United States v. Robert Otiso , 460 F. App'x 270 ( 2012 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-5031
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    ROBERT M. OTISO, a/k/a Robe,
    Defendant - Appellant.
    Appeal from the United States District Court for the Southern
    District of West Virginia, at Charleston.  John T. Copenhaver,
    Jr., District Judge. (2:09-cr-00251-2)
    Submitted:   December 22, 2011               Decided:   January 5, 2012
    Before NIEMEYER and     GREGORY,   Circuit    Judges,   and   HAMILTON,
    Senior Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Carl E. Hostler, PRIM LAW FIRM, PLLC, Hurricane, West Virginia,
    for Appellant.    R. Booth Goodwin II, United States Attorney,
    Susan M. Robinson, Assistant United States Attorney, Charleston,
    West Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Robert M. Otiso appeals his conviction and seventy-
    two-month     sentence       after      pleading          guilty      without     a     plea
    agreement to one count of conspiracy to commit mail and wire
    fraud, in violation of 
    18 U.S.C.A. § 1349
     (West 2000 & Supp.
    2011).      Otiso    challenges         his       sentence      on    several    grounds,
    including asserting that the district court erred when it:                               (1)
    calculated the loss amount with which he should be attributed;
    (2)   increased     his     offense     level       and    refused      to    reduce     the
    offense    level    based    on   his    role       in    the    conspiracy;     and    (3)
    imposed a substantively unreasonable sentence upon him.                           Finding
    no error, we affirm.
    This    court    reviews      a       district      court’s      sentence    for
    reasonableness under an abuse-of-discretion standard.                             Gall v.
    United States, 
    552 U.S. 38
    , 51 (2007).                       The first step in this
    review requires the court to assess procedural reasonableness by
    ensuring    that    the     district      court          committed     no     significant
    procedural errors, such as improperly calculating the Guidelines
    range or failing to consider the 
    18 U.S.C.A. § 3553
    (a) (West
    2000 & Supp. 2011) factors.             United States v. Boulware, 
    604 F.3d 832
    , 837-38 (4th Cir. 2010).              The court must then consider the
    substantive reasonableness of the sentence imposed, taking into
    account the totality of the circumstances.                           Gall, 
    552 U.S. at 51
    .    A sentence within a properly calculated Guidelines range
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    will be presumed reasonable.                 United States v. Allen, 
    491 F.3d 178
    , 193 (4th Cir. 2007).
    Otiso challenges the procedural reasonableness of his
    sentence.       In particular, Otiso asserts that the district court
    erred when it calculated the amount of loss with which he should
    be attributed because he asserts that only a portion of the loss
    was foreseeable to him.              According to Otiso, although he knew
    there    were    other       fraudulent      accounts,      he    claims    he     had    no
    control     over      them    “nor     any     knowledge     of    any     money      being
    contained in the accounts.”              Factual determinations underlying a
    district court’s loss calculations are reviewed for clear error.
    United States v. Miller, 
    316 F.3d 495
    , 503 (4th Cir. 2003).
    This deferential standard of review requires reversal only if
    this court is "left with the definite and firm conviction that a
    mistake has been committed."                 United States v. Stevenson, 
    396 F.3d 538
    ,    542    (4th   Cir.     2005)     (quoting    Anderson      v.    Bessemer
    City, 
    470 U.S. 564
    , 573 (1985)).                   We have reviewed the record
    and conclude that the district court did not clearly err in
    attributing $3,379,069.43 of intended loss to Otiso.
    Otiso also asserts that the district court erred when
    it     increased      his     offense     level     two     levels    based      on      his
    leadership role in the conspiracy, and denied his request for a
    two-point reduction based on his allegedly minor role in the
    conspiracy.           According   to    Otiso,     his    co-conspirator         was     the
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    conduit for the conspiracy’s masterminds and he exercised no
    control over the conspiracy.                 We review whether the district
    court correctly increased Otiso’s offense level based on his
    aggravating      role   in   the     conspiracy      for     clear      error.    United
    States v. Cabrera-Beltran, 
    660 F.3d 742
    , 756 (4th Cir. 2011).
    A defendant qualifies for a two-level enhancement if
    he   was   “an    organizer,      leader,       manager,     or   supervisor      in   any
    criminal activity.”          U.S. Sentencing Guidelines Manual (“USSG”)
    § 3B1.1(c)       (2009).     In      determining        a    defendant’s     leadership
    role, “a district court should consider whether the defendant
    exercised decision making authority for the venture, whether he
    recruited others to participate in the crime, whether he took
    part in planning or organizing the offense, and the degree of
    control and authority that he exercised over others.”                             United
    States     v.    Rashwan,      
    328 F.3d 160
    ,       166   (4th     Cir.   2003).
    “Leadership over only one other participant is sufficient as
    long as there is some control exercised.”                         
    Id.
         We find that
    Otiso’s involvement in the conspiracy warranted application of
    the two-level enhancement under USSG § 3B1.1(c).                            See, e.g.,
    United States v. Kincaid, 
    964 F.2d 325
    , 329 (4th Cir. 1992)
    (upholding       district      court’s          § 3B1.1(c)        enhancement      where
    defendant gave another co-conspirator instructions about selling
    narcotics).
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    Because      Otiso’s     sentence       is     within    the     Guidelines
    range calculated at sentencing, his sentence is entitled to the
    presumption of reasonableness.                     Allen, 
    491 F.3d at 193
    .                 In an
    apparent       attempt      to   rebut       this    presumption,       however,           Otiso
    asserts that his sentence is unreasonable because it is greater
    than     his        co-conspirators’          sentences.             Because         the     co-
    conspirators either played lesser roles in the conspiracy, did
    not participate in the fraud itself, had no Kenyan contacts, did
    not    open    the    fraudulent      bank     accounts,        or   immediately           began
    cooperating          with    law    enforcement         and      benefitted           from     a
    substantial assistance motion, we find that the district court
    had legitimate reasons for imposing a greater sentence on Otiso.
    Thus,    any    disparity        between     Otiso’s     and    his    co-conspirators’
    sentences does not render Otiso’s sentence unreasonable.                                     See
    United    States       v.   Hall,     
    977 F.2d 861
    ,    864     (4th    Cir.        1992)
    (recognizing that disparities in sentences among co-defendants
    may    occur    for    a    variety     of    reasons,        including       more    lenient
    sentences due to substantial assistance motions and lesser roles
    in the crimes for which some are convicted).
    We    have   considered        Otiso’s       remaining     arguments          and
    find    them    to    be    without   merit.          Accordingly,        we    affirm       the
    district       court’s      judgment.         We     dispense    with     oral       argument
    because the facts and legal contentions are adequately presented
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    in the materials before the court and argument would not aid the
    decisional process.
    AFFIRMED
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