United States v. Osuagwu , 354 F. App'x 158 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 18, 2009
No. 08-20176
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
UZOMA OKECHUKWU OSUAGWU, also known as Nnanna Okereke, also
known as Bret Stanley,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-305-1
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Appellant Uzoma Okechukwu Osuagwu challenges his guilty plea and
175-month sentence for conspiracy to launder funds, unlawful procurement of
naturalization, and aiding and abetting aggravated identity theft. He contends
that (1) the factual basis for each of the three offenses was insufficient to support
his guilty plea; (2) the district court erred under Federal Rule of Criminal
Procedure 11 by failing to address him personally to determine whether there
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-20176
was an adequate factual basis; (3) the district court erred in determining the loss
amount; (4) the district court erred by failing to make adequate findings on the
concerning the loss amount; (5) the district court erred in finding that a
substantial portion of the fraudulent conduct occurred outside of the United
States; (6) the district court erred by finding that he was a leader or organizer
of the criminal activity; (7) the district court erred by finding that there were
more than 10 victims; (8) the district court failed to consider the sentencing
factors under 18 U.S.C. § 3553(a); and (9) his sentence was substantively
unreasonable. For the reasons that follow, the judgment of the district court is
affirmed.
Relying upon United States v. Santos, __ U.S. __, 128 S. Ct. 2020 (2008)
(plurality opinion), Osuagwu challenges the factual basis for his money
laundering conviction because it did not describe a financial transaction of the
profits from a criminal act. Although Santos was issued after the judgment was
rendered in Osuagwu’s case, we review the issue for plain error. See United
States v. Fernandez, 559 F.3d 303, 316 (5th Cir. 2009), cert. denied, 2009 WL
1615546 (Oct. 5, 2009) (No. 08-1517), and Marquez v. United States, 129 S. Ct.
2783 (2009). Because there was no consensus in Santos that the definition of
“proceeds” in § 1956(a)(1) should be profits with respect to any offense other than
operating an illegal lottery, any error by the district court was not clear or
obvious. See Fernandez, 559 F.3d at 315-16.
Osuagwu also asserts that the factual basis was insufficient for his
aggravated identity theft offense because the factual basis did not allege that he
knowingly used the name and social security number of a real person. Because
he raises the issue for the first time before this court, we review it for plain
error. See United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001). While
nothing in the record explicitly states that Osuagwu knew that the victim was
a real person, the evidence was sufficient for the district court to draw that
inference. See United States v. Hildenbrand, 527 F.3d 466, 475 (5th Cir.), cert.
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denied, 129 S. Ct. 437 (2008). For example, Osuagwu admitted in the factual
basis that he used the victim’s name and social security number without the
victim’s consent. We find no error by the district court.
Finally, Osuagwu challenges for the first time the factual basis for the
unlawful procurement of citizenship offense. To prove a violation of 18 U.S.C.
§ 1425(b), the Government was required to show, inter alia, that Osuagwu “knew
he was not entitled to naturalization and citizenship.” United States v. Moses,
94 F.3d 182, 187 (5th Cir. 1996). We review the forfeited issue for plain error.
See Marek, 238 F.3d at 315. The record showed that Osuagwu was convicted of
a felony federal mail fraud offense within five years of becoming a naturalized
citizen and that he concealed the conviction during the application process. He
thus fails to show that the district court committed a clear or obvious error. See
Hildenbrand, 527 F.3d at 475; Moses, 94 F.3d at 187.
Next Osuagwu asserts that his conviction on all three counts should be
reversed under Federal Rule of Criminal Procedure 11 because the district court
to failed to address him personally for the purpose of determining that there was
an adequate factual basis. The issue is reviewed for plain error because
Osuagwu did not object to the Rule 11 colloquy. United States v. Vonn, 535 U.S.
55, 59 (2002). We find no error, plain or otherwise, because Rule 11 does not
require the district court to address the defendant personally to determine
whether there is an adequate factual basis. See F ED. R. C RIM. P. 11(b)(3).
With respect to the sentence imposed, Osuagwu asserts that the district
court clearly erred in finding a loss amount that was not supported by a
preponderance of the evidence. He asserts for the first time on appeal that the
district court erred by relying on information in the Presentence Report (PSR)
and the accompanying Master Fraud List because there was no source provided
for certain information, other information was provided by co-conspirators, and
certain information was the product of unsworn allegations by an unidentified
agent. He further asserts that, after he objected to the PSR’s loss calculation,
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No. 08-20176
the Government was required to provide reliable and specific evidence
supporting its position.
The district court appropriately relied upon the PSR to find that the loss
amount was greater than $2,500,000, justifying an 18-level enhancement under
U.S.S.G. § 2B1.1(b)(1). While Osuagwu issued conclusory denials of several
factual assertions in the PSR, he failed to present competent rebuttal evidence.
See United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009); United States v.
Parker, 133 F.3d 322, 329. He fails to show that the district court plainly erred
by crediting information in the PSR provided by his co-conspirators. The
co-conspirators’ statements were corroborated by bank surveillance footage,
bank records, evidence seized from Osuagwu’s computer, his own admissions,
and the information provided by other co-conspirators. See United States v.
Rodriguez, 897 F.2d 1324, 1327-28 (5th Cir. 1990). His reliance on United States
v. Taylor to challenge information provided by the case agent is misplaced, as
Taylor involved a guarantee of “use immunity.” See 277 F.3d 721, 724-27 (5th
Cir. 2001).
Osuagwu also asserts that the district court failed to make adequate
findings in support of its loss determination. As with previous forfeited issues,
we review this issue for plain error. See United States v. Mondragon-Santiago,
564 F.3d at 357, 361 (5th Cir. 2009), cert. denied, 2009 WL 1849974 (Oct. 5,
2009) (No. 08-11099). Citing U.S.S.G. § 1B1.3, the district court found that
Osuagwu was accountable for the entire loss amount because the losses were
incurred as “part of a common scheme or plan.” Although the court’s
explanation was brief, it was a sufficient as a finding that the losses caused by
Osuagwu’s co-conspirators were within the scope of his agreement to participate
in the conspiracy. See § 1B1.3; United States v. Hammond, 201 F.3d 346, 351
(1999).
However, the district court’s comments cannot be interpreted as a finding
that the losses were foreseeable to Osuagwu. See Hammond, 201 F.3d at 351.
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No. 08-20176
The failure to make such a finding was error that was clear or obvious. See id.
at 351-52. Nevertheless, Osuagwu fails to show that the error affected his
substantial rights. The record shows that he was a leader or organizer of the
fraudulent scheme who recruited certain members of the conspiracy and directed
them to recruit others. He gave orders instructing his co-conspirators how and
when to withdraw the stolen funds; he or his girlfriend then deposited the funds
into their own accounts; and he funneled the stolen funds abroad. It was
foreseeable to Osuagwu that co-conspirators were being recruited and that many
sizeable fraudulent transfers were being made into their accounts. Accordingly,
Osuagwu fails to show that the district court committed plain error. See
Mondrago-Santiago, 564 F.3d at 364.
The Government asserts that the remainder of the sentencing issues are
barred by the appeal waiver in Osuagwu’s plea agreement. Osuagwu asserts
that the waiver was unknowing because the district court failed to inform him
of one of its three exceptions and to determine that he understood each of the
three exceptions. The district court asked Osuagwu whether he had read and
understood the plea agreement. The court and the prosecutor warned him that
he was waiving his right to appeal by entering the agreement, except in the
limited circumstances provided in the agreement. Because the record shows
that Osuagwu knew he had a right to appeal his sentence and that he was giving
up that right, we find that the waiver was knowing and voluntary. See United
States v. McKinney, 406 F.3d 744, 746 & n.2 (5th Cir. 2005).
In the alternative, Osuagwu asserts that the appeal waiver does not apply
because he expressly reserved the right to appeal an upward departure from the
correctly calculated guidelines range. Applying the normal rules of contract
interpretation to the waiver provision, see McKinney, 406 F.3d at 746, we reject
this argument. The plain language of the waiver exception does not apply to
Osuagwu’s sentence because the district court did not issue an upward
departure from the guidelines range. AFFIRMED.
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