United States v. Desmond Anobah , 734 F.3d 733 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1276
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DESMOND ANOBAH,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 915 — Virginia M. Kendall, Judge.
ARGUED JANUARY 22, 2013 — DECIDED NOVEMBER 4, 2013
Before RIPPLE and ROVNER, Circuit Judges and BARKER,
District Judge.*
ROVNER, Circuit Judge. Desmond Anobah pled guilty to one
count of wire fraud, in violation of 18 U.S.C. § 1343. The district
court sentenced him to thirty-six months of imprisonment, a
term five months below the low end of the calculated guide-
*
The Honorable Sarah Evans Barker, of the United States District Court for
the Southern District of Indiana, sitting by designation
2 No. 12-1276
lines range. He now appeals his sentence, challenging the
court’s application of guidelines enhancements for abuse of a
position of trust and for use of sophisticated means in commit-
ting the fraud. We affirm.
I.
Desmond Anobah was a loan officer, licensed by the State
of Illinois and employed for more than eight years by Ameri-
can Financial Funding Corporation (“AFFC”). Anobah’s duties
at AFFC included recruiting loan applicants, interviewing
those applicants to gather information, preparing loan applica-
tion packages, collecting supporting documentation, and
obtaining other information in support of the loan applications.
Anobah enjoyed success in this position: between late 1997 and
2008, AFFC paid him between $100,000 and $148,000 per year
in commissions. Unfortunately, Anobah decided to supple-
ment his income by participating in a complex mortgage fraud
scheme with several other people.
From May 2006 through October 2006, Anobah acted as a
loan officer for at least two fraudulently obtained mortgages at
AFFC. The scheme employed a “strawman” real estate
purchaser (Prentice Mason), a real estate developer (Bobby
Brown, Jr.) and his employee (Barry Adams), a Chase Bank
employee (Tracy Green) and a licensed real estate agent (Leslie
Love), among others. Brown and Adams recruited Mason to
act as a nominee buyer of a property on Baybrook Court in
Addison, Illinois. They then referred Mason to Anobah so that
Anobah could prepare a fraudulent loan application on behalf
of Mason. The application that Anobah prepared contained
numerous material falsehoods. Among other things, the
No. 12-1276 3
application and supporting documentation (1) falsely stated
that Mason intended to occupy the property; (2) overstated
Mason’s income; (3) falsely represented that Mason was
employed by B&M Custom Homes; (4) falsely reported that
Mason received rental income; (5) inflated the amount of
money Mason had on deposit at Chase Bank; and (6) failed to
disclose all of Mason’s financial liabilities.
To carry off the ruse, Anobah, Brown, Love, Green and
others created supporting documents falsely verifying Mason’s
employment, obtained a falsified letter from an accountant,
generated fraudulent lease agreements and verifications of
rental payments, and created a false verification of deposits
from Chase Bank. Anobah knew that Mason’s Chase account
had a lower balance than was represented, and he knew that
the rent documents and leases were fraudulent, but neverthe-
less submitted them to AFFC with the loan application.
Anobah also recruited an accountant/tax preparer to draft a
materially false letter as part of Mason’s loan application. The
letter stated that the tax preparer had completed tax returns for
Mason for the past three years and that Mason was self-
employed in the home building business. As a result of this
application, AFFC issued two loans in the amount of $760,000
for the Baybrook Court property, and ultimately suffered a loss
of approximately $290,000 on those loans. In the course of this
scheme, AFFC wired funds from an account in Alabama to a
bank in Chicago, providing the basis for the wire fraud charge.
Anobah also played a similar role in other loan applications for
two properties in Chicago, at 6513 South Evans and 6608 South
Lowe. In those instances, two other lenders lost $289,000 and
4 No. 12-1276
$220,000 respectively. The loss for all three lenders totaled
approximately $799,000.
Anobah was charged with two counts of wire fraud in
violation of 18 U.S.C. § 1343, and one count of mail fraud in
violation of 18 U.S.C. § 1341. The government also sought
forfeiture of Anobah’s interest in approximately $760,000
pursuant to 18 U.S.C. § 981(a)(1)(C). Anobah pled guilty to one
count of wire fraud, the count involving the Baybrook Court
loans from AFFC. At the time he pled guilty, he conceded only
that he had participated in the preparation of the accountant’s
letter; he otherwise denied the government’s version of the
offense and all of the relevant conduct related to the other
counts. R. 58, at 28. Because of those denials, the probation
officer who prepared the Pre-sentence Investigation Report
(“PSR”) recommended that Anobah not receive any sentence
reduction for acceptance of responsibility. On the day of his
sentencing hearing, however, Anobah indicated through his
attorney that he wished to “accept full responsibility for the
relevant conduct,” and for “engaging in the conduct that the
Government has described in their position and in their
sentencing memorandas [sic].” R. 60, at 89. See also R. 60 at
97–98. Anobah then conceded the total amount of the loss to all
of the lenders for all three counts of the indictment. As a result,
the court gave him a three-point reduction for acceptance of
responsibility when calculating the guidelines sentence. After
adding a two-level increase for abusing a position of trust, and
a two-level increase for the use of sophisticated means in
committing the fraud, the court arrived at a total offense level
of twenty-two. Combined with Anobah’s criminal history
category of I, the guidelines range was forty-one to fifty-one
No. 12-1276 5
months of imprisonment. The court sentenced Anobah to
thirty-six months of imprisonment, five months below the low
end of the guidelines range. The court also ordered him to pay
restitution in the amount of $290,000, the amount lost by his
employer, AFFC. Anobah appeals.
II.
On appeal, Anobah challenges the district court’s decision
to enhance his sentence for abuse of a position of trust pursu-
ant to U.S.S.G. § 3B1.3, and for use of sophisticated means
pursuant to U.S.S.G. § 2B1.1(b)(10)(C). Our review of sentenc-
ing decisions is limited to whether they are reasonable,
applying the abuse of discretion standard. Gall v. United States,
552 U.S. 38, 46 (2007); United States v. Aslan, 644 F.3d 526, 531
(7th Cir. 2011). We first must ensure that the district court
committed no significant procedural error. Gall, 552 U.S. at 51.
Procedural errors include, among other things, incorrectly
calculating the guidelines range, or failing to explain ade-
quately the chosen sentence, including an explanation for any
deviation from the guidelines range. Gall, 552 U.S. at 51; Aslan,
644 F.3d at 531. We review the district court's interpretation of
the sentencing guidelines de novo. Aslan, 644 F.3d at 531; United
States v. Veazey, 491 F.3d 700, 706 (7th Cir. 2007). We review the
district court’s findings of fact for clear error. United States v.
Knox, 624 F.3d 865, 870 (7th Cir. 2010). Sentences that are
within the properly calculated guidelines range are entitled to
a rebuttable presumption of reasonableness. Rita v. United
States, 551 U.S. 338, 341–49 (2007); Aslan, 644 F.3d at 531–32;
Veazey, 491 F.3d at 706; United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005).
6 No. 12-1276
A.
The PSR recommended a two-level increase for abuse of a
position of trust under U.S.S.G. § 3B1.3. That guideline
provides, in relevant part, “If the defendant abused a position
of public or private trust, or used a special skill, in a manner
that significantly facilitated the commission or concealment of
the offense, increase by 2 levels.” According to the Application
Notes:
“Public or private trust” refers to a position of public
or private trust characterized by professional or
managerial discretion (i.e., substantial discretionary
judgment that is ordinarily given considerable
deference). Persons holding such positions ordi-
narily are subject to significantly less supervision
than employees whose responsibilities are primarily
non-discretionary in nature. For this adjustment to
apply, the position of public or private trust must
have contributed in some significant way to facilitat-
ing the commission or concealment of the offense
(e.g., by making the detection of the offense or the
defendant's responsibility for the offense more
difficult). This adjustment, for example, applies in
the case of an embezzlement of a client's funds by an
attorney serving as a guardian, a bank executive's
fraudulent loan scheme, or the criminal sexual abuse
of a patient by a physician under the guise of an
examination. This adjustment does not apply in the
case of an embezzlement or theft by an ordinary
bank teller or hotel clerk because such positions are
not characterized by the above-described factors.
No. 12-1276 7
U.S.S.G. § 3B1.3, Application Note 1. A “special skill” includes
“a skill not possessed by members of the general public and
usually requiring substantial education, training or licensing.”
U.S.S.G. § 3B1.3, Application Note 4.
The government posited that Anobah held a position of
trust with his employer, AFFC. The government noted that
Anobah was a long-term employee of AFFC, endowed with
trust by his employer, and not simply an independent contrac-
tor as was often the case in loan originator cases. The court
found that Anobah held a special license as a loan originator,
and that his employer relied on him as a licensed loan origina-
tor in determining whether Mason was a suitable loan risk. The
court also concluded that Anobah’s position of trust with his
employer not only facilitated the commission of the offense but
also aided in the concealment of it.
Anobah complains that the court, in making these findings,
relied entirely on the unsworn statement of the Assistant
United States Attorney that AFFC did in fact rely on Anobah
in determining whether Mason was a suitable loan risk.
Anobah asserts that there is no evidence in the record proving
that he was “anything more than a gopher, with no discretion,
much less substantial discretion.” We disagree.
Notably, the record contained the government’s version of
the offense, the PSR, and Anobah’s concession that those
documents were accurate, a concession he made in accepting
responsibility for the offense and relevant conduct. That record
confirmed that Anobah held a state license as a loan originator,
and was a long-term, highly compensated employee of AFFC,
entrusted with obtaining new clients, gathering information
8 No. 12-1276
from them, completing loan applications with them and
gathering supporting documentation for these loan applica-
tions. These facts distinguish Anobah’s case from United States
v. Fuchs, 635 F.3d 929 (7th Cir. 2011), the case on which Anobah
largely relies. In that case, the defendant was neither licensed
nor an employee of the lenders. 635 F.3d at 936. He was instead
employed by a broker, and the broker, in turn, had a contrac-
tual relationship with the lenders. At times, the lenders in
Fuchs tried to independently verify the accuracy of the infor-
mation supplied on the loan applications, indicating that they
had not placed any particular trust in the defendant. The
connection between Fuchs and the lenders was nothing more
than an “ordinary arm’s-length, commercial relationship.”
Fuchs, 635 F.3d at 937. Unlike the situation presented in
Anobah’s case, the relationship between the defendant and the
lenders in Fuchs did not justify application of the enhancement.
True, the record here does not reveal whether AFFC
independently attempted to verify the information provided
by Anobah, or whether his job duties included performing a
verification task for his employer. However, the court drew a
natural and reasonable inference in concluding that AFFC
relied on the information presented to the company by its long-
term, licensed employee in determining whether a customer
was a suitable loan risk. See Fuchs, 635 F.3d at 935 (what is
required is a showing that the victim placed more than the
ordinary degree of reliance on the defendant's integrity and
honesty). The court’s conclusion that Anobah was a highly-
compensated, long-term employee, entrusted with the duties
described above, are adequate to support the enhancement for
abuse of a position of trust. To the extent it was a close call, it
No. 12-1276 9
was the district court’s call to make. See United States v.
Bradshaw, 670 F.3d 768, 771 (7th Cir. 2012) (in a case close to the
outer boundaries of the abuse-of-trust enhancement under
§ 3B1.3, we defer to the district court’s factual findings unless
they are clearly erroneous).
B.
We turn to Anobah’s challenge to the “sophisticated
means” enhancement. Section 2B1.1(b)(10)(C) provides that if
“the offense otherwise involved sophisticated means, increase
by 2 levels.” Application Note 8 explains that:
‘sophisticated means’ means especially complex or
especially intricate offense conduct pertaining to the
execution or concealment of an offense. For exam-
ple, in a telemarketing scheme, locating the main
office of the scheme in one jurisdiction but locating
soliciting operations in another jurisdiction ordi-
narily indicates sophisticated means. Conduct such
as hiding assets or transactions, or both, through the
use of fictitious entities, corporate shells, or offshore
financial accounts also ordinarily indicates sophisti-
cated means.
U.S.S.G. § 2B1.1(b)(10)(C), Application Note 8. The government
sought an increase under this provision because the offense
involved the use of multiple documents containing false
statements, and the creation of other documents to support the
false statements in the first set of documents.
The probation officer who prepared the PSR disagreed,
concluding that the “offense was not any more complex or
10 No. 12-1276
intricate than necessary to accomplish the normal fraud of this
type.” PSR, at 10. The probation officer noted the absence of
the factors listed in Application Note 8, observing that there
was no hiding of assets or transactions, and no use of fictitious
entities, corporate shells or offshore financial accounts. The
government countered that the offense involved more than the
falsehoods contained on the loan applications themselves.
Looking to the relevant conduct of others in the scheme, the
government argued that false documentation was created by
many other people to conceal the lies on the loan applications.
For example, a false verification of rent document was created,
a false lease was submitted, a fake letter was solicited from a
tax accountant, and additional supporting documentation was
falsified to “verify” Mason’s employment status and bank
account balance.
The court concluded that, when considering the relevant
conduct that was reasonably foreseeable to Anobah, the
scheme met the standard necessary for the sophisticated means
enhancement. The district court judge, who had sentenced
several other defendants who were part of the same scheme,
remarked, “I have found that the scheme is sophisticated in all
of the other sentencings on this case for a number of reasons.”
R. 60, at 96. The judge noted that, in addition to the many false
documents created in support of the loan applications, the
scheme involved straw purchasers, false property assessments,
verifications of information supplied by attorneys who were
prosecuted for their role in the offense, numerous properties in
two different states, and a lengthy scheme that evaded detec-
tion for a substantial period of time. R. 60, at 96. The court
therefore added two levels for the use of sophisticated means.
No. 12-1276 11
Anobah first objects that the court relied on findings from
other sentencing hearings, and that he had no warning or
opportunity to review those proceedings. Although Anobah
objected substantively to the application of the two-level
sophisticated means enhancement, he did not object below to
the court’s use of information from other sentencing hearings.
He has therefore forfeited that objection and we review it for
plain error. United States v. Are, 590 F.3d 499, 523–24 (7th Cir.
2009). Anobah was aware that the government was seeking the
sophisticated means enhancement and that the foreseeable
relevant conduct of his co-schemers was at issue. Because
Anobah has not asserted that any of the evidence from his co-
schemers’ sentencing hearings was unreliable or that the
district court’s view of that evidence was somehow flawed,
any error in failing to notify Anobah that this evidence would
be used was not so prejudicial as to meet the plain error
standard. Are, 590 F.3d at 525. See also United States v. Thornton,
642 F.3d 599, 605 (7th Cir. 2011) (even when there is an error
that is plain and affects substantial rights, we may exercise our
discretion to correct the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings). In
assessing the merits of Anobah’s objection to the sophisticated
means enhancement, we will therefore credit the district
court’s findings that were gleaned from the sentencing
hearings of Anobah’s co-schemers. See United States v. Green,
648 F.3d 569, 576 (7th Cir. 2011) (a sophisticated means
enhancement may be applied to a defendant so long as the use
of sophisticated means by other criminal associates was
reasonably foreseeable to him).
12 No. 12-1276
On the merits, Anobah contends that the enhancement was
not warranted because there was no evidence that the offense
involved any greater level of planning or concealment than a
typical fraud of that kind. United States v. Wayland, 549 F.3d
526, 528 (7th Cir. 2008) (offense conduct is sophisticated if it
displays a greater level of planning or concealment than a
typical fraud of that kind). The district court found otherwise
and we see no reason to disturb that decision. The court found
that the scheme involved properties in two states, the use of
straw purchasers, and the creation of both false loan applica-
tions and false documents to support the misinformation in the
false loan applications. The court also noted that the scheme
went undetected for a lengthy period of time. In the transaction
for which Anobah pled guilty, no fewer than five other people
aided the scheme including a builder, a banker, a real estate
agent, a tax accountant and a straw purchaser. The court did
not clearly err in finding that the scheme involved sophisti-
cated means in light of the foreseeable actions of Anobah’s co-
schemers.
III.
For the sake of completeness, we address one final issue
raised in the government’s brief. Although Anobah was
charged with wire fraud and mail fraud, and pled guilty to
wire fraud in violation of 18 U.S.C. § 1343, the judgment and
commitment orders mistakenly list the offense of conviction as
bank fraud, in violation of 18 U.S.C. § 1344. See Brief of United
States, at 1 n.2. The government assured us in that same
footnote that it would move to correct the mistake in the
district court. Our review of the district court docket reveals
that no such motion has been filed. A remand is unnecessary,
No. 12-1276 13
however, because we may correct the error ourselves. The
discrepancy in the written judgment is a clerical error, correct-
able at any time under Federal Rule of Criminal Procedure 36.
Fed. R. Crim. P. 36 (“After giving any notice it considers
appropriate, the court may at any time correct a clerical error
in a judgment, order, or other part of the record”); United States
v. Johnson, 571 F.3d 716, 718 (7th Cir. 2009) (Rule 36 is limited
to errors that are clerical in nature, not judicial mistakes). Rule
36 is equally available to the court of appeals and the district
court. See Fed. R. Crim. P. 1(a)(1) (“These rules govern the
procedure in all criminal proceedings in the United States
district courts, the United States courts of appeals, and the
Supreme Court of the United States.”); United States v. Pulley,
601 F.3d 660, 669 n.4 (7th Cir. 2010). Notice has been adequate
here; the government raised the issue in its brief and Anobah
could have responded in either his reply brief or at oral
argument. We therefore order the clerk of the district court to
amend the written judgment and commitment orders to reflect
that the offense of conviction was wire fraud in violation of 18
U.S.C. § 1343. With that modification, the judgment of the
district court is
AFFIRMED.