United States v. Salawu

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
4-24-2003
USA v. Salawu
Precedential or Non-Precedential: Non-Precedential
Docket 02-2458
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-2458
UNITED STATES OF AMERICA
v.
KAMURO SALAWU,
Appellant
On Appeal from the United States District Court
for the District of Delaware
District Court Judge: The Honorable Joseph J. Farnan, Jr.
(D.C. Civil No. 99-cr-00062-01)
Submitted Under Third Circuit L.A.R. 34.1(a)
April 11, 2003
Before: ALITO, FUENTES, Circuit Judges, PISANO, District Judge*
(Opinion Filed: April 23, 2003)
OPINION OF THE COURT
*
The Honorable Joel A. Pisano, United States District Judge for the District of
New Jersey, sitting by designation.
FUENTES, Circuit Judge:
Appellant Kamuro Salawu (“Salawu”) appeals his sentence of 41 months
imprisonment for the crime of bank fraud in violation of 18 U.S.C. § 1344. Salawu
argues that the United States District Court for the District of Delaware erred in
enhancing his sentence based on victim loss and his role as a leader or organizer in the
offense. He claims that the findings of fact necessary to enhance his sentence should
have been made by a jury. Because we find that the District Court sentenced Salawu
below the statutory maximum, we affirm the Judgment of June 4, 2002, sentencing
Salawu to 41 months imprisonment.
I. Background
On August 24, 1999, the Government indicted Salawu on charges of bank fraud
and related crimes. On January 20, 2000, Salawu pleaded guilty to one count of bank
fraud in violation of 18 U.S.C. § 1344. Specifically, the indictment charged Salawu with
executing a scheme to defraud First USA Bank by misappropriating credit card
information. Salawu paid local bank employees to supply him with credit card account
information, which he then used to take over accounts by changing the addresses on the
accounts to addresses that he controlled.
The pre-sentence report assigned Salawu a base offense level of six points
pursuant to U.S.S.G. § 2F1.1. In addition, he received an enhancement of eleven points
for victim loss under U.S.S.G. § 2F1.1(b)(1) and an enhancement of four points under
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U.S.S.G. § 3B1.1(b) for his role as an organizer or leader in the offense. Salawu objected
to those enhancements.
At the sentencing hearing on M ay 6, 2002, the District Court denied Salawu’s
objections and sentenced him at an offense level that included the intended loss and
leadership role enhancements. The District Court sentenced Salawu to 41 months
imprisonment. The statutory maximum term of imprisonment for a violation of 18 U.S.C.
§ 1344 is 30 years.
II. Jurisdiction and Standard of Review
The District Court exercised jurisdiction over this case pursuant to 18 U.S.C. §
3231. We exercise jurisdiction under 28 U.S.C. § 1291 over a final decision of a district
court. A district court’s decision on an issue of law is subject to plenary review. United
States v. Barbosa, 271 F.3d 438, 452 (3d Cir. 2000).
III. Discussion
On appeal Salawu challenges the use of facts in the pre-sentence report to enhance
his sentence because those facts were not found by a jury beyond a reasonable doubt. He
argues that because he only pleaded guilty to one count of the indictment, the District
Court should not have considered conduct underlying the remaining four counts in
enhancing his sentence.2
2
The Government argues that Salawu failed to properly raise this issue
before the District Court. We assume for purposes of this appeal that the issue was
properly presented to the District Court.
3
In United States v. Barbosa, 271 F.3d 438 (3d Cir. 2001), we recognized that the
Supreme Court has emphasized the distinction between a “sentencing factor,” an item
considered by the judge in imposing a sentence, and an “element” of a crime, an item that
must be found by the jury in order to convict. See id. at 452 (citing McMillan v.
Pennsylvania, 477 U.S. 79, 85-86 (1986)). We also stated that the Supreme Court neither
overruled McMillan nor rendered the term “sentencing factor” devoid of meaning in
Apprendi v. New Jersey, 530 U.S. 466 (2000). See Barbosa, 271 F.3d at 452 (citations
omitted). As a result, “a court may still consider aggravating and mitigating factors that
support a specific sentence within the statutorily prescribed range when sentencing a
defendant, so long as the sentence imposed is not greater than the maximum statutory
penalty for the statutory offense established by the jury’s verdict.” Id. (citing Apprendi,
530 U.S. at 483 n.10).
Though Salawu was not convicted by a jury, he pleaded guilty to one count of
bank fraud in violation of 18 U.S.C. § 1344. Thus, in imposing a sentence, the District
Court was permitted to consider aggravating and mitigating factors that supported a
specific sentence within the statutorily prescribed range. The statutory maximum term of
imprisonment for a violation of 18 U.S.C. § 1344 is 30 years. After including sentencing
enhancements based on the intended victim loss and Salawu’s role as an organizer or
leader in the offense, the District Court sentenced Salawu to 41 months imprisonment.
Because the District Court sentenced Salawu to a term of imprisonment below the
4
maximum statutory penalty, it was not necessary that a jury conclude that the facts
considered in enhancing the sentence were proven beyond a reasonable doubt. The
District Court properly sentenced Salawu to 41 months imprisonment.
IV. Conclusion
Accordingly, for the reasons stated above, we affirm the judgment of the District
Court.
_____________________________
/s/ Julio M. Fuentes
Circuit Judge
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