United States v. Abiodun Bakre ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 18-1625
____________
UNITED STATES OF AMERICA
v.
ABIODUN BAKRE,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 1-14-cr-00012-003)
District Judge: Honorable David S. Cercone
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 1, 2019
Before: RESTREPO, ROTH and FISHER, Circuit Judges.
(Filed: October 10, 2019)
____________
OPINION*
____________
FISHER, Circuit Judge.
Abiodun Bakre appeals his sentence, arguing that the District Court failed to
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
adequately consider his personal history and characteristics. Because we conclude that
the District Court’s sentence was procedurally sound, we will affirm.
I.
Between 2010 and 2014, Bakre participated in a massive identity fraud scheme
involving over 11,000 individuals’ identities and an attempted loss of over $69 million.
His role in the scheme was to create and manage bank accounts into which the
fraudulently acquired money could be deposited. He was charged with one count of
conspiracy to commit wire fraud1 and eight counts of aggravated identity theft.2 He
pleaded guilty to all nine counts.
At sentencing, Bakre argued for a downward variance, justified by evidence of his
personal history as a good father and employee and his limited involvement compared to
his coconspirators. He requested a sentence of forty-eight months—time served—while
the Government sought a sentence within the U.S. Sentencing Guidelines range.
At the sentencing hearing, the District Court noted how serious the offense was—
it was the “greatest intended loss case” that the sentencing judge had ever seen in over
thirty years on the bench3—and the pressing need for deterrence and respect for the law
as required by 18 U.S.C. § 3553(a). The court found “no mitigating nor aggravating
1
18 U.S.C. § 1349.
2
18 U.S.C. § 1028(a)(1).
3
Ohio App. 107.
2
factors that would justify a variation or deviation from the Guidelines in this case.”4 It
followed the lower end of the Guidelines range, sentencing Bakre to sixty-three months
for conspiracy to commit wire fraud and a twenty-four-month sentence at each
aggravated identity theft count, to be served concurrently with each other and
consecutively to the wire fraud sentence. Bakre appeals.
II.
The District Court had jurisdiction to sentence Bakre for his offenses against the
laws of the United States,5 and we have jurisdiction to review that sentence.6 We review
the District Court’s sentencing procedure for abuse of discretion.7 However, because
Bakre’s sentencing error claim was not preserved, it is reviewed for plain error.8 We
reverse only if any error is plain and affects both substantial rights and the fairness or
integrity of the proceedings.9
III.
Bakre argues that the District Court’s sentence was procedurally unreasonable.
When reviewing for procedural error, we examine whether the court correctly calculated
a defendant’s Guidelines range, ruled on motions for departure from the Guidelines, and
4
Ohio App. 109.
5
18 U.S.C. § 3231.
6
Id. § 3742.
7
United States v. Vazquez-Lebron, 582 F.3d 443, 445 (3d Cir. 2009).
8
Puckett v. United States, 556 U.S. 129, 133, 134–35 (2009).
9
United States v. Wilson, 880 F.3d 80, 88 (3d Cir. 2018).
3
considered the sentencing factors outlined in § 3553(a).10 A sentence is procedurally
reasonable if “the record as a whole reflects rational and meaningful consideration of the
[§ 3553(a)] factors.”11
Bakre’s sole claim of procedural error is that the District Court failed to
meaningfully consider his history and characteristics as required by § 3553(a)(1). We
afford great deference to the District Court because it “is in a superior position to find
facts and judge their import under § 3553(a) in the individual case” and to “gain[]
insights not conveyed by the record.”12 We do not require the District Court to speak
directly to each § 3553(a) factor because “th[e] statute does not contain such an ‘explicit’
explanation requirement.” 13 The court instead “has the discretion to determine the extent
to which each factor merits discussion.”14 It need only provide “some indication in the
record” that it considered Bakre’s arguments for a shorter sentence.15
Bakre correctly notes that, at the sentencing hearing, the District Court mostly
spoke of the nature of the offense and the need for deterrence and never explicitly
10
United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).
11
United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007).
12
United States v. Tomko, 562 F.3d 558, 561 (3d Cir. 2009) (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)).
13
United States v. Quiles, 618 F.3d 383, 397 (3d Cir. 2010).
14
United States v. Kluger, 722 F.3d 549, 568 (3d Cir. 2013).
15
United States v. Merced, 603 F.3d 203, 224 (3d Cir. 2010); see also United
States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (“[T]he court is not required to
discuss and make findings as to each of the § 3553(a) factors ‘if the record makes clear
the court took the factors into account in sentencing.’” (quoting United States v. Cooper,
437 F.3d 324, 329 (3d Cir. 2006))).
4
mentioned its consideration of Bakre’s history and characteristics. He argues that the
court did not address the “theme threaded throughout all of [his] evidence” at sentencing,
that he was not a “mere fraudster” but instead a “decent, hardworking, caring and kind
person who made a terrible mistake.”16
However, the District Court sufficiently considered Bakre’s history and
characteristics. The court referred to the fact that Bakre is a father, stating that the
negative impact of Bakre’s criminal activity on his children was “almost an aggravating
circumstance.”17 It bookended its explicit discussion of the seriousness of the offense,
respect for the law, and deterrence with statements confirming that it considered the
§ 3553(a) factors. And it concluded that, “upon thorough review,” it found “no mitigating
nor aggravating factors that would justify deviation from the [G]uidelines in this case.”18
In total, the record reflects the requisite “rational and meaningful consideration” of the
§ 3553(a) factors, and the District Court committed no procedural error.
Because the District Court committed no error, we need not consider whether any
alleged error would meet the plain-error standard.19
IV.
For the reasons set forth above, we will affirm the District Court’s sentence.
16
Appellant’s Br. 17.
17
Ohio App. 106.
18
Ohio App. 107–09.
19
See United States v. Lloyd, 469 F.3d 319, 325−26 (3d Cir. 2006) (finding no
error in court’s consideration of § 3553 factors and concluding analysis).
5