United States v. Asemota ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10729
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSARO DARLINGTON ASEMOTA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:93-CR-349-G)
October 2, 1996
Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Osaro Darlington Asemota was convicted on
pleas of guilty to multiple counts comprising conspiracy to commit
fraudulent use of a social security number, fraudulent use of a
social security number, aiding and abetting mail fraud, and failure
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
to appear. Asemota appeals the sentence imposed by the district
court, alleging an error resulting from “double counting” intended
loss and actual loss. Asemota also filed a motion for permission
to file a supplemental brief. Finding ambiguity, and therefore
potential error, in the use of intended and actual losses in
calculating Asemota’s sentence under the guidelines, we vacate his
sentence and remand for resentencing. We also deny his motion to
file a supplemental brief.
I
FACTS AND PROCEEDINGS
After Asemota pleaded guilty to the counts noted above, the
district court sentenced Asemota to 40 months’ imprisonment on each
of the fraud counts, to run concurrently, and six months’
imprisonment on the failure-to-appear count, to run consecutively
to his sentences on the fraud counts. Following sentencing,
Asemota instructed his second appointed counsel to file an appeal,
but counsel failed to do so. Asemota then filed a pro se notice of
appeal out of time. We remanded the case to the district court for
a determination of excusable neglect. The court held an
evidentiary hearing, after which the magistrate judge determined
that Asemota had shown excusable neglect for the late filing of his
notice of appeal.
Asemota next filed a motion to dismiss counsel and for
appointment of new counsel for his direct criminal appeal, arguing
that then-current counsel had demonstrated a conflict of interest
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based on his opinion that Asemota's appeal had no merit. Counsel
responded by submitting an "Agreed Motion to Withdraw as Counsel"
and to permit Asemota to proceed pro se. A judge of this court
denied the motions and instructed the parties to proceed in
accordance with Anders if counsel was still of the opinion that the
appeal was frivolous. In response, counsel filed a motion to
withdraw, together with an Anders brief. After Asemota responded
to the motion, we denied counsel’s motion to withdraw and
instructed the parties to brief the issue raised by Asemota, i.e.,
whether the district court erred in its loss calculation.
II
ANALYSIS
A. Loss Calculation
Under U.S.S.G. § 2F1.1(b)(1)(I), the probation officer
increased Asemota’s base offense level eight points based on a loss
calculation of $234,773.35. Without specifically addressing
Asemota’s objections to the PSR, the district court adopted this
calculation as its fact finding regarding the loss attributable to
Asemota’s actions. The resulting sentencing range was 37 to 46
months. The district court expressly chose the highest possible
sentence in the guideline range due to the large number of
Asemota’s offenses and to his failure to appear in court on these
charges.
The principal thrust of Asemota’s argument is that the
district court erred by combining both the actual and intended loss
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figures to arrive at a “total” loss of $234,773.35. Asemota
asserts that the district court double-counted by adding the actual
loss and intended loss, which already included the actual loss, to
arrive at the total loss figure of $234,773.35. According to
Asemota, the district court should have used only his “intended”
loss, totaling $126,717.24, as the basis for its loss calculation.
Asemota contends that the district court’s error produced a
sentence higher than was permissible under the Sentencing
Guidelines.
In response, the government argues that “Asemota’s imprecise
objection to the ``computation of the dollar value of the actual and
intended loss’ was insufficient to preserve the error claimed for
review that there was ``double-counting’ in arriving at the
$234,773.35 total loss amount.” The government contends that, as
Asemota failed to object properly, his appellate argument should be
reviewed for plain-error. The government also contends that, in
calculating the loss attributable to Asemota’s actions, the PSR
used the term “``intended’ loss in the sense of amounts that were
attempted to be inflicted but which did not actually cause losses.”
Thus, insists the government, “the total loss amount of $234,773.35
attributed to Asemota was computed by adding actual losses to
(additional) intended or attempted losses.” The government
concludes that no “double-counting occurred and that the
$234,773.35 total loss amount was thus the total ``intended loss’
(including actual loss) and was properly used, since it was greater
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than the actual loss.”
The argument that we should review the district court’s
findings for plain error is without merit. Asemota entered
objections to the PSR’s loss calculation by filing a “Statement on
Pre-Sentencing Report” in which he stated that “[d]efendant objects
to the government’s computation of the dollar value of the actual
and intended loss and requests further information to confirm that
such losses exceeded $200,000.” In addition, Asemota’s attorney
presented the objection during the sentencing hearing. These
objections were sufficient to preserve the error and to call the
district court’s attention to the claimed error “in such a manner
so that the district court may correct itself and thus, obviate the
need for [appellate] review.” United States v. Krout, 66 F.3d
1420, 1434 (5th Cir. 1995)(internal citation and quotation
omitted), cert. denied, 116 S. Ct. 963 (1996).
"Review of sentences imposed under the guidelines is limited
to a determination whether the sentence was imposed in violation of
law, as a result of an incorrect application of the sentencing
guidelines, or was outside of the applicable guideline range and
was unreasonable." United States v. Matovsky, 935 F.2d 719, 721
(5th Cir. 1991). Legal conclusions by the district court are
reviewed de novo and findings of fact are reviewed for clear error.
United States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir.), cert.
denied, 510 U.S. 895 (1993). The calculation of the amount of loss
is a factual finding that this court reviews for clear error.
5
United States v. Wimbish, 980 F.2d 312, 313 (5th Cir. 1992), cert.
denied, 508 U.S. 919 (1993).
The guideline applicable to cases involving fraud and deceit
is § 2F1.1. Under § 2F1.1(a), the base offense level for mail
fraud is six. This section provides for an incremental increase in
the base offense level if the loss suffered by the victims of the
fraud was over $2,000. § 2F1.1(b)(1). Eight points are added to
the base level of six if the loss exceeds $200,000 but is less than
$350,000. § 2F1.1(b)(1)(I). In calculating the loss attributable
to a defendant in a fraud case, the district court should use the
greater of the actual loss caused by the defendant’s actions or
“the intended loss that the defendant was attempting to inflict,”
if that can be determined. § 2F1.1, comment. (n.7).
In a case that involved a similar insurance fraud scheme, we
held that the intended loss, constituting the face amount of the
false claims submitted to the insurance companies, is to be used as
the loss calculation for sentencing purposes. United States v.
Lghodaro, 967 F.2d 1028, 1031 (5th Cir. 1992). We reasoned that
the fact that the insurance companies did not pay the entire amount
did not change the fact that the defendant intended to cause a loss
equal to the amount of false claims submitted. Id. In similar
fraudulent schemes, we have held that the amount of intended loss
is the potential amount to be gained from the fraudulent behavior,
whether realized or not. See e.g., United States v. Hill, 42 F.3d
914, 919 (5th Cir.), cert. denied, 116 S. Ct. 130, 133 (1995)(face
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amount of securities fraudulently represented as "owned"); Wimbish,
980 F.2d at 316 (face value of stolen checks deposited rather than
amount actually received).
Here, the PSR attributed the actual and intended losses caused
by Abudu to Asemota because Abudu acted under Asemota’s control.
There is, however, ambiguity in the PSR’s calculation of losses
attributable to Asemota’s and Abudu’s actions. In its assessment
of the loss attributable to Asemota, the PSR states,
Asemota submitted a total of 38 fraudulent
insurance claims, resulting in an intended
loss of $95,470.56 and an actual loss of
$74,934.79. . . . As a result of Abudu’s
fraudulent claims, the insurance companies
sustained an actual loss of $33,121.32 plus an
intended loss of $31,246.68. Specifically,
Asemota’s and Abud[u]’s fraud, including
actual and intended loss, totals $234,773.35.
The PSR later states that “the actual loss and intended loss in
this case totals $234,773.35.”
This is ambiguous. It is unclear whether the actual loss
suffered by the insurance companies is included in the intended-
loss figure, for the PSR provides support only for the $74,934.79
actual-loss total. These statements could also be interpreted to
conclude or indicate that the preparer of the PSR subtracted the
actual losses incurred ($74,934.79 + $33,121.32) from the face
amount of the fraudulent claims submitted ($234,773.35) to arrive
at an “intended” loss ($95,470.56 + $31,246.68). Yet the PSR
provides neither an indication that this calculation method was
used nor any other support for this interpretation.
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If the district court included the actual loss in the
intended-loss total, it double-counted the actual loss by adding
the two figures together to arrive at the “total” loss of
$234,773.35. If that is what happened, the district court also
misapplied § 2F1.1 by adding the two figures instead of using the
greater of (1) the intended loss (fraudulent claims submitted), or
(2) the actual loss, as the loss to be used for sentence
calculation purposes. See Lghodaro, 967 F.2d at 1031; § 2F1.1
comment. (n.7). It seems clear to us that, if the district court
had used the greater of the two figures, the loss calculation would
not have exceeded $200,000. Under a plain reading of the PSR, the
district court should have used the intended loss total of
$126,717.24,1 as it was greater than the actual loss total of
$108,056.11.2 See Lghodaro, 967 F.2d at 1031; § 2F1.1 comment.
(n.7). Consequently, if such loss calculation was used, Asemota’s
sentencing range, with all other factors remaining the same, would
have been 33 to 41 months.
The government’s argument that the total loss of $234,773.35
was the “total intended loss (including actual loss) and was
properly used,” fails under Lghodaro. This argument suggests
double-counting. The district court must use the face amount of
1
Asemota’s intended loss was $95,470.56. Abudu’s attributable
intended loss was $31,246.68.
2
The actual loss attributable to Asemota was $74,934.79; the
actual loss attributable to Abudu was $33,121.32.
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the claims submitted as the “loss” used for sentencing purposes.
See Lghodora, 967 F.2d at 1031. If the government’s argument is
construed to mean that the loss-calculation total used by the PSR
was, in fact, the face amount of the fraud claims submitted (as the
sum of intended loss and the actual loss), the PSR provides no
basis from which the court could draw that conclusion.
We are therefore constrained to conclude that resentencing is
required. The district court’s loss calculation, used as a basis
for Asemota’s sentence, is at best ambiguous. If the “intended”
loss actually includes the “actual” loss, the court indeed double-
counted the actual loss. In the alternative, the district court
erred in assessing the loss attributable to Asemota’s actions under
§ 2F1.1 by adding the intended loss and actual loss instead of
using the greater of the two figures. If the district court did
follow Lghodora and sentenced Asemota based on the amount of the
fraudulent claims he submitted to the insurance companies, it
provides no basis for such a finding. Because, under a plain
reading of the PSR and application of § 2F1.1 to the totals
provided therein, Asemota’s resultant sentencing range would have
been lower than the sentence he received, the district court was
clearly erroneous.
Accordingly, we have no choice but to vacate Asemota’s
sentence and remand the case for resentencing. The new sentencing
must be based on a new PSR, one which follows Lghodaro’s directive
and explains the basis for its actual and intended loss
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calculations. If the current sentence was correctly based on the
amount of fraudulent claims submitted to the insurance
companies, the district court should articulate clear support for
such a loss-calculation finding.
B. Motion to File Supplemental Brief
Asemota filed a motion for leave to file a supplemental brief
to address whether the district court violated his double jeopardy
rights by imposing a $50 special assessment on each count of
conviction, and also to challenge the district court’s failure to
reduce his base offense level for acceptance of responsibility.
Asemota’s counsel filed the motion at the direction of Asemota
although counsel believed the issues to be of no merit. That
motion is denied. Asemota did not raise either issue in the
district court, and they were not addressed by Asemota’s counsel in
the appellate brief. Therefore, there is no argument to
supplement, and we would be reviewing the alleged errors raised in
the supplemental brief for the first time on appeal.
Sentence VACATED and REMANDED; motion DENIED.
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