United States v. Uchechi Ohanaka

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 24, 2020
• Docket: 19-11077
• Status: Unpublished

Opinion

Case: 19-11077 Date Filed: 06/24/2020 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11077 Non-Argument Calendar ________________________

D.C. Docket No. 4:18-cr-00024-WTM-CLR-1

UNITED STATES OF AMERICA, Plaintiff - Appellee,

versus

UCHECHI OHANAKA,

Defendant - Appellant. ________________________

Appeal from the United States District Court for the Southern District of Georgia ________________________

(June 24, 2020)

Before MARTIN, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

Uchechi Ohanaka, a federal prisoner, appeals his 125-month sentence for

conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349. He

argues that the district court erred in calculating a total intended loss amount of Case: 19-11077 Date Filed: 06/24/2020 Page: 2 of 13

$1.716 million and refusing to reduce his offense level because his crime was

merely an attempt. After careful review, we affirm.

I.

On October 9, 2018, Ohanaka pled guilty to one count of conspiracy to

commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349. The Probation

Department prepared a presentence investigation report (“PSR”). The PSR

described a conspiracy in which Ohanaka, Marvin Courson, and others

impersonated wealthy bank customers to gain access to their credit lines. In

November 2017, law enforcement arrested Courson at a Regions Bank branch in

Dallas, Texas, where he was using information provided by Ohanaka to

impersonate a bank customer named Irving Kahn to access Kahn’s $700,000 credit

line.

After his arrest, Courson began cooperating with law enforcement. He told

law enforcement that Ohanaka gave him documents that Courson used to

impersonate real people and try to withdraw money from their financial accounts.

In December 2017, under the supervision of law enforcement, Courson worked

with Ohanaka to try and access the bank accounts of Mark Emas. At this time,

Ohanaka provided Courson with documents containing Emas’s personal

identifying information and signature. Ohanaka gave Courson a fake Florida

driver’s license with Courson’s picture but Emas’s personal information, as well as

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a fake credit card embossed with Emas’s name. He instructed Courson to

memorize Emas’s personal identifying information and to practice replicating

Emas’s signature. Ohanaka traveled to Texas and waited in a car outside a BBVA

Compass bank branch in Irving, Texas, while Courson went into the bank and

successfully withdrew $216,000 in the form of a cashier’s check from Emas’s

home equity line of credit. Courson left the bank and got into Ohanaka’s parked

car. Federal agents then arrested Ohanaka.

After Ohanaka was arrested, law enforcement officers seized his cellphone

and retrieved audio recordings sent through the messaging application WhatsApp.

In one of these messages, sent November 23, 2017, Ohanaka stated, “If you want

to do two transactions that’s fine. I’m okay with that, but just give me one week

because that’s a lot of money . . . . You expect me to remove $800,000 within a

few days now. You know it takes time, but yes, it’s doable.”

The Probation Department calculated a base offense level of 7 under United

States Sentencing Guidelines § 2B1.1(a)(2). The PSR attributed to Ohanaka a total

intended loss amount of $1.716 million: $700,000 based on the attempt to defraud

Kahn, $216,000 based on the attempt to defraud Emas, and an additional $800,000

based on the recordings recovered from Ohanaka’s cell phone. Because the

intended loss amount was between $1.5 million and $3.5 million, the PSR applied

a 16-level increase under Guidelines § 2B1.1(b)(1)(I). The PSR also applied two-

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level increases each for the specific offense characteristics of relocating a

fraudulent scheme to evade law enforcement, § 2B1.1(b)(10)(A), and possessing or

using an authenticating feature, § 2B1.1(b)(11)(A)(ii). It also added three levels,

under Guidelines § 3B1.1(b), for Ohanaka’s managerial or supervisory role in the

conspiracy. Finally, it applied a three-level total reduction for acceptance of

responsibility under Guidelines § 3E1.1(a) and (b). Based on an offense level of

27 and a criminal history category of IV, Ohanaka’s recommended guideline range

was 100- to 125-months incarceration.

Ohanaka objected to the PSR’s intended loss calculations. First, he objected

to the $700,000 loss amount based on the attempt to defraud Kahn, on the ground

that he did not have knowledge of the amount of credit that Kahn had available.

He next objected to the $216,000 loss amount based on the information he

provided Courson to withdraw funds using Emas’s credit line. He argued this loss

amount was inappropriate because law enforcement prevented Courson from

actually withdrawing funds. He further argued this entitled him to a reduction

under Guidelines § 2X1.1(b)(1), since it qualified only as an attempted crime.

Finally, he argued that there was no evidence of overt action linking him to the

$800,000 loss amount based on his WhatsApp voice messages.

Ohanaka raised substantially the same objections at his March 11, 2019

sentencing hearing. Under oath, Ohanaka testified that the WhatsApp message

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regarding the withdrawal of $800,000 was part of a conversation with Abu Azuka,

a family friend who lives in Nigeria, regarding the purchase of vehicles and

property. On cross examination, the government presented Ohanaka with

messages sent to him by Azuka containing bank account information, usernames,

passwords, addresses, and dollar amount limitations for a number of individuals.

Ohanaka testified that he did not know whom the information belonged to and that

he did not know why Azuka sent him the information.

Special Agent Jason Lynch of the United States Secret Service also testified

at the sentencing hearing. He said his investigation revealed that Ohanaka and

Courson typically gained access to bank accounts knowing the account balance.

He said that Kahn’s account had a credit limit of $700,000. However, on cross-

examination he admitted he had no evidence of Ohanaka ever specifically stating

that he knew the Kahn account had a $700,000 line of credit. Agent Lynch also

testified that Ohanaka’s conversations with Azuka were not consistent with

international car sales. Rather, it appeared that Ohanaka and Azuka were

discussing fraudulently withdrawing funds from the accounts of the people whose

personal information Azuka sent to Ohanaka.

After hearing this testimony, the district court adopted the facts set out in the

PSR as well as the advisory guideline calculations, including the total loss amount

of $1,716,000. Based on these calculations, the court sentenced Ohanaka to a term

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of 125-months imprisonment and five-years supervised release. The court

explained that it imposed a sentence at the top of the guideline range because of

Ohanaka’s history of fraud-related offenses, his failure to abide by court orders,

and his lack of candor with the court and the probation office. Ohanaka timely

appealed.

II.

We review de novo the district court’s “legal interpretation of the sentencing

guidelines” and the “application of the sentencing guidelines to the facts.” United

States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014). But we review for clear

error the district court’s underlying factual findings, including the loss-amount

determination. Id.; United States v. Medina, 485 F.3d 1291, 1297 (11th Cir. 2007).

The government bears the burden of proving the amount of loss by a

preponderance of the evidence. United States v. Cover, 199 F.3d 1270, 1276 (11th

Cir. 2000) (per curiam). This burden must be satisfied with “reliable and specific

evidence.” United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997)

(quotation marks omitted).

III.

On appeal, Ohanaka challenges his 16-level sentencing enhancement based

on the calculated intended loss of $1,716,000. He first argues that he is entitled to

a three-level reduction under Guidelines § 2X1.1(b)(1), because the issuance of a

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check to Courson under Emas’s line of credit should have been categorized as an

attempt to defraud Emas. He also argues that the $700,000 loss based on the

attempt to defraud Kahn and the $800,000 loss based on his conversations with

Azuka were too speculative to serve as the basis for his loss amount. We address

these arguments in turn.

A.

Ohanaka first argues that, if law enforcement agents had prevented Courson

from completing the Emas transaction before he left the bank, the offense would

have been only an attempt crime. He claims this entitles him to a reduction of his

offense level under Guidelines § 2X1.1(b)(1). This argument is without merit.

Section 2X1.1(b)(1) entitles a defendant to a three-level reduction from the

base offense level if the crime was an attempt. Section 2X1.1(b)(2) provides for

the same reduction if the crime was a conspiracy. But Section 2X1.1(b)(2) does

not apply if “the defendant or a co-conspirator completed all the acts the

conspirators believed necessary on their part for the successful completion of the

substantive offense or the circumstances demonstrate that the conspirators were

about to complete all such acts but for apprehension or interruption by some

similar event beyond their control.” Section 2X1.1(b)(1) similarly allows the court

to decline a three-level reduction for an attempt “if the factual circumstances show

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that the offense was about to be complete but for an interruption beyond the

defendant’s control.” United States v. Lee, 427 F.3d 881, 894 (11th Cir. 2005).

The district court did not err in finding Ohanaka ineligible for a three-point

offense level reduction under § 2X1.1(b)(1) or (2). Ohanaka admitted at his

change of plea hearing that he instructed Courson to enter the BBVA Compass

bank branch and get a cashier’s check for $216,000 in Emas’s name. He also

admitted that he provided Courson with the information necessary to impersonate

Emas and complete this transaction. These admissions show, by a preponderance

of the evidence, that at the time of his arrest Ohanaka had completed all the steps

he thought necessary for his role in the bank fraud. This renders him ineligible for

the reduction under either prong of § 2X1.1. Cf. United States v. Khawaja, 118

F.3d 1454, 1458 (11th Cir. 1997) (holding that the district court erred in failing to

apply § 2X1.1(b)(2) where the conspirators had failed to take “crucial steps” in a

money laundering scheme).

Neither does the fact that Courson was cooperating with law enforcement

make Ohanaka eligible for a § 2X1.1 reduction. In this prosecution, as in most

prosecutions for attempt or conspiracy, “the reduction is not warranted because the

substantive offense had been substantially completed” and it was only because of

law enforcement that the offense “was interrupted or thwarted.” United States v.

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Watkins, 477 F.3d 1277, 1280 (11th Cir. 2007). The district court did not err by

declining to give Ohanaka a three-level reduction under § 2X1.1.

B.

Ohanaka next argues that the district court erred in attributing a $700,000

loss amount based on the attempt to withdraw money from Kahn’s account. He

claims there was no specific evidence in the record that Ohanaka knew the account

had a $700,000 credit line. While Ohanaka is correct that the government

presented no direct evidence that he had knowledge of the value of Kahn’s credit

line, we conclude that circumstantial evidence sufficiently supported the district

court’s loss finding.

When calculating the amount of loss attributable to a defendant, the district

court applies the greater of the actual or intended loss. See USSG § 2B1.1(b)(1),

cmt. n.3(A). Intended loss is the pecuniary harm that the defendant purposely

sought to inflict, including intended harm “that would have been impossible or

unlikely to occur.” Id. § 2B1.1(b)(1), cmt. n.3(A)(ii). While the government bears

the burden of proving the amount of loss by a preponderance of the evidence, the

sentencing court need only make a reasonable estimate of the loss amount. Id.

§ 2B1.1(b)(1), cmt. n.3(C). This is because “often the amount of loss caused by

fraud is difficult to determine accurately.” United States v. Miller, 188 F.3d 1312,

1317 (11th Cir. 1999) (per curiam).

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At the sentencing hearing, Agent Lynch testified that his investigation

revealed that Ohanaka and his co-conspirators targeted credit lines specifically

because of their high value and knew how much money was in the accounts they

accessed. This contention was supported by a recorded conversation with Courson

in which Ohanaka said that he knew that Kahn had a line of a credit and a checking

account containing $4,000. It was also supported by Ohanaka’s prior conduct.

During the attempt to defraud Emas, Ohanaka informed Courson of the balances in

Emas’s account and instructed Courson to withdraw $216,000, which approached

the total value of a credit line worth approximately $249,000.

Given this evidence, it was reasonable for the district court to infer that

Ohanaka knew the credit limit on Kahn’s account. See United States v.

Manoocher Nosrati-Shamloo, 255 F.3d 1290, 1292 (11th Cir. 2001) (per curiam)

(“A defendant’s intent is often difficult to prove and often must be inferred from

circumstantial evidence.”). But even absent this inference, the district court did not

clearly err in calculating a loss amount equal to the full value of Kahn’s credit line.

In an analogous case, this Court held that “once a defendant has gained access to a

certain credit line by fraudulently applying for credit cards, a district court does not

err in determining the amount of the intended loss as the total line of credit to

which Defendant could have access.” Id. at 1291. Similarly here, it was

reasonable for the district court to infer that Ohanaka intended to withdraw all, or

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close to all, of the funds available under Kahn’s credit line, particularly in light of

the fact that Ohanaka previously instructed Courson to withdraw nearly all of the

funds available under Emas’s credit line.

We therefore hold that the district court did not clearly err in applying a

$700,000 intended loss amount based on Kahn’s credit line.

C.

Finally, Ohanaka argues that the district court erred in attributing to him an

$800,000 intended loss based on his conversation with Azuka. He raises two

objections on appeal. First, relying on his testimony at the sentencing hearing, he

argues that his conversations with Azuka were about the purchase of cars and

property. He claims the account numbers and personal identifying information

Azuka sent him had nothing to do with illegal transactions and argues that the

district court’s conclusion that they did was mere speculation. Second, he argues

that the district court erred by failing to define the scope of his criminal activity

before determining the foreseeable loss amount. Neither of these arguments is

persuasive.

First, although the government did not specifically identify targeted

accounts, the loss amount was adequately supported by the record. The

government uncovered Ohanaka’s recorded statement that he was willing to

remove $800,000 from an account in the near future. This message was sent in the

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context of receiving from Azuka private personal and financial information similar

to what Ohanaka had used to attempt to defraud Kahn and Emas. Further, Agent

Lynch testified that Ohanaka’s conversation with Azuka was inconsistent with

international automobile purchases and was more consistent with identifying new

victims to target for fraud. Taken together, this evidence was sufficient for the

district court to find Ohanaka’s explanation of the messages not credible and

attribute to him the $800,000 intended loss amount. See United States v. Ramirez-

Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (holding that deference is owed to the

trial court’s credibility determination, since it is in “a better position than a

reviewing court to assess the credibility of witnesses”).

Second, the district court did not commit reversible error by not making

explicit findings regarding the scope of Ohanaka’s criminal activity. “[A]

sentencing court’s failure to make individualized findings regarding the scope of

the defendant’s activity is not grounds for vacating a sentence if the record

support[s] the court’s determination with respect to the offense conduct.” United

States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002). Ohanaka’s claim that his

voice message was not related to criminal conduct is not sufficient to upset the

finding that the message showed his intent to work with coconspirators to defraud

an unidentified person of $800,000. And Ohanaka’s reliance on United States v.

Hunter, 323 F.3d 1314 (11th Cir. 2003), is of little help, as that case involved a

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defendant’s liability for actual losses caused by the actions of other coconspirators.

See id. at 1319. We therefore conclude that the district court did not err in

attributing the $800,000 loss amount to Ohanaka.

IV.

Ohanaka has not shown either that the district court clearly erred in

calculating the loss amount or that it erred in declining to award a reduction under

Guidelines § 2X1.1(b)(1). We therefore affirm the sentence imposed by the district

court.

AFFIRMED.