United States v. Tayo Ogunbanke

619 F. App'x 586
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 27, 2015
Docket13-50600
StatusUnpublished

This text of 619 F. App'x 586 (United States v. Tayo Ogunbanke) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Tayo Ogunbanke, 619 F. App'x 586 (9th Cir. 2015).

Opinion

MEMORANDUM ***

Defendant-appellant, Tayo Ogunbanke, appeals the sentence imposed by the district court following his conviction of one count of access device fraud, in violation of 18 U.S.C. § 1029. Exercising jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm Ogunbanke’s sentence.

1. Ogunbanke first asserts the district court erred in calculating his advisory guidelines range. He argues the government failed to prove that a substantial part of the fraudulent scheme in which he 'was involved was committed from outside the United States and, thus, the district court erroneously applied a two-level enhancement pursuant to U.S.S.G. § 2Bl.l(b)(10)(B). We review a district court’s interpretation of the Sentencing Guidelines de novo. United States v. Hornbuckle, 784 F.3d 549, 553 (9th Cir.2015). Findings of fact are reviewed for clear error. Id.

2. Because the Sentencing Guidelines do not define “substantial,” we look to the dictionary for the plain meaning of the term. United States v. Flares, 729 F.3d 910, 914 (9th Cir.2013). The definitions of “substantial” relevant to § 2Bl.l(b)(10)(B) include: “an important material matter, thing, or part,” Webster’s Third New International Dictionary 2280 (1993), and “an essential part, point, or feature,” 17 Oxford *588 English Dictionary 67 (2d ed.1989). With these definitions in mind, we conclude that application of the § 2Bl.l(b)(10)(B) enhancement to the calculation of Ogun-banke’s offense level is amply supported by the district court’s unchallenged findings.

3. Ogunbanke argues the district court erred by basing the § 2Bl.l(b)(10)(B) enhancement on evidence obtained from a French investigation into the fraud scheme. The challenged evidence includes, inter alia, a wiretapped conversation between Ogun-banke and his co-conspirator in France and information obtained after Ogun-banke’s co-conspirators were arrested. Ogunbanke’s fifth amendment challenge fails for two reasons. As Ogunbanke himself admits, the district court did not rely on the wiretapped conversations themselves. 1 Further, the evidence actually considered by the district court, including ■ information derived from the French investigation, has minimal indicia of reliability. United States v. Alvarado-Martinez, 556 F.3d 732, 735 (9th Cir.2009) (per curiam) (“[A] district court may consider any relevant information, provided that the information has sufficient indicia of reliability to support its probable accuracy.” (internal quotation marks omitted)); United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir.2006) (reiterating that hearsay statements can be considered at sentencing).

4. The record details the fraud scheme. Ogunbanke forwarded stolen credit card account numbers and corresponding identifying information to coconspirators who created counterfeit credit cards. He contacted the financial institution associated with the counterfeit card, impersonated the putative cardholder, and fraudulently advised the institution that the cardholder would be traveling internationally. The counterfeit credit cards were then used by the eoconspirators to complete fraudulent transactions. The district court, adopting the Presentence Investigation Report, found that “the majority of the fraudulent transactions occurred] abroad in locations including France, Italy, Japan, the Netherlands, Spain, and Thailand.” See United States v. Charlesworth, 217 F.3d 1155, 1160 (9th Cir.2000) (“[A] sentencing court may rely only on an unchallenged PSR to find that the facts underlying a sentence enhancement have been established by a preponderance of the evidence.”). The international feature of the scheme was an essential component of the crime because it permitted Ogunbanke’s co-conspirators to engage in fraudulent transactions without detection by law enforcement or the issuing financial institutions.

5. Ogunbanke next argues the district court erroneously applied a “variance of just three months” to ameliorate the sentencing consequences of the government’s decision to prosecute him separately for an illegal reentry charge when it should have varied by six months. Because Ogunbanke’s seventy-two-month sentence was within a properly calculated advisory guidelines range, it did not involve a variance. United States v. Mosehella, 727 F.3d 888, 893 (9th Cir.2013) (describing a variance as a sentence “above or below the properly calculated final sentencing range”). Ogunbanke can *589 only be arguing his sentence is substantively unreasonable because the district court did not adequately consider the effect of the separate prosecutions. We review the substantive reasonableness of a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

6. A sentence is substantively reasonable if “the district court considered the specific facts presented by [the] case and ... its sentence was consistent with its assessment of [those] facts.” United States v. Apodaca, 641 F.3d 1077, 1082 (9th Cir.2011). Here, the district court carefully detailed its analysis of the factors set out in 18 U.S.C. § 3553(a). The court stated it was indisputable that the amount of the loss from the crime of conviction was greater than the amount used to calculate Ogunbanke’s offense level, and noted Ogunbanke had a “lengthy criminal history that is not reflected in the formality of the Guidelines.” Accordingly, the district court expressed its view that a sentence at the harsher end of the advisory guidelines range was appropriate. The court also expressly stated it had considered the fact that Ogunbanke was prosecuted separately for the immigration violation. Nothing in the record supports Ogunbanke’s assertion his the sentence is greater than necessary to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, to adequately deter criminal conduct, or to protect the public from further criminal activity. Thus, he has failed to show his sentence is substantively unreasonable.

7.

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Related

Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Apodaca
641 F.3d 1077 (Ninth Circuit, 2011)
United States v. Richard Dehart Charlesworth
217 F.3d 1155 (Ninth Circuit, 2000)
United States v. Horace Littlesun
444 F.3d 1196 (Ninth Circuit, 2006)
United States v. Jorge Valdavinos-Torres
704 F.3d 679 (Ninth Circuit, 2012)
United States v. Ronald Moschella
727 F.3d 888 (Ninth Circuit, 2013)
United States v. Yoahjan Flores
729 F.3d 910 (Ninth Circuit, 2013)
United States v. Alvarado-Martinez
556 F.3d 732 (Ninth Circuit, 2009)
United States v. Tynisha Hornbuckle
784 F.3d 549 (Ninth Circuit, 2015)

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Bluebook (online)
619 F. App'x 586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tayo-ogunbanke-ca9-2015.