision in part by applying five non-exhaustive factors set out in Note 3(C) of the Guidelines commentary. Briefly stated, these factors inquire into the extent to which the defendant: (1) understood the scope and structure of the criminal activity; (2) planned or organized the criminal activity; (3) exercised decision-making authority regarding the activity; (4) participated in the criminal activity and possessed discretion and responsibility concerning it; and (5) stood to benefit from the criminal activity. See U.S.S.G. § 3B1.2, cmt. n.3(C).

The district court reasoned that, under the view of the record "most favorable" to Ms. Nkome, the first factor would be no more than "neutral," but the court ultimately found that "the evidence [made] it more likely than not that [Ms. Nkome] understood how [the] conspiracy worked and ... [her role] in it." R., Vol. II, at 126–27. In this regard, the court noted "particularly given [Ms. Nkome's] long run participation in [the conspiracy], her connection to her co-defendant [i.e., Mr. Nkarakwi] who played more positions in the conspiracy than she did, I think it is more likely on balance than not that she understood well how this conspiracy worked." Id. at 127. Next, the court found that factors two and three supported Ms. Nkome's position because the evidence did not establish that she either planned the activity or exercised authority over those who did. Id . at 127–28 (observing that, based on the parties’ arguments, it is "not persuasive to believe that she played a significant organizing or planning role or that she exercised authority or influenced those who did").

As for the fourth factor, the court found that "this is the factor on which [Ms. Nkome] does the worst" because "[s]he was a meaningful[,] repeating[,] persistent participator." Id. at 128. The court clarified that it was "not particularly persuaded by arguments that say [Ms. Nkome] played an integral role because most of these transactions or conspiracies need everyone in every role. So the fact that the money wouldn't have gotten claimed without her is not particularly meaningful[.]" Id. However, the court said that upon "look[ing] at the nature and extent of [Ms. Nkome's] participation in this activity spread over a substantial period of time going in ... to claim money by herself, it seems ... that she does have a significant role in [the conspiracy] whether it is integral or not." Id.

Finally, the court found that the fifth, and last factor, did "not favor [Ms. Nkome]." Id. at 129. More specifically, concerning the extent to which Ms. Nkome stood to benefit from the criminal activity, the court reasoned as follows:

Like many things that happen in conspiracies and criminal activity generally, the exact amount of loss that Ms. Nkome imposed upon members of the public is not clear. The parties agree that it's somewhere between 95- and 150,000 dollars, and also appear to agree she profited in the range of 20 to 30 percent of that gross theft or gross loss. At the 20 percent at the low end of that, her takeaway was $19,000. At the 30 percent on the high end her takeaway was $45,000. That's a significant benefit and it is a benefit that is -- that is a piece of the action. The more of it she did, the better she did. And so this factor in my judgment, based on the evidence pertaining to it given the long running and persistent nature of it and the degree of the benefit that we know she derived, does not favor [Ms. Nkome].

Id. at 128–29...