United States v. Victor Bazuaye, AKA Victor Austin Abdullahi Nmn Mohammed

240 F.3d 861, 2001 Daily Journal DAR 1845, 2001 Cal. Daily Op. Serv. 1452, 2001 U.S. App. LEXIS 2416, 2000 WL 33176944
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 20, 2001
Docket99-50544
StatusPublished
Cited by25 cases

This text of 240 F.3d 861 (United States v. Victor Bazuaye, AKA Victor Austin Abdullahi Nmn Mohammed) 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. Victor Bazuaye, AKA Victor Austin Abdullahi Nmn Mohammed, 240 F.3d 861, 2001 Daily Journal DAR 1845, 2001 Cal. Daily Op. Serv. 1452, 2001 U.S. App. LEXIS 2416, 2000 WL 33176944 (9th Cir. 2001).

Opinion

D.W. NELSON, Circuit Judge:

Victor Bazuaye appeals his conviction for money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)®, and the district court’s decision to deny a sentence reduction for acceptance of responsibility. Ba-zuaye argues (1) a rational trier of fact could not have concluded from the stipulated facts that the money laundering transaction at issue affected interstate commerce, and (2) the district court erred in denying a sentence reduction for acceptance of responsibility where the defendant pleaded guilty on two counts and agreed to a bench trial with stipulated facts on the third charge. We hold that there was substantial evidence of a nexus with interstate commerce based on the district court’s reasonable inference from the stipulated facts that banking channels were used in processing the stolen check. We also conclude that the district court did not clearly err in denying a sentence reduction for acceptance of responsibility based on the defendant’s false statements to the probation office. We affirm.

/. FACTUAL AND PROCEDURAL BACKGROUND

On February 13, 1998, Victor Bazuaye was indicted for mail fraud, possession of stolen mail, and money laundering in violation of 18 U.S.C. §§ 1341, 1708, and 1956(a)(1)(A)®. Bazuaye initially pleaded not guilty to all charges, but in August 1998, he entered into a plea agreement in which he pleaded guilty to mail fraud and possession of stolen mail and agreed to a bench trial on the money laundering charge.

As part of the plea agreement, Bazuaye stipulated to the following facts:

In September 1995, Novus Services, Inc. (“Novus”), mailed a pre-approved Discover credit card application to Joanna Shen. Bazuaye obtained the application knowing it had been stolen from the mail. He then acquired Shen’s personal information and used it, in conjunction with erroneous employment information, to complete the Discover card application.

Before the Discover card was issued, Bazuaye contacted Novus and informed them that Shen had moved to another address. The new address was actually a mailbox that Bazuaye had rented for the purpose of receiving fraudulently obtained credit cards. Based on the information provided by Bazuaye, Novus issued a Discover card to Joanna Shen with a credit limit of $2,000 and sent it to Bazuaye’s mail box. Bazuaye admitted that by engaging in this activity he “knowingly engaged in a scheme to obtain money by means of false pretenses, promise or representation with the intent to defraud.”

In November 1995, Bazuaye obtained three “convenience checks” that were sent to Trang Nguyen by his credit card company MBNA, knowing that these checks were stolen from U.S. mails. In February 1996, Bazuaye charged approximately $2,000 on the Shen Discover credit card. After exhausting the credit limit, Bazuaye paid off the debt with one of the MBNA convenience checks so that he could restore the available credit and take additional fraudulent cash advances.

*863 Novus received the MBNA convenience check, immediately credited $2,000 to the Shen credit card account, and then forwarded the convenience check to MBNA for payment. After receiving notice from MBNA that the check would not be honored, Novus immediately debited $2,000 from the Shen account; however, during the intervening week, Bazuaye had fraudulently charged another $2,000 on the Shen Discover card.

This is the extent of the stipulated facts. During the trial, the government presented evidence to supplement the record on the interstate commerce element of the money laundering charge. The district court received this evidence subject to briefing and additional oral argument about whether the evidence was appropriate given the parties’ agreement to proceed based on the stipulated facts. Before the district court could rule on this issue, however, the government withdrew the evidence and agreed to proceed based only on the stipulated facts. On April 29, 1999, the district court issued a minute order denying Bazuaye’s motion to dismiss and finding him guilty of money laundering.

At the sentencing phase the prosecution sought an upward adjustment under U.S.S.G. § 3C1.1 for obstruction of justice based on false statements Bazuaye had made to the probation office regarding his citizenship. Bazuaye opposed the upward adjustment and requested a three-point reduction under § 3E1.1 for acceptance of responsibility because he pleaded guilty to counts one and two and agreed to a bench trial on stipulated facts for count three.

The district judge determined that Ba-zuaye’s false statements did not constitute obstruction of justice because the subject matter of the lies had “at best, tangential materiality” to the charge. Nevertheless, he held that Bazuaye’s false statements precluded a reduction for acceptance of responsibility because they were “inconsistent with a sincere acceptance of responsibility.”

Bazuaye was sentenced to 57 months in prison on each of the three counts, to run concurrently; five years supervised release; and $329,861.80 in restitution. He filed a timely notice of appeal.

II. STANDARD OF REVIEW

We review a challenge to the sufficiency of the evidence in a criminal conviction for substantial evidence. See United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir.1986). There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution and drawing all reasonable inferences, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See United States v. Deeb, 175 F.3d 1163, 1168 (9th Cir.1999); United States v. Cusino, 694 F.2d 185, 187 (9th Cir.1982).

A district court’s decision about whether a defendant has accepted responsibility is a factual determination reviewed for clear error. See United States v. Fleming, 215 F.3d 930, 939 (9th Cir.2000). As the Sentencing Guidelines make clear: “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1, cmt. n. 5.

III. DISCUSSION

In any money laundering prosecution, “[a] nexus with interstate commerce is both a jurisdictional requirement and an essential element of the offense.” United States v. Ladum,

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240 F.3d 861, 2001 Daily Journal DAR 1845, 2001 Cal. Daily Op. Serv. 1452, 2001 U.S. App. LEXIS 2416, 2000 WL 33176944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-victor-bazuaye-aka-victor-austin-abdullahi-nmn-mohammed-ca9-2001.