United States v. Akinfe , 231 F. App'x 297 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4983
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ABAYOMI O. AKINFE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T.S. Ellis III, Senior
District Judge. (1:06-cr-00081-TSE)
Submitted: May 21, 2007 Decided: July 6, 2007
Before WILLIAMS, Chief Judge, and NIEMEYER and SHEDD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Robert C. Whitestone, WHITESTONE, BRENT, YOUNG & MERRIL, P.C.,
Fairfax, Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, John Eisinger, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Abayomi O. Akinfe of one count of
defrauding a financial institution, in violation of 18 U.S.C.
§ 1344, and three counts of aggravated identity theft, in violation
of 18 U.S.C. § 1028A(a)(1), in connection with the unknown and
unauthorized use of three individuals’ identities to open and use
fraudulent bank accounts. The district court sentenced Akinfe to
seventy months in prison. Akinfe timely appealed, and we affirm.
First, Akinfe argues that the district court should not
have permitted statements at trial that he made during a police
interrogation regarding his past unrelated purchases of social
security numbers and other identity information. We review
admission of evidence under Fed. R. Evid. 404(b) for abuse of
discretion. See United States v. Queen, 132 F.3d 991, 995 (4th
Cir. 1997). Evidence of prior bad acts is admissible under Rules
404(b) and 403 if the evidence is: (1) relevant to an issue other
than the general character of the defendant; (2) necessary; and
(3) reliable. The probative value of the evidence also must not be
substantially outweighed by its prejudicial effect. Queen, 132
F.3d at 997. We conclude that the district court properly admitted
evidence regarding Akinfe’s admission of his prior involvement with
the purchase of identification information and properly instructed
the jury as to the admissibility of the evidence.
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Next, Akinfe argues that the evidence was insufficient to
support his convictions for one count of defrauding a financial
institution under 18 U.S.C. § 1344 and three counts of aggravated
identity theft under 18 U.S.C. § 1028A. A defendant challenging
the sufficiency of the evidence faces a heavy burden. United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). “[A]n
appellate court’s reversal of a conviction on grounds of
insufficient evidence should be confined to cases where the
prosecution’s failure is clear.” United States v. Jones, 735 F.2d
785, 791 (4th Cir. 1984) (internal quotation marks omitted). “The
relevant question is not whether the appellate court is convinced
of guilt beyond a reasonable doubt, but rather whether, viewing the
evidence in the light most favorable to the government, any
rational trier of facts could have found the defendant guilty
beyond a reasonable doubt.” Id. (internal quotations and citations
omitted). We conclude that the evidence produced at trial, which
in part included Akinfe’s fingerprints on the accounts and his
image on camera accessing funds at an ATM, was sufficient to
demonstrate that Akinfe defrauded a bank and committed three counts
of aggravated identity theft.
Finally, Akinfe argues that, when sentencing him, the
district court should not have utilized its own calculation of
intended loss that resulted from his criminal activities after the
jury determined a lower amount of actual loss. Specifically,
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Akinfe argues that United States v. Booker, 543 U.S. 220 (2005),
dictates that he could only be sentenced according to an intended
amount of loss that he either agreed to or was determined by a jury
beyond a reasonable doubt. However, because Akinfe was sentenced
after Booker, we conclude that the district court was permitted to
independently determine the amount of intended loss. See United
States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006)
Based on the foregoing, we affirm Akinfe’s convictions
and sentence. 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.
AFFIRMED
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