United States v. Addo Obeng

661 F. App'x 155
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 1, 2016
Docket14-3195
StatusUnpublished

This text of 661 F. App'x 155 (United States v. Addo Obeng) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Addo Obeng, 661 F. App'x 155 (3d Cir. 2016).

Opinion

OPINION *

McKEE, Chief Judge.

Addo Obeng appeals the district court’s imposition of three, two-level sentencing enhancements applied to his conviction for conspiring to transport stolen motor vehicles overseas. For the following reasons, *157 we will affirm the judgment of the district court.

I

In October 2013, Addo Obeng, a native of Ghana and legal permanent resident of the United States, pleaded guilty to conspiring to transport stolen motor vehicles overseas, in violation of 18 U.S.C. § 2312 and 18 U.S.C. § 371. Obeng was one of six individuals who were charged with trafficking carjacked and otherwise stolen vehicles to West Africa. Obeng acted as an exporter of stolen vehicles from Port Newark/Elizabeth to customers in Africa, purchasing the vehicles from large scale “fences.” The trafficking ring was a multi-tiered operation that employed street level carjackers/thieves, fences, “runners” (who drove the cars to secure locations during a “cooling off’ period), “retaggers” (who changed VINs and obtained counterfeit titles), and exporters like Obeng (who obtained fraudulent documentation and facilitated the shipping process).

In the plea agreement, the parties agreed that Obeng’s total offense level was 15, and that the parties would not argue for any upward or downward departure, adjustment or variance not set forth in the plea agreement. However, Obeng’s presen-tence report concluded that four additional two-level sentencing enhancements were appropriate because the offense (1) involved 10 or more victims, 1 (2) involved being in the business of receiving and selling stolen property, 2 (3) employed sophisticated means, 3 and (4) involved the conscious or reckless risk of death or serious bodily injury and possession of a dangerous weapon. 4 The presentence report recommended a total offense level of 23.

At Obeng’s sentencing hearing, the district court decided to exercise its “independent obligation” to determine Obeng’s offense level, as opposed to merely accepting either the recommendations in the plea agreement or the presentence report. App. 22-23 The district court rejected the pre-sentence report’s recommended enhancement of two points for the risk of death or serious bodily injury and ultimately arrived at an offense level of 21. This correlated with a recommended sentencing range of 41 to 51 months’ imprisonment. Obeng was sentenced to 48 months imprisonment, three years supervised release, and he was ordered to pay $102,403.86 in restitution. Obeng appeals.

II. 5

Obeng challenges the applicability of the various sentencing adjustments used to calculate his ultimate Guidelines range. We exercise plenary review over the district court’s interpretation of the Guidelines, 6 but we review for clear error the factual findings used by the District Court to support the application of a sentencing adjustment. 7

III.

Obeng first challenges the district court’s adoption of the presentence report’s conclusion that there were ten or more victims of Obeng’s crimes. Pursuant *158 to U.S.S.G. § 2Bl.l(b)(2)(A)(i), if a defendant’s offense involves ten or more victims, the defendant’s offense level is raised by-two points. The Application Notes ' to § 2B1.1 define “victim” as “any person who sustained any part of the actual loss” or “any individual who sustained bodily injury as a result of the offense.” 8

Here, the presentence report documented at least ten stolen vehicles that it could directly link to Obeng’s activities. 9 Obeng did not object to the facts presented by the presentence report. We have long held that “[a] conclusion in the presentence investigation report which goes unchallenged by the defendant is, of course, a proper basis for sentence determination." 10 We are unpersuaded by Obeng’s argument that the district court ought to have only considered conduct that he admitted to in the plea agreement. The Sentencing Guidelines themselves state that courts are not bound by the stipulations in plea agreements but may instead rely in part on the presentence report to “determine the facts relevant to sentencing.” 11 The district court therefore did not clearly err in applying the two-level sentencing enhancement under U.S.S.G. § 2Bl.l(b)(2)(A)(i).

Next, Obeng appeals the district court’s imposition of a two-level enhancement for being in the business of receiving and selling stolen property under U.S.S.G. § 2Bl.l(b)(4) because he claims that his involvement was limited to the receipt and transport of only two stolen vehicles. 12 When determining whether a defendant was in the business of selling and receiving stolen property, courts consider, among other things, (A) the regularity and sophistication of the defendant’s activities; (B) the value and size of the inventory of stolen property maintained by the defendant; (C) the extent to which the defendant’s activities encouraged or facilitated other crimes; and (D) the defendant’s past activities involving stolen property. 13

In United States v. Fofanah, 14 another stolen vehicle trafficking case, the Court imposed a two-level sentencing enhancement under § 2Bl.l(b)(4). The court held that Fofanah was in the business of receiving and selling stolen property due to the number of vehicles involved (17) as well as other indications that Fofanah was a “repeat player” in the stolen vehicle business. 15 Here, Obeng has been directly linked to no less than 10 stolen vehicles. Obeng’s presentence report also sets forth uncontested facts as well as accounts from a confidential source indicating that Obeng had been in the business of receiving and *159 selling stolen cars. 16 The presentence report indicates a high level of sophistication and coordination among multiple parties, including Obeng, Moreover, the vehicles stolen included luxury vehicles with relatively high values, and undisputed facts in the presentence report indicate that Obeng not only received them but also sold them overseas. 17

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Cite This Page — Counsel Stack

Bluebook (online)
661 F. App'x 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-addo-obeng-ca3-2016.