United States v. Oriyomi Aloba

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2022
• Docket: 19-50343
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 16 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50343

Plaintiff-Appellee, D.C. No. 2:18-cr-00083-RGK-1 v.

ORIYOMI ALOBA, MEMORANDUM

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted March 9, 2022 Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and MOLLOY,** District Judge.

Following a three-day jury trial, Oriyomi Aloba was convicted of a series of

computer-related offenses, including wire fraud and aggravated identity theft,

based on a July 2017 phishing attack targeting the Los Angeles County Superior

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 1 Court. He was sentenced to 145 months in custody and three years of supervised

release. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We

affirm the Aloba’s conviction but remand for resentencing.

1. The pretrial suppression motions were properly denied. Even assuming

the July 28, 2017 state email warrants were unconstitutionally overbroad because

of their “indiscriminate sweep,” Stanford v. Texas, 379 U.S. 476, 486 (1965), the

subsequent federal email warrants provided an independent source for the email

evidence because they were supported by probable cause and did not rely on any of

the information obtained from the state warrants, Murray v. United States, 487

U.S. 533, 542 (1988); United States v. Heckenkamp, 482 F.3d 1142, 1149 (9th Cir.

2007). The fact that the federal warrant sought evidence in the state’s possession

does not alter this inquiry. See United States v. Romero, 585 F.2d 391, 395 (9th

Cir. 1978). Additionally, the evidence related to the AT&T phone warrants was

either not subject to Fourth Amendment protection, Smith v. Maryland, 442 U.S.

735, 745–46 (1979), and in any event its seizure was harmless because it was not

used in the prosecution, United States v. Job, 871 F.3d 852, 865 (9th Cir. 2017).

Finally, the search warrant for the “Katy Residence”—the only physical

search that resulted in the seizure of evidence used in the prosecution—was

supported by probable cause because the warrant affidavit discussed in detail how

phishing campaigns are orchestrated and executed and how Aloba was connected

2 to the attack under investigation. The affidavit also chronicled Aloba’s recent

connection to the residence and identified the types of digital devices and media

that investigators believed would be present and how those items could be used in

the underlying offenses. Thus, the seizure “was described in the narrowest terms

reasonably likely to contain” evidence related to the offense. United States v.

Brobst, 558 F.3d 982, 993 (9th Cir. 2009). By setting forth the details of the

scheme and the instrumentalities of the crime the government satisfied its burden,

and “[t]he magistrate judge . . . properly approved the warrant, which in turn

encompassed all the computers found at [the] residence.” United States v. Adjani,

452 F.3d 1140, 1147 (9th Cir. 2006).

2. We do not reach the merits of Aloba’s specific challenges to his sentence

on appeal because a procedural error requires remand for resentencing. In

imposing the sentence, the district court did not address any of Aloba’s objections

to the calculation of the Sentencing Guidelines or analyze any of the 18 U.S.C.

§ 3553(a) factors. Despite the government’s efforts to create a record on these

issues, the court simply stated, “[t]he Court . . . has accepted the presentence

report,” and “[t]he Court has considered and has adopted the presentence report’s

calculations and the reasons in the presentence report calculation.” That

explanation is not sufficient in light of the specific objections and arguments raised

by the defendant. See Fed. R. Crim. P. 32(i)(3)(B); United States v. Doe, 705 F.3d

3 1134, 1153 (9th Cir. 2013) (“The Ninth Circuit has mandated strict compliance

with Rule 32, explaining that the rulings must be express or explicit.”) (quotation

marks omitted); United States v. Carty, 520 F.3d 984, 992–93 (9th Cir. 2008)

(“[W]hen a party raises a specific, nonfrivolous argument tethered to a relevant

§ 3553(a) factor in support of a requested sentence, then the judge should normally

explain why he accepts or rejects the party’s position.”). The district court’s “total

omission goes against the explicit policy” that a sentencing judge “set forth enough

to satisfy the appellate court that he has considered the parties’ arguments and has

a reasoned basis for exercising his own legal decisionmaking authority.” United

States v. Trujillo, 713 F.3d 1003, 1010 (9th Cir. 2013) (quoting Rita v. United

States, 551 U.S. 338, 356 (2007)). Because the failure to calculate the Guidelines

correctly and consider the § 3553(a) factors is a “significant procedural error,” Gall

v. United States, 552 U.S. 38, 51 (2007); see also 18 U.S.C. § 3553(c) (requiring a

district court to “state in open court the reasons for its imposition of the particular

sentence”), remand for a complete resentencing is required.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.1

1 We decline to entertain Aloba’s pro se submission of a supplemental brief because he is represented by counsel. 28 U.S.C. § 1654. 4