United States v. Asemota

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 11, 1996
• Docket: 95-10729
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-10729 (Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSARO DARLINGTON ASEMOTA,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas (3:93-CR-349-G)

October 2, 1996

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Osaro Darlington Asemota was convicted on

pleas of guilty to multiple counts comprising conspiracy to commit

fraudulent use of a social security number, fraudulent use of a

social security number, aiding and abetting mail fraud, and failure

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. to appear. Asemota appeals the sentence imposed by the district

court, alleging an error resulting from “double counting” intended

loss and actual loss. Asemota also filed a motion for permission

to file a supplemental brief. Finding ambiguity, and therefore

potential error, in the use of intended and actual losses in

calculating Asemota’s sentence under the guidelines, we vacate his

sentence and remand for resentencing. We also deny his motion to

file a supplemental brief.

I

FACTS AND PROCEEDINGS

After Asemota pleaded guilty to the counts noted above, the

district court sentenced Asemota to 40 months’ imprisonment on each

of the fraud counts, to run concurrently, and six months’

imprisonment on the failure-to-appear count, to run consecutively

to his sentences on the fraud counts. Following sentencing,

Asemota instructed his second appointed counsel to file an appeal,

but counsel failed to do so. Asemota then filed a pro se notice of

appeal out of time. We remanded the case to the district court for

a determination of excusable neglect. The court held an

evidentiary hearing, after which the magistrate judge determined

that Asemota had shown excusable neglect for the late filing of his

notice of appeal.

Asemota next filed a motion to dismiss counsel and for

appointment of new counsel for his direct criminal appeal, arguing

that then-current counsel had demonstrated a conflict of interest

2 based on his opinion that Asemota's appeal had no merit. Counsel

responded by submitting an "Agreed Motion to Withdraw as Counsel"

and to permit Asemota to proceed pro se. A judge of this court

denied the motions and instructed the parties to proceed in

accordance with Anders if counsel was still of the opinion that the

appeal was frivolous. In response, counsel filed a motion to

withdraw, together with an Anders brief. After Asemota responded

to the motion, we denied counsel’s motion to withdraw and

instructed the parties to brief the issue raised by Asemota, i.e.,

whether the district court erred in its loss calculation.

II

ANALYSIS

A. Loss Calculation

Under U.S.S.G. § 2F1.1(b)(1)(I), the probation officer

increased Asemota’s base offense level eight points based on a loss

calculation of $234,773.35. Without specifically addressing

Asemota’s objections to the PSR, the district court adopted this

calculation as its fact finding regarding the loss attributable to

Asemota’s actions. The resulting sentencing range was 37 to 46

months. The district court expressly chose the highest possible

sentence in the guideline range due to the large number of

Asemota’s offenses and to his failure to appear in court on these

charges.

The principal thrust of Asemota’s argument is that the

district court erred by combining both the actual and intended loss

3 figures to arrive at a “total” loss of $234,773.35. Asemota

asserts that the district court double-counted by adding the actual

loss and intended loss, which already included the actual loss, to

arrive at the total loss figure of $234,773.35. According to

Asemota, the district court should have used only his “intended”

loss, totaling $126,717.24, as the basis for its loss calculation.

Asemota contends that the district court’s error produced a

sentence higher than was permissible under the Sentencing

Guidelines.

In response, the government argues that “Asemota’s imprecise

objection to the `computation of the dollar value of the actual and

intended loss’ was insufficient to preserve the error claimed for

review that there was `double-counting’ in arriving at the

$234,773.35 total loss amount.” The government contends that, as

Asemota failed to object properly, his appellate argument should be

reviewed for plain-error. The government also contends that, in

calculating the loss attributable to Asemota’s actions, the PSR

used the term “`intended’ loss in the sense of amounts that were

attempted to be inflicted but which did not actually cause losses.”

Thus, insists the government, “the total loss amount of $234,773.35

attributed to Asemota was computed by adding actual losses to

(additional) intended or attempted losses.” The government

concludes that no “double-counting occurred and that the

$234,773.35 total loss amount was thus the total `intended loss’

(including actual loss) and was properly used, since it was greater

4 than the actual loss.”

The argument that we should review the district court’s

findings for plain error is without merit. Asemota entered

objections to the PSR’s loss calculation by filing a “Statement on

Pre-Sentencing Report” in which he stated that “[d]efendant objects

to the government’s computation of the dollar value of the actual

and intended loss and requests further information to confirm that

such losses exceeded $200,000.” In addition, Asemota’s attorney

presented the objection during the sentencing hearing. These

objections were sufficient to preserve the error and to call the

district court’s attention to the claimed error “in such a manner

so that the district court may correct itself and thus, obviate the

need for [appellate] review.” United States v. Krout, 66 F.3d

1420, 1434 (5th Cir. 1995)(internal citation and quotation

omitted), cert. denied, 116 S. Ct. 963 (1996).

"Review of sentences imposed under the guidelines is limited

to a determination whether the sentence was imposed in violation of

law, as a result of an incorrect application of the sentencing

guidelines, or was outside of the applicable guideline range and

was unreasonable." United States v. Matovsky, 935 F.2d 719, 721

(5th Cir. 1991). Legal conclusions by the district court are

reviewed de novo and findings of fact are reviewed for clear error.

United States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir.), cert.

denied, 510 U.S. 895 (1993). The calculation of the amount of loss

is a factual finding that this court reviews for clear error.

5 United States v. Wimbish, 980 F.2d 312, 313 (5th Cir. 1992), cert.

denied, 508 U.S. 919 (1993).

The guideline applicable to cases involving fraud and deceit

is § 2F1.1. Under § 2F1.1(a), the base offense level for mail

fraud is six. This section provides for an incremental increase in

the base offense level if the loss suffered by the victims of the

fraud was over $2,000. § 2F1.1(b)(1). Eight points are added to

the base level of six if the loss exceeds $200,000 but is less than

$350,000. § 2F1.1(b)(1)(I). In calculating the loss attributable

to a defendant in a fraud case, the district court should use the

greater of the actual loss caused by the defendant’s actions or

“the intended loss that the defendant was attempting to inflict,”

if that can be determined. § 2F1.1, comment. (n.7).

In a case that involved a similar insurance fraud scheme, we

held that the intended loss, constituting the face amount of the

false claims submitted to the insurance companies, is to be used as

the loss calculation for sentencing purposes. United States v.

Lghodaro, 967 F.2d 1028, 1031 (5th Cir. 1992). We reasoned that

the fact that the insurance companies did not pay the entire amount

did not change the fact that the defendant intended to cause a loss

equal to the amount of false claims submitted. Id. In similar

fraudulent schemes, we have held that the amount of intended loss

is the potential amount to be gained from the fraudulent behavior,

whether realized or not. See e.g., United States v. Hill, 42 F.3d

914, 919 (5th Cir.), cert. denied, 116 S. Ct. 130, 133 (1995)(face

6 amount of securities fraudulently represented as "owned"); Wimbish,

980 F. 2d at 316 (face value of stolen checks deposited rather than

amount actually received).

Here, the PSR attributed the actual and intended losses caused

by Abudu to Asemota because Abudu acted under Asemota’s control.

There is, however, ambiguity in the PSR’s calculation of losses

attributable to Asemota’s and Abudu’s actions. In its assessment

of the loss attributable to Asemota, the PSR states,

Asemota submitted a total of 38 fraudulent insurance claims, resulting in an intended loss of $95,470.56 and an actual loss of $74,934.79. . . . As a result of Abudu’s fraudulent claims, the insurance companies sustained an actual loss of $33,121.32 plus an intended loss of $31,246.68. Specifically, Asemota’s and Abud[u]’s fraud, including actual and intended loss, totals $234,773.35.

The PSR later states that “the actual loss and intended loss in

this case totals $234,773.35.”

This is ambiguous. It is unclear whether the actual loss

suffered by the insurance companies is included in the intended-

loss figure, for the PSR provides support only for the $74,934.79

actual-loss total. These statements could also be interpreted to

conclude or indicate that the preparer of the PSR subtracted the

actual losses incurred ($74,934.79 + $33,121.32) from the face

amount of the fraudulent claims submitted ($234,773.35) to arrive

at an “intended” loss ($95,470.56 + $31,246.68). Yet the PSR

provides neither an indication that this calculation method was

used nor any other support for this interpretation.

7 If the district court included the actual loss in the

intended-loss total, it double-counted the actual loss by adding

the two figures together to arrive at the “total” loss of

$234,773.35. If that is what happened, the district court also

misapplied § 2F1.1 by adding the two figures instead of using the

greater of (1) the intended loss (fraudulent claims submitted), or

(2) the actual loss, as the loss to be used for sentence

calculation purposes. See Lghodaro, 967 F.2d at 1031; § 2F1.1

comment. (n.7). It seems clear to us that, if the district court

had used the greater of the two figures, the loss calculation would

not have exceeded $200,000. Under a plain reading of the PSR, the

district court should have used the intended loss total of

$126,717.24,1 as it was greater than the actual loss total of

$108,056.11.2 See Lghodaro, 967 F.2d at 1031; § 2F1.1 comment.

(n.7). Consequently, if such loss calculation was used, Asemota’s

sentencing range, with all other factors remaining the same, would

have been 33 to 41 months.

The government’s argument that the total loss of $234,773.35

was the “total intended loss (including actual loss) and was

properly used,” fails under Lghodaro. This argument suggests

double-counting. The district court must use the face amount of

1 Asemota’s intended loss was $95,470.56. Abudu’s attributable intended loss was $31,246.68. 2 The actual loss attributable to Asemota was $74,934.79; the actual loss attributable to Abudu was $33,121.32.

8 the claims submitted as the “loss” used for sentencing purposes.

See Lghodora, 967 F.2d at 1031. If the government’s argument is

construed to mean that the loss-calculation total used by the PSR

was, in fact, the face amount of the fraud claims submitted (as the

sum of intended loss and the actual loss), the PSR provides no

basis from which the court could draw that conclusion.

We are therefore constrained to conclude that resentencing is

required. The district court’s loss calculation, used as a basis

for Asemota’s sentence, is at best ambiguous. If the “intended”

loss actually includes the “actual” loss, the court indeed double-

counted the actual loss. In the alternative, the district court

erred in assessing the loss attributable to Asemota’s actions under

§ 2F1.1 by adding the intended loss and actual loss instead of

using the greater of the two figures. If the district court did

follow Lghodora and sentenced Asemota based on the amount of the

fraudulent claims he submitted to the insurance companies, it

provides no basis for such a finding. Because, under a plain

reading of the PSR and application of § 2F1.1 to the totals

provided therein, Asemota’s resultant sentencing range would have

been lower than the sentence he received, the district court was

clearly erroneous.

Accordingly, we have no choice but to vacate Asemota’s

sentence and remand the case for resentencing. The new sentencing

must be based on a new PSR, one which follows Lghodaro’s directive

and explains the basis for its actual and intended loss

9 calculations. If the current sentence was correctly based on the

amount of fraudulent claims submitted to the insurance

companies, the district court should articulate clear support for

such a loss-calculation finding.

B. Motion to File Supplemental Brief

Asemota filed a motion for leave to file a supplemental brief

to address whether the district court violated his double jeopardy

rights by imposing a $50 special assessment on each count of

conviction, and also to challenge the district court’s failure to

reduce his base offense level for acceptance of responsibility.

Asemota’s counsel filed the motion at the direction of Asemota

although counsel believed the issues to be of no merit. That

motion is denied. Asemota did not raise either issue in the

district court, and they were not addressed by Asemota’s counsel in

the appellate brief. Therefore, there is no argument to

supplement, and we would be reviewing the alleged errors raised in

the supplemental brief for the first time on appeal.

Sentence VACATED and REMANDED; motion DENIED.