United States v. Tom Emasealu ( 2019 )

Case: 17-20387 Document: 00515155961 Page: 1 Date Filed: 10/11/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-20387
FILED
October 11, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TOM INEZE EMASEALU,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-268-1
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Tom Ineze Emasealu appeals certain restitution orders imposed under
the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A, in the final
judgment entered on his guilty plea convictions for conspiring to commit access
device fraud, 18 U.S.C. §§ 371, 1029(a)(2), (b)(2); possessing 15 or more
unauthorized access devices, 18 U.S.C. § 1029(a)(3); using and trafficking in
unauthorized access devices (11 counts), § 1029(a)(2); committing aggravated
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-20387 Document: 00515155961 Page: 2 Date Filed: 10/11/2019
No. 17-20387
identity theft (7 counts), 18 U.S.C. § 1028A; and committing wire fraud,
18 U.S.C. § 1343. We modify the judgment and affirm it as modified.
Pretermitting determination of the standard of review applicable to it,
we reject Emasealu’s claim that an order of restitution to Amy and Joe Mikesell
for credit monitoring costs incurred after the temporal scope of the crimes of
conviction is illegal. See United States v. Rodriguez, 523 F.3d 519, 525 (5th
Cir. 2008). Only when a fraudulent scheme is not an element of the conviction
is the court prohibited from awarding restitution for compensable “losses
caused by conduct that falls outside the temporal scope of the acts of
conviction.” United States v. Mathew, 916 F.3d 510, 516 (5th Cir. 2010)
(internal quotation marks and citation omitted). Thus, Emasealu fails to show
any error at all in connection with this claim. See United States v. Teuschler,
689 F.3d 397, 400 (5th Cir. 2012). But we agree with the parties that an order
of restitution to the Mikesells in the amount of $84.75 for credit monitoring
before Emasealu committed his fraudulent schemes was erroneous and not
harmless. See United States v. Westbrooks, 858 F.3d 317, 327 (5th Cir. 2017).
Additionally, we reject Emasealu’s claim that the judgment improperly
includes certain restitution amounts because they were not supported by
documentation. Emasealu failed to demonstrate that any part of his sentence
was illegal. If a restitution order is legal, the propriety of a particular
restitution amount is ordinarily reviewed for abuse of discretion. United States
v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). But Emasealu’s failure to raise a
no-documentation objection to the restitution amounts in the district court
relegates this claim to plain error review. See id. Emasealu cannot meet that
standard because he fails to show any error at all. See Teuschler, 689 F.3d at
400.
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Case: 17-20387 Document: 00515155961 Page: 3 Date Filed: 10/11/2019
No. 17-20387
The district court relied on and adopted the presentence report (PSR)
and its addenda; those documents included the sworn victim statements
underlying the restitution awarded. Ordinarily, “a PSR bears sufficient indicia
of reliability to permit the sentencing court to rely on it at sentencing. The
defendant bears the burden of demonstrating that the PSR is inaccurate; in
the absence of rebuttal evidence, the sentencing court may properly rely on the
PSR and adopt it.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995)
(internal quotation marks and citation omitted); see Ollison, 555 F.3d at 164.
Emasealu offered no evidence to rebut the PSR’s recommendation of these
claims; consequently, his contentions about a lack of documentation are
unavailing. See Teuschler, 689 F.3d at 400; Ollison, 555 F.3d at 164.
We modify the judgment to reduce the restitution ordered to be paid to
the Mikesells by $84.75. See 28 U.S.C. § 2106.
AFFIRMED AS MODIFIED.
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