United States v. Nelson Adibe ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3814
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UNITED STATES OF AMERICA
v.
NELSON A. ADIBE,
Appellant
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On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 08-cr-00042)
District Judge: Honorable Leonard P. Stark
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Submitted Under Third Circuit LAR 34.1(a)
June 20, 2011
Before: HARDIMAN and ALDISERT, Circuit Judges
and RESTANI * Judge.
(Filed: June 22, 2011)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
*
The Honorable Jane A. Restani, Judge of the United States Court of International
Trade, sitting by designation.
Nelson Adibe appeals the District Court’s judgment of sentence. We will affirm.
I
Because we write for the parties, we recount only the essential facts and procedural
history.
Adibe is a native of Nigeria who emigrated to the United States in 1996. From
2006 to 2008, he engaged in a series of fraudulent transactions, whereby he used the
social security numbers, names, and birthdates of at least six individuals to open fake
checking accounts at numerous Citizens Bank locations. After the accounts were opened,
Adibe deposited checks backed by insufficient funds into the accounts and then withdrew
these funds before the checks bounced. Adibe opened fraudulent bank accounts in five
different states—Pennsylvania, Delaware, Ohio, Massachusetts and New York—and
withdrew a total of $234,880.
On March 13, 2008, Adibe was indicted by a grand jury in the District of Delaware
and charged with three counts of bank fraud, 18 U.S.C. §§ 1344 & 2 (counts one, two and
three), one count of aggravated identity theft, 18 U.S.C. § 1028A (count four), one count
of misuse of a social security number, 42 U.S.C. § 408(a)(7)(B) (count five), and one
count of identity theft, 18 U.S.C. § 1028(a)(7) (count six). On the day scheduled for trial,
Adibe pleaded guilty to counts one, two, three, and five, but opted for a bench trial on the
remaining counts. At trial, Adibe testified that he did not know that the information he
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used to open the accounts belonged to real people. See United States v. Flores-Figueroa,
129 S. Ct. 1886, 1894 (2009) (requiring knowledge that identification material belonged
to a real person to support conviction under 18 U.S.C. § 1028A). The District Court was
unpersuaded, finding that Adibe’s testimony “was in direct conflict with the version of
those events presented by otherwise credible witness testimony and evidence.” United
States v. Adibe, No. 08-42, at *12 (D. Del. March 31, 2010). Accordingly, Adibe was
adjudged guilty of counts four and six.
At sentencing, Adibe sought a two-point reduction in his offense level for
acceptance of responsibility pursuant to § 3E1.1(a) of the United States Sentencing
Guidelines (USSG). Although Adibe had pleaded guilty to four of the six offenses with
which he was charged, the Court nevertheless held that Adibe had “put the government to
a substantial burden of proof” on counts four and six and, therefore, had not adequately
accepted responsibility for his actions. Transcript of Sentencing Hearing at 47, Adibe,
No. 08-42 (D. Del. August 24, 2010).
For its part, the Government requested a two-point increase in Adibe’s offense
level pursuant to USSG § 2B1.1(b)(9)(A). The District Court granted this enhancement,
finding that Adibe relocated his fraudulent scheme from one jurisdiction to another in
order to evade law enforcement. Id. at 48. The Court sentenced Adibe to a within-
Guidelines sentence of 37 months imprisonment on counts one, two, three, five, and six,
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and a consecutive mandatory minimum sentence of 24 months on count four.
This timely appeal followed. 1
II
A
Adibe claims the District Court clearly erred in finding that he had not accepted
responsibility for his actions.
When a defendant pleads guilty to some charges but proceeds to trial on others, the
sentencing judge “has the obligation to assess the totality of the situation in determining
whether the defendant accepted responsibility.” United States v. Cohen, 171 F.3d 796,
806 (3d Cir. 1999) (quoting United States v. McDowell, 888 F.2d 285, 293 (3d Cir.
1989)). While we review the District Court’s factual findings for clear error and legal
conclusions de novo, we are especially deferential to the Court’s assessment of whether
Adibe accepted responsibility for his actions. USSG § 3E1.1 cmt. n.5 (“The sentencing
judge is in a unique position to evaluate the defendant’s acceptance of responsibility.”);
see also United States v. Dullum, 560 F.3d 133, 142 (3d Cir. 2009).
The District Court held that a two-level reduction for acceptance of responsibility
was not warranted because Adibe contested “an essential factual element” of his crime—
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291.
4
namely, that he did not know that the identification materials he used to open the
fraudulent bank accounts belonged to real individuals. 2 Transcript of Sentencing Hearing
at 47, Adibe, No. 08-42 (D. Del. August 24, 2010). We find no error in the District
Court’s conclusion that the misuse of real individuals’ personal information was central to
the scheme because Adibe compiled social security numbers, birthdates, employee
identification cards, and lease agreements to verify his victims’ creditworthiness and dupe
bank employees into believing that he was the person named in the documents. Nor do
we find error in the District Court’s conclusion that Adibe “put the government to a
substantial burden of proof,” id., by forcing it to prepare 111 trial exhibits, interview three
government witnesses, engage in pre-trial practice, and draft several post-trial motions in
its attempt to show, beyond a reasonable doubt, that Adibe knew that he was using real
identification materials. 3
For these reasons, the District Court did not err in denying Adibe’s request for a
2
Both counts four and six required the Government to prove that Adibe
“knowingly used, without lawful authority, a means of identification of another person.”
See 18 U.S.C. §§1028(a)(7), 1028A.
3
Adibe argues that his decision to go to trial on count four should not affect his
Guidelines range for the remaining five counts, because count four carries with it a
consecutive mandatory minimum sentence of 24 months. See United States v. Williams,
344 F.3d 365, 381 (3d Cir. 2003) (holding that where a district court does not group a
defendant’s charges, it may grant a sentence reduction as to all counts to which the
defendant pleaded guilty). Because count six may be grouped with counts one, two,
three, and five, however, the District Court did not err in considering Adibe’s failure to
plead guilty to identity theft in determining Adibe’s overall Guidelines range.
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two-level reduction under USSG § 3E1.1(a).
B
Adibe also claims the District Court clearly erred in applying a two-level
enhancement for “evading law enforcement.”
USSG § 2B1.1(b)(9)(A) provides for a two-level increase if “the defendant
relocated, or participated in relocating, a fraudulent scheme to another jurisdiction to
evade law enforcement or regulatory officials.” For this enhancement to apply to Adibe,
he must have: (1) relocated a fraudulent scheme from one jurisdiction to another, and (2)
done so to evade enforcement officials. Id.
The first of these prongs is not in question here. Adibe admits to opening
fraudulent bank accounts in five different states. Thus, the only question is whether
Adibe’s conduct was undertaken with the intent to evade law enforcement. As the
District Court noted, had Adibe gone “to branches within the same jurisdiction
repeatedly, . . . the likelihood of him being caught sooner would have increased
substantially.” Transcript of Sentencing Hearing at 47, Adibe, No. 08-42 (D. Del. August
24, 2010). Although there may have been other reasons why Adibe operated in five
states—e.g., his suggestion that he did so to find “fertile ground” for his crimes—the
District Court did not err in concluding that the circumstances evinced a purpose to evade
law enforcement. Accordingly, the District Court did not err when it increased Adibe’s
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offense by two levels pursuant to USSG § 2B1.1(b)(9)(A). 4
III
For the foregoing reasons, we will affirm the District Court’s judgment of
sentence.
4
Adibe also argues that the enhancement should not apply, because he
“participated in a scheme originated by his co-conspirator.” We disagree because
“[s]ection 2B1.1(b)(9)(A) requires only that the defendant participated in relocating the
scheme; he did not have to be the ‘driving force’ behind the relocation for the
enhancement to apply.” United States v. Paredes, 461 F.3d 1190, 1193 (10th Cir. 2006).
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