United States v. John Oscar Kalu , 485 F. App'x 366 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12728
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cr-20625-FAM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JOHN OSCAR KALU,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 30, 2012)
Before TJOFLAT, ANDERSON and EDMONDSON, Circuit Judges.
PER CURIAM:
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John Oscar Kalu appeals his convictions and total sentence of 168 months’
imprisonment for 1 count of conspiracy to commit bank fraud, in violation of 18
U.S.C. § 1349; 2 counts of bank fraud, in violation of 18 U.S.C. §§ 1344 and 2;
and 2 counts of aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1)
and 2. The court sentenced Kalu to 120 months’ imprisonment for Counts 1
through 3 to be served concurrently, to 2 years for Count 5 to be served
consecutively to Counts 1 through 3, and to 2 years for Count 6 to be served
consecutively to Count 5. On appeal, Kalu argues that (1) the district court erred
in denying his motion to suppress physical evidence and statements, and (2) the
district court incorrectly applied the Sentencing Guidelines and improperly
imposed an upward variance at sentencing.
I.
Kalu argues that the district court clearly erred in denying his motion to
suppress. Kalu contends that, because the court was presented with conflicting
witness testimony, it had to make detailed credibility determinations that it did not
believe a witness’s claim, which it failed to do. Further, Kalu contends that the
report and recommendation that the district court adopted was contradictory and
vague. Kalu also argues that his motion sought the suppression of incriminating
statements that he had made following his arrest, but the court failed to address
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this argument in any way.
In reviewing a district court’s denial of a motion to suppress, we review its
findings of fact for clear error and its application of law to those facts de novo.
United States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007). The
voluntariness of a defendant’s statement is a question of law. United States v.
Farley, 607 F.3d 1294, 1326 (11th Cir.), cert. denied, 131 S.Ct. 369 (2010). We
construe all facts in the light most favorable to the party prevailing in the district
court . Ramirez, 476 F.3d at 1236. “Credibility determinations are typically the
province of the fact finder because the fact finder personally observes the
testimony and is thus in a better position than a reviewing court to assess the
credibility of witnesses.” United States v. Ramirez-Chilel, 289 F.3d 744, 749
(11th Cir. 2002). We accept the district court’s choice of whom to believe “unless
it is contrary to the laws of nature, or is so inconsistent or improbable on its face
that no reasonable factfinder could accept it.” Id. (quotation omitted). We defer
to a district court’s factual determinations unless its understanding of the facts
appears to be unbelievable. Id. We may affirm the denial of a motion to suppress
on any ground supported by the record. United States v. Caraballo, 595 F.3d
1214, 1222 (11th Cir. 2010). Further, we may consider evidence presented at a
defendant’s trial and are not limited to the evidence introduced at the suppression
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hearing. United States v. Villabona-Garnica, 63 F.3d 1051, 1056 (11th Cir.
1995).
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. In most circumstances, unless there is consent,
law enforcement officers must obtain a warrant supported by probable cause to
justify a search under the Fourth Amendment. United States v. Magluta, 418 F.3d
1166, 1182 (11th Cir. 2005). There are, however, a number of exceptions to the
warrant requirement. Id. A full search incident to a lawful arrest is one such
exception to the warrant requirement. United States v. Goddard, 312 F.3d 1360,
1364 (11th Cir. 2002). “The justification or reason for the authority to search
incident to a lawful arrest rests quite as much on the need to disarm the suspect in
order to take him into custody as it does on the need to preserve evidence on his
person for later use at trial.” Id. (quotation omitted). Thus, “[s]ince the custodial
arrest of a suspect based on probable cause is a reasonable intrusion under the
Fourth Amendment, a search incident to the arrest requires no additional
justification.” Id.Another exception to the warrant requirement is an inventory search of a
legally impounded vehicle that is conducted pursuant to an established procedure.
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South Dakota v. Opperman, 428 U.S. 364, 372-76, 96 S.Ct. 3092, 3098-3101, 49
L.Ed.2d 1000 (1976). The government has the burden to show the requirements of
an inventory search have been met. Sammons v. Taylor, 967 F.2d 1533, 1543
(11th Cir. 1992). An inventory search permits a thorough search of property
lawfully in police custody, as long as that search is consistent with the police
caretaking function. United States v. O’Bryant, 775 F.2d 1528, 1534 (11th Cir.
1985). To show that an inventory search is lawful, the government must establish,
first, that the officers had the authority to impound the defendant’s vehicle, and
second, that the officers complied with departmental policy in conducting the
search. United States v. Williams, 936 F.2d 1243, 1248 (11th Cir. 1991). “An
inventory search is not a surrogate for investigation, and the scope of an inventory
search may not exceed that necessary to accomplish the ends of the inventory.”
United States v. Khoury, 901 F.2d 948, 958 (11th Cir. 1990). Ordinarily, the
prosecution presents evidence at the suppression hearing concerning the
standardized procedures limiting the discretion of the investigating officers.
When this evidence is presented, “[t]he prosecution assures itself a smoother and
surer path when it provides concrete evidence that the inventory search followed a
standardized procedure pursuant to regulatory strictures.” However, where law
enforcement provides uncontroverted testimony that an inventory search “was
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routine and required, that is, the search was performed as a matter of course when
a vehicle was impounded and the investigating officer was not at liberty to decline
to inventory the contents,” we have held that the evidence is sufficient to show
that an inventory search was properly executed. Id.The Fifth Amendment states that no person “shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. The Fifth
Amendment’s privilege against self-incrimination is fully applicable during a
custodial interrogation, but a suspect may still waive his right to remain silent after
being properly advised of it, if he does so “voluntarily, knowingly and
intelligently.” Farley, 607 F.3d at 1326 (quotation omitted). However, voluntary
incriminating statements not made in response to an officer’s questioning are
freely admissible without regard to whether a suspect properly waived his right to
remain silent. United States v. Suggs, 755 F.2d 1538, 1541 (11th Cir. 1985).
A review of the record shows that any search that occurred at the time of
Kalu’s arrest was constitutional. Kalu’s main argument is that the district court
should have made specific credibility determinations to conclude whether the
physical evidence seized was in his vehicle or discovered near Kalu’s person. To
the extent evidence was discovered on or near Kalu’s person, it occurred incident
to a lawful arrest, and to the extent evidence was discovered in Kalu’s vehicle, it
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was discovered during a lawful inventory search of his impounded vehicle. Thus,
the search was proper either way, and the district court did not err. Further,
contrary to Kalu’s position on appeal, the court properly addressed whether Kalu’s
statement was voluntary. The court cited Officer Surman’s unchallenged
testimony that Kalu’s statements were voluntarily made. Thus, we affirm the
court’s decision denying Kalu’s motion to suppress.
II.
Kalu argues that, because the district court erred in failing to sustain
numerous objections to his guideline calculation and abused its discretion in its
decision to upwardly vary from the applicable guideline range, his total sentence
of 168 months’ imprisonment is unreasonable. First, Kalu contends that the court
erred in assessing a two-level enhancement, pursuant to U.S.S.G. § 3C1.1, for
obstruction of justice based on his testimony at trial. Next, Kalu argues that the
evidence offered by the government did not show that he intended a loss of over
$400,000, under U.S.S.G. § 2B1.1(b)(1)(H). Kalu further argues that the court
erred in assessing him 1 criminal history point for his prior felony conviction for
driving while his license was suspended and sentence of 19 days’ imprisonment.
Kalu contends that the Guidelines expressly state that a conviction for such a
crime, regardless of whether it is a felony or misdemeanor, cannot be used for
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calculating a criminal history category unless the term of the sentence imposed
was at least 30 days’ imprisonment or more than 1 year of probation. Kalu also
contends that the court erred in not granting his request for a downward departure
under U.S.S.G. § 4A1.3 because his criminal history category of III over-
represented the seriousness of his past criminal history. Finally, Kalu asserts that
the court abused its discretion in its 49-month upward variance from the guideline
range and imposition of a total sentence of 168 months’ imprisonment.
We undertake a two-part inquiry in evaluating a sentence’s reasonableness.
First, we ensure that the district court did not commit a significant procedural
error, such as improperly calculating the guideline range, treating the Guidelines
as mandatory, failing to consider § 3553(a) factors, selecting a sentence based on
clearly erroneous factors, or failing to explain adequately the chosen sentence.
United States v. Gonzales, 550 F.3d 1319, 1323 (11th Cir. 2008). If there are no
such errors, the second step is to review the sentence’s substantive reasonableness
by “examining the totality of the circumstances, including an inquiry into whether
the statutory factors in § 3553(a) support the sentence in question.” Id. at 1323-
24.
Obstruction of Justice Enhancement
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We review the district court’s factual finding that a defendant obstructed
justice only for clear error. United States v. Tapia, 59 F.3d 1137, 1144 (11th Cir.
1995). Under the Guidelines, the obstruction of justice enhancement applies
where “the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the investigation, prosecution,
or sentencing of the instant offense of conviction . . . .” U.S.S.G. § 3C1.1. The
enhancement should not apply based on false testimony where the testimony at
issue is the result of confusion, mistake, or faulty memory. United States v.
Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d 445 (1993).
Enhancing a defendant’s sentence because of his perjury does not interfere with
his right to testify, because a defendant’s right to testify does not include a right to
commit perjury. Id. at 96, 113 S.Ct. at 1117.
Although concern can arise that courts will enhance sentences pursuant to
U.S.S.G. § 3C1.1 as a matter of course whenever the accused takes the stand and
is found guilty, this concern is alleviated by the requirement that, if an accused
challenges a sentence increase based on perjured testimony, the trial court must
make findings to support all the elements of a perjury violation in the specific
case. Id. at 96-97, 113 S.Ct. at 1118. Thus, we prefer that the district court make
specific findings as to each alleged instance of obstruction by identifying the
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materially false statements individually. United States v. Dobbs, 11 F.3d 152, 155
(11th Cir.1994). An enhancement for perjury properly applies where a court
makes a determination that the testimony of the defendant on a material matter is
false because it is inconsistent as compared to another witness’s testimony that the
judge determines is truthful. Id.The court did not clearly err in applying U.S.S.G. § 3C1.1 to Kalu’s offense
level because his testimony was contradicted by overwhelming evidence at trial
and shows that he testified falsely on matters material to the government’s case
against him.
Loss Amount Determination
The district court’s determination of loss is reviewed for clear error. United
States v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011), cert. denied, (U.S.
Jan. 9, 2012) (No. 11-7635). The Guidelines do not require a precise
determination of loss, and a court “need only make a reasonable estimate of the
loss, given the available information.” Id. (quotation omitted). District courts are
in a unique position to evaluate the evidence relevant to a loss determination, and
thus, their determinations are “‘entitled to appropriate deference.’” United States
v. Bradley, 644 F.3d 1213, 1290 (11th Cir. 2011) (quoting U.S.S.G. 2B1.1,
comment (n.2(c)), petition for cert. filed, (U.S. Dec. 12, 2011) (No. 11-844). The
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court may make factual findings with respect to its loss determination based on
“evidence heard during trial, undisputed statements in the PSI, or evidence
presented during the sentencing hearing.” Id. (quotation omitted).
A court “may not speculate about the existence of a fact that would result in
a higher sentence . . . .” Barrington, 648 F.3d at 1197 (quotations omitted). In
these circumstances, the government must “establish those facts by a
preponderance of the evidence” and “support its loss calculation with reliable and
specific evidence.” Bradley, 644 F.3d at 1290 (quotation and alteration omitted).
If a loss exceeds $400,000, 14 levels are added to a defendant’s offense level.
U.S.S.G. § 2B1.1(b)(1)(H). “[L]oss is the greater of actual loss or intended loss.”
Id. § 2B1.1, comment. (n.3(A)). Intended loss includes “that pecuniary harm that
would have been impossible or unlikely to occur.” Id., comment. (n.3(A)(ii)).
Here, the court did not clearly err in its determination that a loss of over
$400,000 was attributable to Kalu based on the evidence at trial. First, evidence
presented at trial showed that an altered check in the amount of $83,625 was
deposited in a Bank of America account. Kalu was connected to the fraudulent
transfer as demonstrated by photographs depicting him withdrawing $5,500 and
$4,500 from the Bank of America account soon after the deposit. Next, evidence
showed that $287,000 from Cassel’s home equity credit line was deposited by wire
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transfer into a SunTrust bank account that had Kalu’s previous addresses
associated with it. Further, Sanon testified that Kalu gave her a check from the
SunTrust account to deposit in an account in the name of Stephanie L. Athea.
Photographic evidence later depicted Kalu withdrawing $1,000 from the account.
Third, evidence showed that $60,000 from Cassel’s credit line was deposited by
wire transfer into the same Bank of America account that Kalu had withdrawn
funds from earlier. The Bank of America account, after all of the fraudulent
deposits had been made, including the $83,625 check and the $60,000 wire
transfer, had an ending balance of $19.38. These 2 amounts total $143,625, the
amount the district court found was the total actual loss. The evidence at trial
showed that the SunTrust account, where the $287,000 was deposited on February
20, 2009, was frozen on April 7, after it was determined that the wire transfer was
fraudulent. Based on this evidence, it appears that Kalu could not access $287,000
because the account had been frozen. Thus, the $287,000 was not depleted from
the Suntrust account because Kalu’s fraud was discovered and that intended loss
of $287,000 was properly attributable to Kalu. Based on both the actual and
intended loss attributable to Kalu, the district court did not abuse its discretion in
its application of the 14-level enhancement to Kalu’s offense level.
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Criminal History Calculation
We review a district court’s interpretation of the Sentencing Guidelines de
novo. United States v. Maxwell, 579 F.3d 1282, 1305 (11th Cir. 2009). We also
review de novo its subject matter jurisdiction. United States v. Winingear, 422
F.3d 1241, 1245 (11th Cir. 2005). Courts calculate criminal history points by
evaluating each of the defendant’s prior convictions according to a variety of
factors, including the length of sentence imposed for each conviction. United
States v. Coast, 602 F.3d 1222, 1223 (11th Cir. 2010). In order to calculate
criminal history points, sentences for all felony offenses are counted, regardless of
the length of the sentence. U.S.S.G. § 4A1.2(c). Sentences for misdemeanor and
petty offenses are counted only if the sentence imposed for the commission of the
offense “was a term of probation of more than one year or a term of imprisonment
of at least thirty days,” or the prior offense was similar to, inter alia, “[d]riving
without a license or with a revoked or suspended license.” Id. § 4A1.2(c)(1)(A)-
(B); Coast, 602 F.3d at 1223. A defendant’s criminal history points are used to
calculate a defendant’s criminal history category. U.S.S.G. § 4A1.1.
A district court may grant a downward departure from a criminal history
category, “[i]f reliable information indicates that the defendant’s criminal history
category substantially over-represents the seriousness of the defendant’s criminal
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history or the likelihood that the defendant will commit other crimes . . . .”
U.S.S.G. § 4A1.3(b)(1). Our review of decisions regarding downward departures
is limited because we do not have jurisdiction under 18 U.S.C. § 3742(a) to
consider a defendant’s appeal of a district court’s discretionary decision to not
apply a downward departure. Winingear, 422 F.3d at 1245-46. This limited
review applies so long as the court did not incorrectly believe that it lacked the
authority to apply a departure. Id. “[W]hen nothing in the record indicates
otherwise, we assume the sentencing court understood it had authority to depart
downward.” United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006)
(quotation omitted). Thus, where the parties do not dispute that the district court
recognized its authority to depart downward, we will not review the decision
because we lack the jurisdiction to do so. Winingear, 422 F.3d at 1246.
The court properly assessed a criminal history point for Kalu’s felony
conviction for driving with a license suspended because all felonies, regardless of
the term of imprisonment, are counted for the purposes of calculating criminal
history points, pursuant to U.S.S.G. § 4A1.2(c). Further, we will not consider the
district court’s decision to deny Kalu’s request for a downward departure, pursuant
to U.S.S.G. § 4A1.3(b)(1), because we lack jurisdiction to review the court’s
decision where, as here, the record shows that it was aware of its authority to
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depart.
Upward Variance
We generally review the reasonableness of a sentence under a deferential
abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128
S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). The district court has wide discretion to
decide whether 18 U.S.C. § 3553(a) factors justify a variance. United States v.
Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010), cert. denied, 131 S.Ct. 2166(2011). “A district court’s sentence need not be the most appropriate one, it need
only be a reasonable one.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir.
2010) (en banc), cert. denied, 131 S.Ct. 1813 (2011). We will reverse only if “left
with the definite and firm conviction that the district court committed a clear error
of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the acts of the case.”
Rodriguez, 628 F.3d at 1264-65 (quotations omitted). The party challenging the
sentence has the burden of establishing that the sentence was unreasonable based
on the record and the factors set forth in 18 U.S.C. § 3553(a). United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). We will not presume that a sentence
outside of the guideline range is unreasonable. United States v. Mateos, 623 F.3d
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1350, 1366 (11th Cir. 2010), cert. denied, 131 S.Ct. 1540 (2011).
The district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the
public from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2).
In imposing a particular sentence, the court must also consider the nature and
circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable guideline range, the pertinent policy
statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. Id.§ 3553(a)(1), (3)-(7).
The level of discussion and detail a judge must give regarding his
consideration of the § 3553(a) factors is often up to his own professional
judgment, and a full opinion is not required in every case. Rita v. United States,
551 U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). The judge
must “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.” Id. It is sufficient that the district court considers the
defendant’s arguments at sentencing and states that it has taken the § 3553(a)
factors into account. United States v. Alfaro-Moncado, 607 F.3d 720, 735 (11th
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Cir. 2010), cert. denied, 131 S.Ct. 1604 (2011). However, where a district court
varies from the Guidelines, the court “must explain its conclusion that an
unusually lenient or an unusually harsh sentence is appropriate in a particular case
with sufficient justifications.” Mateos, 623 F.3d at 1366 (quotation omitted). A
major variance from the guideline range should be supported by a more significant
justification than a minor variance. Irey, 612 F.3d at 1186. Thus, the justification
for the variance must be “sufficiently compelling to support the degree of the
variance.” Id. (quotation omitted). Because economic and fraud-based crimes are
“more rational, cool, and calculated than sudden crimes of passion or opportunity,
these crimes are prime candidates for general deterrence.” United States v.
Martin, 455 F.3d 1227, 1240 (11th Cir. 2006) (quotations and alteration omitted).
Because the court considered the arguments Kalu made at sentencing,
considered the 18 U.S.C. § 3553(a) factors, and justified its decision to vary from
the Guidelines, we hold that the district court had a reasoned basis for exercising
its own legal decision-making authority and did not abuse its discretion in
imposing a total sentence of 168 months’ imprisonment. The court determined
that Kalu had committed this type of offense before and that he was a “con man.”
After it expressly stated that it had considered the § 3553(a) factors, it determined
that an above the guideline sentence was necessary to deter Kalu from committing
such an offense again, as well as necessary to protect the public from his conduct.
Because of the nature of Kalu’s criminal history, deterrence was a particularly
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appropriate factor to consider based on the calculated nature of his fraudulent
activities. Martin, 455 F.3d at 1240. Thus, Kalu failed to carry his burden to show
that his sentence was procedurally or substantively unreasonable.
Conclusion
Based upon the foregoing and our review of the record and the parties’
briefs, we affirm Kalu’s convictions and total sentence.
AFFIRMED.
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