United States v. Omole, Davis ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-2252, 06-3605 & 07-1471
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
DAVIS OMOLE,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 670—Ronald A. Guzmán, Judge.
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ADENIYI ADESOKAN and SAMUEL OMOLE,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 05 CR 670-2 & 05 CR 670—Ronald A. Guzmán, Judge.
____________
ARGUED NOVEMBER 6, 2007—DECIDED APRIL 15, 2008
____________
2 Nos. 06-2252, 06-3605 & 07-1471
Before FLAUM, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Davis Omole, Adeniyi Adesokan,
and Samuel Omole pled guilty to various crimes arising
from a complex identity-theft scheme that the three
individuals carried out over two years. The district court
sentenced Davis to 36 months’ imprisonment, Adesokan
to 78 months’ imprisonment, and Samuel to 24 months’
imprisonment. In this consolidated appeal, the govern-
ment appeals Davis’s sentence, which was 51 months
below the low end of the Sentencing Guidelines range of
87-102 months. Adesokan appeals his sentence, arguing
that it was unreasonable in light of Davis’s considerably
shorter sentence for essentially the same conduct. Samuel
appeals his sentence on the ground that the district court
incorrectly calculated the amount of loss attributable to
him. We affirm the sentences of Adesokan and Samuel
Omole. We conclude that Davis Omole’s sentence was
unreasonable and we vacate his sentence and remand for
resentencing.
I. HISTORY
Davis Omole and Adeniyi Adesokan were the chief
architects of a complex identity-theft scheme through
which they defrauded approximately 120 individuals
between April 2003 and July 2005. Davis and Adesokan
used stolen identities to buy cell phones, clothing, and
other items and services. They held over 300 auctions
on the online auction website eBay, where they listed for
sale various items they did not own and did not intend
to sell (cell phones, plasma televisions, stereos, electronic
keyboards), under approximately 100 different eBay
accounts they created with identities they had stolen. The
Nos. 06-2252, 06-3605 & 07-1471 3
eBay auctions led to $254,000 in intended sales; approxi-
mately $90,000 was actually collected by the defendants.
Davis and Adesokan continuously closed and opened
eBay accounts, activated and deactivated cell phone and e-
mail accounts, and changed mailing addresses and post-
office boxes, to avoid getting caught.
Davis’s younger brother, Samuel, was also involved in
the identity-theft scheme. Davis and Samuel worked at
stores where cell phones were sold and activated. Davis
stole customers’ credit-card and personal-identifica-
tion information. Samuel used the stolen information to
activate cell phones, some of which were used in the eBay
scheme. Davis and Adesokan organized the eBay auctions
and collected the victims’ money. All three men used
the stolen information to make personal purchases.
After they were arrested and charged, Davis pled guilty
to one count of wire fraud, see 18 U.S.C. § 1343, and one
count of aggravated identity theft, see id. § 1028(A)(a)(1).
Adesokan pled guilty to one count of mail fraud. See
id. § 1341. Samuel also pled guilty to one count of mail
fraud. See id.
A. Davis Omole’s Sentence
Davis Omole’s Presentence Investigation Report (PSR)
calculated his total offense level for the wire-fraud count
as 25, and his Criminal History Category as II. The proba-
tion officer indicated in the PSR that the guidelines range
for the wire-fraud count was 63 to 78 months’ imprison-
ment; the government recommended a sentence within
that range. Regarding the aggravated identity-theft
count, Davis was subject to a mandatory term of 24
months’ imprisonment, which could not be served concur-
4 Nos. 06-2252, 06-3605 & 07-1471
rently with another sentence. See id. § 1028A(a)(1), (b)(2);
U.S.S.G. § 2B1.6(a). Thus, the total term Davis faced under
the guidelines was 87 to 102 months’ imprisonment.
During Davis’s sentencing hearing, the judge noted that
the defendant had perpetrated a substantial and sophisti-
cated fraudulent scheme that involved planning, execu-
tion, and avoidance of detection over a long period of
time. He had cheated “dozens and dozens” of people out
of approximately $90,000, and intended to cheat them out
of much more had the scheme been carried out as planned.
The judge extensively scolded Davis for the crimes he
committed and the arrogance he displayed during court
proceedings.
This defendant’s record reflects an arrogance and an
obvious feeling of superiority over the rest of us. In
addition to that, not only the things he has done but
the way he has done them reflects a total lack of
empathy for his victims. Sending them e-mails ridicul-
ing their stupidity for being cheated by him reflects a
lack of feeling for other human beings that is absolutely
alarming in a 20-year old. . . . And he’s going to keep
[defrauding victims] until and unless he develops
some sense of what it takes to live with the rest of us
without cheating us, stealing from us, and victimizing
us.
After those scathing comments, the judge moderated
and explained that because Davis was only 20 years old,
and because this fraudulent scheme represented Davis’s ”
first substantial involvement with the law,” he was depart-
ing downward with respect to the wire-fraud count and
imposing a sentence below the minimum guidelines
range. He sentenced Davis to a term of 12 months’ impris-
onment for the wire-fraud conviction—51 months less than
Nos. 06-2252, 06-3605 & 07-1471 5
the minimum advised by the guidelines. The judge then
imposed the mandatory 24-month sentence for Davis’s
aggravated-identify-theft conviction, to run consecutively.
Davis was ordered to pay restitution to the victims.
The judge then chastised Davis further:
The sentence I have imposed upon you is substan-
tially less than [the guidelines range], so you’ve caught
a break that I’m not at all sure you deserve. Your
conduct during the course of these proceeding[s] has
been nothing but contemptuous of this Court. Your
failure to abide by our conditions of release has been
nothing but arrogant. Your continued participation in
these schemes after having been convicted in State
Court and awaiting the resolution of this case has been
nothing but arrogant, and I’m going overboard to
make an adjustment for your age and the incredible
lack of understanding of life that some people at
your age seem to reflect.
The judge ended his speech to Davis by encouraging
him to do the right thing in the future, and explaining
that he would be surrounded by people who do nothing
but the wrong thing. The judge said, to conclude, “I’m
giving you a chance. The choice is yours. Good luck.”
B. Adeniyi Adesokan’s Sentence
Adesokan’s PSR calculated his offense level as 24 and his
Criminal History Category as III. At sentencing, the
judge decided that the offense level was correct because
it accounted for Adesokan’s conduct, the intended loss of
the scheme ($254,000)—whether realized or not—and
Adesokan’s failure to accept responsibility for his crime
6 Nos. 06-2252, 06-3605 & 07-1471
and conduct. His Criminal History Category of III was
also correct, and was based on a previous guilty plea for
computer fraud; a probation violation; a previous guilty
plea for unlawful possession of a fraudulent drivers’
license, and then driving on a suspended or revoked
license; and finally, a previous guilty plea for forgery.
Adesokan’s guidelines range was 63 to 78 months’ impris-
onment.
Both Adesokan and his mother testified at Adesokan’s
sentencing hearing. Adesokan argued that he was slowly
withdrawing from the scheme. The judge listened to the
arguments made by both parties for their respective
sentencing recommendations, and explained that he
had read and considered the character-reference letters
that were submitted on Adesokan’s behalf.
The judge did not credit Adesokan’s withdrawal argu-
ment, and explained that if Adesokan wanted to relin-
quish his responsibility for the scheme he would have
had to stop his participation in it, which he did not do.
The judge went on to state that Adesokan had been
given plenty of chances to change after his numerous
convictions for similar conduct, but he failed to change.
“You have had plenty of opportunities. You’ve been given
probation and probation and probation. You have been
told what you were doing was wrong by the courts, law
enforcement, and your parents. You have been warned
that you were headed towards disastrous consequences
by all concerned, and you continued.” The judge sen-
tenced Adesokan to 78 months’ imprisonment—the
maximum sentence under the guidelines range—and
ordered restitution.
Nos. 06-2252, 06-3605 & 07-1471 7
C. Samuel Omole’s Sentence
Samuel’s PSR calculated his total offense level as 19, and
his Criminal History Category as I. The guidelines range
was 30 to 37 months’ imprisonment. The government
recommended a sentence within that range.
At his sentencing hearing, Samuel Omole argued that
he was not involved in the comprehensive eBay scheme,
but rather, was involved in a smaller, individualized
scheme in which he alone made fraudulent purchases with
stolen information that he got from his brother, Davis.
Samuel argued that he never stole any identities while
working at cell-phone dealers, and that he did not profit
from the eBay scheme. Samuel also argued that, even if
he was part of the broader eBay scheme, his involve-
ment did not begin until after October 2004—when he
had activated a phone that ultimately was used in the eBay
scheme. Consequently, Samuel urged that the total in-
tended loss attributable to him should be less than the
amounts attributable to Adesokan and Davis. The gov-
ernment countered that it believed Samuel was involved
in the scheme from the fall of 2003 because Adesokan
had testified in front of a grand jury, and in a proffer-
protected statement, that Samuel had activated a phone
in December 2003 that was used in the eBay scheme.
The judge rejected Samuel’s argument that he was not
involved in the eBay scheme based on the fact that Samuel
had activated a cell phone that was used in the scheme. The
judge stated, “it’s clear to me that he was helping this
entire scheme and that his part of it, although you can call
it a small part because the scheme was so big, was to
provide the phones and to aid in other ways, and he did
that.” With respect to the loss-attribution argument, the
judge credited Adesokan’s sworn testimony to the grand
8 Nos. 06-2252, 06-3605 & 07-1471
jury and stated that Samuel did not put forth evidence
demonstrating that the statement was incorrect or that
Adesokan was lying. The judge decided that Adesokan’s
testimony about Samuel’s involvement in the scheme—
beginning in the fall of 2003—was sufficient to meet the
preponderance-of-the-evidence standard required for the
judge to hold Samuel accountable for the losses caused
throughout the entire scheme.
The judge sentenced Samuel to 24 months’ imprisonment
and ordered him to pay restitution to the victims. The
judge said that he departed from the guidelines for
Samuel because he had played such a minor role in the
fraudulent scheme.
II. ANALYSIS
On appeal, the government argues that Davis Omole’s
12-month sentence for wire fraud—which was 51 months
below the bottom of the guidelines range—is unreasonable.
Adesokan appeals his 78-month sentence, arguing that,
although the sentence is within the guidelines range, it is
unreasonable in light of Davis’s 36-month sentence for
essentially the same conduct. Samuel Omole appeals his
24-month sentence on the ground that the district court
erred in its calculation of the loss attributable to him.
We review sentences for their reasonableness, United
States v. Booker, 543 U.S. 220, 260-63 (2005), under an abuse-
of-discretion standard, Gall v. United States, 128 S. Ct. 586,
597 (2007). A sentence that falls within a properly calcu-
lated advisory guidelines range is presumed reasonable.
Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007); United
States v. Miranda, 505 F.3d 785, 791 (7th Cir. 2007). On the
other hand, there is not a “presumption of unreasonable-
Nos. 06-2252, 06-3605 & 07-1471 9
ness for sentences outside the Guidelines range.” Gall,
128 S. Ct. at 595.
In imposing a sentence outside the guidelines range, a
judge need not provide “extraordinary” justifications. Id.
at 595. But, he must “give serious consideration to the
extent of any departure from the Guidelines and must
explain his conclusion that an unusually lenient or an
unusually harsh sentence is appropriate in a particular
case with sufficient justifications.” Id. Although the
degree of variance outside of the guidelines is a pertinent
consideration on review, the Supreme Court has rejected
the application of mathematical formulas that use “the
percentage of a departure as the standard for determining
the strength of the justifications required for a specific
sentence.” Id. at 595; see also United States v. McIlrath,
512 F.3d 421, 426 (7th Cir. 2008).
A sentencing judge undertakes a two-step process
when calculating a defendant’s sentence. See Miranda,
505 F.3d at 791; United States v. Robinson, 435 F.3d 699, 700-
01 (7th Cir. 2006). The judge is first required to calculate
the proper advisory guidelines range. Gall, 128 S.Ct. at 596(“[T]he Guidelines should be the starting point and the
initial benchmark.”). Then, after hearing the parties’ argu-
ments, the judge must consider the factors enunciated in
18 U.S.C. § 3553(a) to decide whether the defendant’s
sentence should fall within that guidelines range. Id.;
Miranda, 505 F.3d at 791 (“Although the guidelines are
treated as advisory after Booker, the application of section
3553(a) is mandatory.”); United States v. Wachowiak, 496
F.3d 744, 747-48 (7th Cir. 2007); Robinson, 435 F.3d at 700-01.
Sentencing judges are directed in § 3553(a) to consider:
(1) offense and offender characteristics; (2) the need for
a sentence to reflect the basic aims of sentencing,
10 Nos. 06-2252, 06-3605 & 07-1471
namely (a) “just punishment” (retribution), (b) deter-
rence, (c) incapacitation, (d) rehabilitation; (3) the
sentences legally available; (4) the Sentencing Guide-
lines; (5) Sentencing Commission policy statements;
(6) the need to avoid unwarranted disparities; and
(7) the need for restitution.
Rita, 127 S. Ct. at 2463.
After a judge decides on the defendant’s sentence, he
must explain his reasoning. Gall, 128 S. Ct. at 597. Although
“the sentencing court is not required to issue a detailed
oral or written opinion in every case,” Wachowiak, 496
F.3d at 749, it must “adequately explain the chosen sen-
tence to allow for meaningful appellate review and to
promote the perception of fair sentencing,” Gall, 128 S. Ct.
at 597; see also Rita, 127 S. Ct. at 2456, 2468 (“The sentenc-
ing judge should set forth enough to satisfy the appel-
late court that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal
decisionmaking authority.”). If the judge chooses a sen-
tence below or above the guidelines, he must proffer a
sufficient justification for the divergence. Gall, 128 S. Ct. at
597. “[A] major departure should be supported by a
more significant justification than a minor one.” Id.We now consider each of the defendant’s appeals in turn.
A. Davis Omole
In reviewing Davis’s sentence, we first consider wheth-
er the judge committed a procedural error. Gall, 128 S.
Ct. at 597; United States v. Gordon, 513 F.3d 659, 666 (7th
Cir. 2008). We ask whether the judge properly calculated
the guidelines range; analyzed the factors set forth in
§ 3553(a); based the sentence on accurate facts; and ex-
Nos. 06-2252, 06-3605 & 07-1471 11
plained the sentence and the justifications for an above- or
below-guidelines sentence. Gall, 128 S. Ct. at 597; Gordon,
513 F.3d at 666. In Davis Omole’s case, the judge noted the
properly calculated guidelines range to be 63 to 78 months’
imprisonment for the wire-fraud conviction, and 24
months’ imprisonment for the aggravated identity theft
conviction, to run consecutively. The judge listened to the
parties’ arguments at the hearing and considered the
§ 3553(a) factors—some explicitly, and others implicitly.
See Gall, 128 S. Ct. 586, 599 (“Since the District Judge
correctly calculated and carefully reviewed the guide-
lines range, he necessarily gave significant weight and
consideration to the need to avoid unwarranted dispari-
ties.”). The judge noted Davis’s personal characteristics,
including his young age (20 years) and his lack of serious
involvement with the law. He expounded on Davis’s
character flaws—his extreme arrogance, his lack of empa-
thy, and his self-centeredness. He discussed the offense
characteristics, noting the sophisticated, enduring nature
of the fraudulent scheme that cheated many people out of
their “hard-earned money.” The transcript reveals the
reasons behind the judges’ below-guidelines sentence. We
find no procedural error.
Our next step is to review the substantive reasonable-
ness of the sentence under the deferential abuse-of-discre-
tion standard. Gall, 128 S. Ct. at 597; Gordon, 513 F.3d at 666.
This totality-of-the-circumstances analysis requires that
we defer to the sentencing judge, who considers each
defendant as an individual and decides sentences on a
case-by-case, rather than wholesale, basis. Gall, 128 S. Ct. at
597-98. We recognize that the sentencing judge is in the
best position to apply the § 3553(a) factors to the individual
defendant, and that the judge sees things we cannot see,
12 Nos. 06-2252, 06-3605 & 07-1471
assesses in real-time the credibility of witnesses and
defendants when we cannot, and develops insights from
the various bits and pieces of information that he comes
across in the course of a case that nonetheless are not
reflected in the record. See Gall, 128 S. Ct. at 597-98; Gordon,
513 F.3d at 666.
Because the “contours of substantive reasonableness
review are still emerging,” Wachowiak, 496 F.3d at 750,
we cannot target a fixed point at which a sentence turns
from reasonable to unreasonable, or vice versa. Id. at 751.
“The concept of substantive reasonableness contemplates
‘a range, not a point.’ ” Id. (quoting United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)). A variant
sentence based on factors that are particularized to the
individual defendant may be found reasonable, but we
are wary of divergent sentences based on characteristics
that are common to similarly situated offenders. See id. at
750 (“A nonguidelines sentence premised on factors
that are common to offenders with like crimes may re-
flect a simple disagreement with the guidelines; Booker
did not authorize courts to find that the guidelines them-
selves (or the statutes on which they are based) are unrea-
sonable.” (internal quotation marks and citations omitted)).
Turning to Davis’s sentence, there is a sizeable difference
between the advisory range and the sentence imposed by
the judge. Davis’s sentence for the wire-fraud conviction
was just 12 months’ imprisonment—81% lower than the
low end of the guidelines range.1 As such, the district
1
We include the percentage for purposes of illustration, and
refrain from using the mathematical variance in our reason-
ableness determination. See Gall, 128 S. Ct. at 595.
Nos. 06-2252, 06-3605 & 07-1471 13
judge had to enunciate persuasive reasons, based on the
factors listed in § 3553(a), for the variance. See Gall, 128
S. Ct. at 596-97; Wachowiak, 496 F.3d at 749; United States v.
Johnson, 427 F.3d 423, 426 (7th Cir. 2005). Looking at the
judge’s dialogue concerning Davis, however, we are
struck by his negative tone. The judge severely chastised
Davis, saying he demonstrated “a lack of feeling for
other human beings that is absolutely alarming in a 20-
year old”; that his conduct had been “nothing but con-
temptuous of this Court”; that his failure to follow his
release conditions and his continued participation in the
fraudulent schemes after being convicted in state court
was “nothing but arrogant.” Instead of making a persua-
sive case for a substantially below-guidelines sentence,
the judge stated a strong case for just the opposite.
Perhaps the judge saw something in this defendant that
we are unable to glean from the record. As previously
discussed, sentencing law not only allows, but requires
judges to take individualized characteristics into account.
See Gall, 128 S. Ct. at 597. At the same time, the judge
must articulate reasons that assure us that the sen-
tencing process is a reasoned one. Rita, 127 S. Ct. at 2469.
The judge cited the defendant’s young age and his lack of
substantial involvement with the law as the reasons for
the low sentence. Davis’s age, while a personal characteris-
tic a judge is allowed to consider under §3553(a), is not
unique to Davis, and does not by itself convince us that
Davis deserves this much-reduced sentence. The defen-
dant’s lack of “substantial involvement with the law” also
fails to persuade us. For one, we are aware of the fact that
the defendant had two previous state convictions for
driving on a suspended license, a state felony convic-
tion for Internet fraud in 2004, and a state conviction for
14 Nos. 06-2252, 06-3605 & 07-1471
knowingly possessing a fraudulent driver’s license in
2004. The sentencing judge even indicated that Davis
continued participating in the identity-theft scheme after
he was convicted in state court for the same conduct.
Davis’s conviction background hardly appears to us to
call for a reduced sentence.
At sentencing, the judge did not highlight Davis’s
rehabilitative potential or other factors that would sup-
port a below-guidelines sentence. Instead, the judge
commented on the defendant’s extreme arrogance, his
contempt for the court, and his utter lack of feeling
for other human beings. The picture the judge painted for
us is one of an offender who deserves the punishment the
law prescribes. See, e.g., United States v. Roberson, 474
F.3d 432, 434 (7th Cir. 2007) (“One might have expected
these factors to push his sentence to the top of the guide-
lines range or even above it . . . .”).
The judge may have leaned toward a lighter sentence
for Davis’s wire-fraud conviction to somehow com-
pensate for the 24-month sentence Congress mandated
for aggravated identity theft, which must run consecu-
tively to other sentences. 18 U.S.C. § 1028A(a)(1), (b)(2).
Had the judge even slightly factored this into his decision,
however, he would have violated 18 U.S.C. §1028A(b)(3),
which prohibits courts from reducing the sentence of a
connected crime to “compensate for, or otherwise take
into account, any separate term of imprisonment imposed
[for Aggravated Identity Theft].” We have held that
sentencing judges are not permitted to reduce an under-
lying sentence just because an add-on sentence for a re-
lated crime carries with it a fixed minimum sentence. See
Roberson, 474 F.3d at 436.
Nos. 06-2252, 06-3605 & 07-1471 15
Davis’s situation is similar to the defendant’s in United
States v. Roberson, 474 F.3d at 433-36. There, a 19-year old
pled guilty to bank robbery and to using a firearm in a
crime of violence. Id. at 433. He was sentenced to one
month’s imprisonment for the bank-robbery conviction
(the low end of the guidelines range was 46 months), and
a mandatory 84 months’ imprisonment for the firearm
offense, to run consecutively. Id. at 433-34. The judge
explained that because she could not adjust the manda-
tory 84-month consecutive sentence, she had “no alter-
native but to adjust the 46 month guideline part of the
sentence so that the sentence, as a whole, is reasonable.” Id.
at 434. On appeal, we viewed the judge’s exercise of
discretion as representing a disagreement with Congress
about the appropriateness of a sentence for a given crime,
and we rejected her approach. Id. at 436-37. Even though
the Sentencing Guidelines are advisory, judges are not
allowed to simply ignore the guidelines ranges. Id.The sentencing judge in Davis’s case said it best himself
when he said to Davis: “[t]he sentence I have imposed
upon you is substantially less than [the guidelines range],
so you’ve caught a break that I’m not at all sure your deserve.”
The judge also admitted that he was “going overboard” to
make an adjustment for Davis’s age and the lack of under-
standing that people of his age seem to reflect. Without a
compelling justification for the “break” Davis caught at
sentencing—which the judge in this case did not pro-
vide—the 12-month sentence for wire fraud can only be
viewed as substantively unreasonable. See id. at 435-37.
We come to this conclusion even as we recognize that
the district court mentioned a few mitigating factors in a
document that was provided to the parties after sentencing.
In this document, the judge listed as his “reasons for
16 Nos. 06-2252, 06-3605 & 07-1471
departure,” in addition to Davis’s young age, the fact
that Davis was a student in college, his history of good
grades in high school, and his past participation on his
high-school football and chess teams. He indicated that
Davis’s father was murdered in 1999, and that Davis had
real potential for rehabilitation—“beyond what the court
ordinarily sees.” The judge felt as though “seven or eight
years in jail would go a long way towards destroying that
potential.”
These comments directly contradict the denigrating
statements made at sentencing, and only further our
conclusion that the sentence was unreasonable as we are
left with widely divergent and seemingly irreconcilable
pictures of this defendant. We also note that the judge’s
sentiment that a lengthy imprisonment would go a long
way toward destroying Davis’s potential is “completely
speculative.” See Roberson, 474 F.3d at 435-36; United States
v. Goldberg, 491 F.3d 668, 673 (7th Cir. 2007).
We are not saying that any below-guidelines sentence
for Davis would have been unreasonable. See Goldberg,
491 F.3d at 674. However, based on the sentencing tran-
script and the clearly disparaging comments the judge
made about Davis, we find that the district court abused
its discretion by imposing the 12-month sentence, and
therefore we vacate the sentence and remand for
resentencing.
B. Adeniyi Adesokan
Adesokan argues on appeal that his 78-month sentence
was unreasonable and thus illegal, even though it was
within the correctly calculated guidelines range, because
Nos. 06-2252, 06-3605 & 07-1471 17
it “exceeded his virtual twin Mr. Omole’s by five and one-
half years and over 600% without any lawful justification.”
Adesokan’s argument is premised on the assumption
that Davis Omole’s 12-month sentence is reasonable;
Adesokan’s entire brief focuses on the discrepancy bet-
ween his sentence and that of Davis, and the perceived
injustice of widely disparate sentences for similar
codefendants who participated in the same scheme.
Seeing as we have already decided that Davis Omole’s
sentence was substantively unreasonable, Adesokan’s
appeal is effectively doomed.
This court refuses to view the discrepancy between
sentences of codefendants as a basis for challenging
a sentence. “We will not disturb the appealing de-
fendant’s sentence even when a co-conspirator’s sen-
tence is lenient.” United States v. White, 406 F.3d 827, 837
(7th Cir. 2005). We will only “disturb a sentence based on
an unjustifiable disparity between co-defendants . . . if it
‘actually creates a disparity between the length of the
appellant defendant’s sentence and all other similar
sentences imposed nationwide.’ ” Id. (quoting United States
v. Simpson, 337 F.3d 905, 909 (7th Cir. 2003) (em-
phasis added)); see also United States v. Davila-Rodriguez,
468 F.3d 1012, 1014 (7th Cir. 2006) (“[W]e reject
Davila-Rodriguez’s argument that his sentence is unreason-
able when compared to the sentences imposed on
other defendants in this case because the kind of disparity
with which [18 U.S.C.] § 3553(a)(6) is concerned is an
unjustified difference across judges (or districts) rather
than among defendants to a single case.” (internal quota-
tion marks and citations omitted)).
But even if we decided to compare the sentences of
Adesokan and Davis in our review for reasonableness,
18 Nos. 06-2252, 06-3605 & 07-1471
Adesokan would still lose—we find no unreasonableness
in the judge’s imposition of Adesokan’s sentence; rather,
we find the judge erred with respect to Davis Omole’s
sentence. Adesokan’s sentence was within the properly
calculated guidelines range—at the very high end. As
such, his sentence is presumed reasonable. Rita, 127 S. Ct.
at 2462; Miranda, 505 F.3d at 791.
In this case, the judge found that the PSR properly
calculated Adesokan’s offense level and criminal-history
category. The sentencing transcript shows that the judge
considered the testimony and the parties’ arguments. He
also took into account the character-reference letters
submitted on Adesokan’s behalf. He looked at Adesokan’s
offense history, and his lack of rehabilitation following
his previous convictions: “You’ve been given probation
and probation and probation. . . . and you continued.” The
judge noted that Adesokan’s convictions were even more
“pathetic” because he comes from a good home with
parents who care about him. The judge said that based
on the totality of the circumstances, he decided on a
sentence of 78 months’ imprisonment. The judge made
no procedural error in deciding Adesokan’s sentence,
and the sentence is not substantively unreasonable.
Adesokan perpetrated a large fraud on numerous victims,
depriving them not only of money, but also of the sense
of personal security.
The guidelines range for Adesokan’s offense, while
advisory, reflects the Sentencing Commissions’ judgment
as to the sentencing range that best carries out its con-
gressional mandate to further the objectives of § 3553(a).
See Rita, 127 S. Ct. at 2463. “An individual judge who
imposes a sentence within the range recommended by
the guidelines thus makes a decision that is fully con-
Nos. 06-2252, 06-3605 & 07-1471 19
sistent with the Commission’s judgment in general.” Id. at
2465; see also Gall, 128 S. Ct. at 594. Such sentences are
presumed reasonable, and in this case, the within-guide-
lines sentence is in fact reasonable. See United States v.
Hurn, 496 F.3d 784, 791 (7th Cir. 2007) (“Hurn has not
convinced us that his sentence is an exception to the
general rule that a Guidelines sentence is reasonable.”).
C. Samuel Omole
Samuel Omole appeals his below-guidelines sentence,
claiming that the court erroneously calculated the loss
amount attributable to him, thereby placing him in a
higher guidelines range than Samuel had hoped for. The
judge found by a preponderance of the evidence, see
United States v. Hale , 448 F.3d 971, 988 (7th Cir. 2006), both
that Samuel was involved in the broader eBay scheme,
and that he was involved in it from December 2003.
Samuel specifically faults the judge’s reliance on
Adesokan’s grand-jury testimony, during which Adesokan
stated that Samuel had activated three phones in December
2003 that were used in the eBay scheme. Adesokan’s
testimony constitutes hearsay, but judges are allowed to
rely on hearsay evidence during sentencing so long as
that evidence is reliable and the defendant is afforded a
reasonable opportunity for rebuttal. United States v. Barnes,
117 F.3d 328, 337 (7th Cir. 1997); United States v. Francis,
39 F.3d 803, 810 (7th Cir. 1994). The judge was clear to note
that Samuel had the opportunity to cross-examine
Adesokan in order to rebut his testimony: “You are per-
fectly free to have an evidentiary hearing at the sen-
tencing and bring him here and have him testified”;
“you are not precluded even now from presenting any
20 Nos. 06-2252, 06-3605 & 07-1471
evidence in any form that you wish in the sentencing
hear[ing].”
In reviewing the district court’s reliance on hearsay
testimony under an abuse of discretion standard, see
Barnes, 117 F.3d at 337, “[w]e accord a sentencing court’s
credibility determinations exceptional deference.” United
States v. Ngatia, 477 F.3d 496, 500 (7th Cir. 2007). Samuel
argued that Adesokan had an incentive to lie about Sam-
uel’s involvement, and that Adesokan was not trust-
worthy because he had lied before in court proceedings.
The judge considered these arguments, but ultimately
disagreed and decided that Adesokan’s grand-jury testi-
mony was reliable. The judge believed that there was no
motive for Adesokan to lie to the grand jury and that it
would not have been profitable for him to do so. Ultimately
the judge decided that it was “more probably true than not
that what Mr. Adesokan said [was] accurate and correct.”
He based this conclusion on “all of the details, the circum-
stances and all of the things that have been shown.”
Even though Samuel claims that he was not involved in
the eBay scheme until much later in time, the district
judge “was entitled to credit the contrary version of events
as described” by Adesokan. Id. We defer to that finding,
and reject Samuel’s argument that the judge abused his
discretion in this regard.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the sentences of
Adeniyi Adesokan and Samuel Omole and we VACATE
Davis Omole’s sentence and REMAND for resentencing.
USCA-02-C-0072—4-15-08