United States v. Anthony Okereke ( 1996 )

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No. 95-3858
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Anthony Okereke, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 6, 1996
Filed: February 14, 1996
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Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Anthony Okereke challenges the 10-month sentence imposed by
the district court1 after he pleaded guilty to conspiring to commit
bank fraud, in violation of 18 U.S.C. § 371. We affirm.
In February 1995, Okereke and Emeka Okonkwo traveled from Los
Angeles to Omaha, where they attempted to open a number of bank
accounts in the names of Preon Booth (Okereke) and Donald Bronson
(Okonokwo). Because of difficulties in verifying the information
provided by "Booth" and "Bronson," the banks "blocked the accounts"
and notified the Secret Service. On March 15, the Secret Service
was informed that "Bronson" was at one of the banks. Law
enforcement officers dispatched to the bank found Okonkwo inside
and Okereke outside, waiting in a car with a bag containing, inter
alia, "scores of checks in the names of other persons," and
1
The Honorable Thomas M. Shanahan, United States District
Judge for the District of Nebraska.
counterfeit checks payable to "Booth" and "Bronson." Sixty-seven
checks were seized, fourteen of which were written for amounts
totalling more than $58,000.
At sentencing, Okereke argued he was entitled to a three-level
reduction under U.S.S.G. § 2X1.1(b)(2), as he neither completed all
of the acts necessary for the commission of the subject offense nor
was he about to complete all such acts but for his apprehension.
Okereke submitted his affidavit, attesting that he and Okonkwo came
to Omaha in February to open the bank accounts, supplying the banks
with fictitious information; that they returned the next month to
present fraudulent checks for deposit and to make withdrawals
against the deposited checks; and that upon learning that the
accounts had been blocked, they visited the banks only to withdraw
the funds they had originally deposited in February.
The district court overruled Okereke's objection, finding that
he and Okonkwo were on the verge of completing all the acts
necessary for successful completion of a bank fraud, and would have
done so had the banks and the Secret Service not detected their
actions. The district court sentenced Okereke to 10 months
imprisonment and 3 years supervised release.
We review for clear error the district court's factual
findings and de novo its application of the Guidelines. United
States v. Ballew, 40 F.3d 936, 943 (8th Cir. 1994), cert. denied,
115 S. Ct. 1813 (1995). The Sentencing Guidelines provide for a
three-level reduction in conspiracy cases,
unless the defendant or a co-conspirator
completed all the acts the conspirators
believed necessary on their part for the
successful completion of the substantive
offense or the circumstances demonstrate that
the conspirators were about to complete all
such acts but for apprehension or interruption
by some similar event beyond their control.
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U.S.S.G. § 2X1.1(b)(2).
Here, Okereke admitted he had returned to Omaha to complete
the last step in the scheme--negotiating the counterfeit checks.
We agree with the district court that Okereke was not entitled to
the reduction, because the bank fraud "was substantially completed
or was interrupted or prevented on the verge of completion," when
the authorities intervened. See § 2X1.1, comment. (backg'd.). As
the government noted at sentencing, Okereke had "laid literally all
of the groundwork" and had returned to Omaha with the checks,
"ready to commit the crime," and was about to complete all the acts
necessary for the successful completion of the bank fraud but for
the banks having blocked the accounts. Cf. United States v.
Yellowe, 24 F.3d 1110, 1113 (9th Cir. 1994) (defendant who
conspired to possess and use unauthorized access devices not
entitled to § 2X1.1(b)(2) reduction because he had devices and was
about to use them, but for being arrested and the fact that the
necessary equipment was not connected to bank).
Okereke is not entitled to relief under application note 4 to
section 2X1.1. The fact that Okereke may have intended to defraud
the bank of $58,000 but never obtained any money is of no
consequence, because Okereke did not have to obtain any money to
complete the fraud, i.e., to violate 18 U.S.C. § 1344. See United
States v. Solomonson, 908 F.2d 358, 364 (8th Cir. 1990); see also
United States v. Mancuso, 42 F.3d 836, 850 (4th Cir. 1994) (in
cases where there is a completed fraud within an incomplete fraud,
Note 4 directs that the offense level be calculated by taking the
higher level of the actual completed fraud or the intended fraud
minus three levels). Furthermore, Okereke's reliance on United
States v. Watkins, 994 F.2d 1192 (6th Cir. 1993), is misplaced.
Accordingly, the judgment is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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