United States v. Okolo , 82 F. App'x 834 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4402
NNAMDI JUDE OKOLO,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-01-414-AW)
Submitted: November 21, 2003
Decided: December 16, 2003
Before WILKINSON and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
V. Peter Markuski, Jr., LAW OFFICES OF GOOZMAN, BERN-
STEIN & MARKUSKI, Laurel, Maryland, for Appellant. Thomas M.
DiBiagio, United States Attorney, Bryan E. Foreman, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
2 UNITED STATES v. OKOLO
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Nnamdi Okolo appeals from the eighty-seven-month sentence
imposed by the district court following his convictions for one count
of bank fraud in violation of 18 U.S.C. § 1344 (2000), and three
counts of making false statements on loan applications in violation of
18 U.S.C.A. § 1014 (West Supp. 2003). He contends that the sentenc-
ing court erred in increasing his offense level by ten based on its
determination of the amount of loss and erred in enhancing his sen-
tence based on a finding that he used sophisticated means in the com-
mission of the offense. Upon consideration of the issues and
arguments raised, we vacate Okolo’s sentence and remand for resen-
tencing.
The evidence showed that Okolo, his wife, and Grace Obebe
started a luxury car rental business. They purchased ten vehicles in
the name of Grace Obebe or Sonya Worthy-Okolo. Each of the loan
applications used to obtain financing for the vehicles contained false
information about the purchaser’s salary from the car rental business.
Evidence was presented that Okolo negotiated the purchase prices for
the vehicles and directed his wife in the day-to-day operations of the
business. Okolo completed the salary information on one of the credit
applications submitted by his wife for the purchase of a vehicle.
In sentencing Okolo, the district court determined that the amount
of loss attributable to the offenses was $645,297.45, the total of the
full loan amounts for the ten vehicles. Okolo argues that the district
court erred in determining the amount of loss without deducting an
amount for the value of the vehicle which secured the loans. We agree
and therefore vacate Okolo’s sentence.
The Sentencing Guidelines provide for a base offense level of six
for crimes involving fraud or deceit and then set forth a schedule for
UNITED STATES v. OKOLO 3
incrementally increasing the offense level according to the amount of
loss suffered as a result of the fraud. U.S. Sentencing Guidelines Man-
ual § 2F1.1 (1998). "Loss" under § 2F1.1(b)(1) is the actual, probable,
or intended loss to the victim. See United States v. Parsons, 109 F.3d
1002, 1004 (4th Cir. 1997). Courts are permitted to use the intended
loss to the victim if that amount is greater than the actual loss. USSG
§ 2F1.1, comment. (n.8).
Application Note 8(b) states, "if a defendant fraudulently obtains
a loan by misrepresenting the value of his assets, the loss is the
amount of the loan not repaid at the time the offense is discovered,
reduced by the amount the lending institution has recovered (or can
expect to recover) from any assets pledged to secure the loan." USSG
§ 2F1.1, comment. (n.8(b)). Here, because there was no evidence that
Okolo attempted to conceal or hide the collateral, the banks could rea-
sonably expect to recover the value of the vehicles securing the loans.
See id. We therefore find that the value of the vehicles should have
been deducted from the unpaid balances of the loans to determine the
amount of the loss. Id.; see United States v. Baum, 974 F.2d 496, 498
(4th Cir. 1992) (reversing district court’s determination that amount
of loss was equal to face amount of fraudulently obtained loan and
requiring that "value of the security interest should be deducted from
the amount of the loan in determining ‘loss’" and payments on loans
"should also be considered"); see also United States v. Williams, 292
F.3d 681, 686 (10th Cir. 2002) (upholding use of full amount of car
loan as intended loss where defendant attempted to conceal the vehi-
cle, but reversing use of full value of loan for tools where "there is
no evidence that Mr. Williams intended to conceal the tools"); United
States v. Nichols, 229 F.3d 975, 979 (10th Cir. 2000) (finding deter-
mination of loss as full amount of loan "clearly erroneous" where loan
secured by collateral and there was no evidence "that the Defendant
intended to permanently deprive the creditor of the collateral through
concealment").
The district court found that there was concealment and referred to
the concealment of the fact that the salary information on the credit
applications was false. The district court also found that Okolo’s
fraudulent representations resulted in "the impairment of the [lend-
ers’] security interest."
4 UNITED STATES v. OKOLO
However, it is the concealment or destruction of the collateral
which would impair the lender’s security interest, and thus allow the
court to use the face amount of the loan to determine loss. The con-
cealment relied upon by the district court is concealment of the
offense itself, not of the collateral.
Moreover, the district court’s conclusion that the lenders’ security
interests were impaired is not supported by the record. Rather, the
evidence shows that the vehicles were not damaged and they were
openly displayed at the business’ rental car lot. Additionally, as the
probation officer noted in the presentence report, all of the vehicles
were returned to the lenders, and there was no actual loss. Contrary
to the sentencing court’s conclusion, the security interests were not
impaired. Therefore, we find that the value of the collateral should
have been deducted from the loan balances to determine loss to the
lenders. See USSG § 2F1.1, comment. (n.8(b)); Baum, 974 F.2d at
498.
Okolo also challenges the district court’s imposition of a two-level
enhancement based on its determination that he used sophisticated
means in the commission of the offenses. USSG § 2F1.1(b)(6)(C).
The court based its ruling on the pay stub submitted to National City
Bank along with a credit application. The false pay stub bore the logo
of ADP and was formatted in the same manner as those generated by
ADP. Further, a representative for ADP testified at Okolo’s trial as to
the similarity between that pay stub and ones generated by ADP. She
also testified that the pay stub submitted to National City Bank con-
tained information that did not originate from ADP’s computer pay-
roll system. The false pay stub also listed amounts purportedly
withheld for taxes and for dental and vision insurance, and reflected
year-to-date amounts for earnings and withholdings.
Arguing in favor of the enhancement, the government asserted that
Okolo did not merely make a false pay stub or type over a pay stub.
Rather, in order to have the ADP logo on the document and to have
some actual ADP codes, Okolo apparently scanned a pay stub into the
computer, reformatted it, changed the amounts for salary, deductions,
and withholdings, and then printed it. The government asserts that
Okolo "had to go through the painstaking attempt to figure out" the
income tax deductions for inclusion on the false pay stub, and com-
UNITED STATES v. OKOLO 5
puting the year-to-date amounts as of May 31, 2000, for income taxes
withheld, as well as dental and vision plan payments.
Okolo contends that there was nothing unusual, complex, or intri-
cate about the documents used to obtain the loans; rather, he asserts
that the documents submitted were typical for the offense charged.
Okolo asserts that there was only one pay stub submitted, and that the
pay stub contradicts an employment verification letter that was sub-
mitted with the same loan application. Okolo contends that this lack
of attention to detail cuts against a finding of sophistication.
Resolving the issue, the court found that the enhancement should
apply. The court reasoned: "the defendant not only caused to be sub-
mitted false documents, false representations, but he provided back-
up documentation by way of the pay stubs and the symbols and codes
that bore the ADP symbol. That is sophistication." This is a factual
determination that will be reversed only upon clear error. United
States v. Rothberg, 954 F.2d 217, 219 (4th Cir. 1992); United States
v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989). We find that the dis-
trict court’s conclusion is supported by the record, and thus applica-
tion of the two-level increase for sophisticated means does not
amount to clear error. See Daughtrey, 874 F.2d at 217; Anderson v.
Bessemer City, 470 U.S. 564, 573 (1985) (stating that court can over-
turn for clear error only if, "on the entire evidence," the court is "left
with the definite and firm conviction that a mistake has been commit-
ted").
Accordingly, we affirm the district court’s enhancement based on
the use of sophisticated means, but vacate Okolo’s sentence and
remand for resentencing upon further consideration of the amount of
the loss. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
VACATED AND REMANDED