United States v. Ojudun ( 2015 )

14-4144-cr
United States v. Davis
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
10th day of November, two thousand and fifteen.
Present:
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
CHRISTINA REISS,
District Judge.*
____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 14-4144-cr
OLUWOLE OJUDUN,
Defendant,
ANTHONY DAVIS,
Defendant–Appellant.
____________________________________________________
FOR APPELLANT: George R. Goltzer, Law Office of George Robert Goltzer, New
York, New York.
*
The Honorable Christina Reiss, Chief District Judge of the United States District Court for the District of Vermont,
sitting by designation.
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FOR APPELLEE: Daniel S. Noble, Diane Gujarati, Assistant United States
Attorneys, for Preet Bharara, United States Attorney for the
Southern District of New York, New York, New York.
____________________________________________________
Appeal from a judgment of the United States District Court for the Southern District of
New York (Forrest, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Anthony Davis was convicted pursuant to guilty pleas of bank fraud
conspiracy in violation of 18 U.S.C. § 1349 and possession of stolen mail in violation of 18
U.S.C. § 1708. The district court sentenced Davis to the following terms of imprisonment on
both counts: seven years and three years, respectively. On appeal, Davis argues that (1) the
district court’s intended loss calculation was “speculative[],” and (2) the district court abused its
discretion by imposing an above-Guidelines sentence. We assume the parties’ familiarity with
the underlying facts and the procedural history of the case.
I. The loss calculation
We “review the district court’s interpretation of the Guidelines de novo, and its findings
of fact relevant to the Guidelines application for clear error.” United States v. Broxmeyer, 699
F.3d 265, 281 (2d Cir. 2012). When calculating the proper offense level for a crime involving
altered or counterfeit instruments under the Guidelines, the district “court need only make a
reasonable estimate of the loss.” U.S.S.G. § 2B1.1, cmt. n.3(c); accord United States v. Carboni,
204 F.3d 39, 46 (2d Cir. 2000). The “loss” is the “greater of actual loss or intended loss.”
U.S.S.G. § 2B1.1, cmt. n.3(a).
Davis does not dispute that his pre-guilty plea intended loss figure was “approximately”
one million dollars. Nor does Davis dispute that his post-guilty plea intended loss figure was at
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least $4,460. What Davis contends is that the district court’s equating of “approximately one
million” with one “million even” was speculative. Davis does not point to any evidence that the
intended loss was less than one million dollars, however, and we decline to conclude that the
district court failed to “make a reasonable estimate of the loss.” U.S.S.G. § 2B1.1, cmt. n.3(c);
see also United States v. Norman, 776 F.3d 67, 79−80 (2d Cir. 2015) (holding that the district
court did not commit clear error by relying on the defendant’s representation of loss where there
was nothing in the record to support a finding that the loss was in fact less than that amount).
II. The upward variance
“[A]ppellate courts may not presume that every variance from the advisory Guidelines is
unreasonable.” Rita v. United States, 551 U.S. 338, 355 (2007). We must “take into account the
totality of the circumstances, including the extent of any variance from the Guidelines range.”
Gall v. United States, 552 U.S. 38, 51 (2007). In this Circuit, we apply an abuse of discretion
standard to substantive sentencing appeals. United States v. Rigas, 583 F.3d 108, 121 (2d Cir.
2009). And we evaluate whether an upward variance “represents an abuse of discretion based on
the reasons given by the district court when imposing the sentence.” United States v. Douglas,
713 F.3d 694, 700 (2d Cir. 2013) (citing United States v. Sindima, 488 F.3d 81, 85–86 (2d Cir.
2007)). The district court calculated a Guidelines range of 70–87 months, and imposed a 33
month upward variance from the top of that Guidelines range.
When the district court imposed the sentence in this case, she explained that the upward
variance was due to Davis’s continuation of his scheme after his cohorts were indicted and even
after he was arrested for his participation and had pled guilty. On this record there are
“‘sufficiently compelling’ reasons to support the deviation.” United States v. Aldeen, 792 F.3d
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247, 254 (2d Cir. 2015) (quoting United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en
banc)).
Defendant contends, briefly and for the first time on appeal, that the upward variance
imposed by the district court resulted in his receiving an unjustifiably disparate sentence when
compared to his codefendant Oluwole Ojudun. Ojudun, however, was not charged with or
convicted of possession of stolen mail. Nor did Ojudun abuse a position of public trust or
continue the scheme post-plea. The district court did not exceed the bounds of its discretion by
imposing disparate sentences under these circumstances.
We have considered all of Davis’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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