United States v. Emmanuel Onwuzulike

FILED
NOT FOR PUBLICATION JUL 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50588
Plaintiff - Appellee, D.C. No. 2:09-cr-01045-DSF-1
v.
MEMORANDUM *
EMMANUEL IFECHUKWU
ONWUZULIKE, AKA Emmanuel I.
Onwuzulike,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted June 4, 2012
Pasadena, California
Before: TROTT and THOMAS, Circuit Judges, and SEEBORG, District Judge.**
Emmanuel Ifechukwu Onwuzulike appeals the sentence and restitution order
imposed by the district court following his guilty plea to one count of mail fraud,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Seeborg, District Judge for the U.S. District
Court for Northern California, sitting by designation.
under 18 U.S.C. § 1341, arising from his involvement in a fraudulent lottery
scheme. We affirm. Because the parties are familiar with the factual and
procedural history of this case, we need not recount it here.
I
The district court did not err by enhancing Onwuzulike’s sentence under the
Sentencing Guidelines for loss amount, number of victims, or obstruction of
justice. We review the district court’s interpretation of the Sentencing Guidelines
de novo and its findings of fact for clear error. United States v. Laurienti, 611 F.3d
530, 551-52 (9th Cir. 2010).
A
The district court did not clearly err by determining that the loss amount
exceeded $2.5 million. The sentencing guidelines allow the district court to “make
a reasonable estimate of the loss” in a fraud case. U.S.S.G. § 2B1.1 cmt. n.3(C).
The court “‘need not make its loss calculation with absolute precision; rather, it
need only make a reasonable estimate of the loss based on the available
information.’” Laurienti, 611 F.3d at 558 (quoting United States v. Zolp, 479 F.3d
715, 719 (9th Cir. 2007)). The district court’s conclusion was supported by a
declaration from an investigative accountant, who determined that Onwuzulike’s
domestic victims transferred a total of $2,919,258.79 into Onwuzulike’s bank
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accounts. The government’s accountant analyzed bank records of Onwuzulike’s
accounts, and she did not use an improper, statistically unreliable sample to
determine the total loss amount. United States v. Culps, 300 F.3d 1069, 1078 (9th
Cir. 2002). The district court reasonably determined that the victims’ transfers to
Onwuzulike’s bank accounts were fraudulently induced because there was no other
plausible explanation for the transfers. United States v. Amlani, 111 F.3d 705, 719
(9th Cir. 1997).
B
The district court did not clearly err by determining that there were fifty or
more victims of Onwuzulike’s fraudulent scheme. The government submitted a
victim list from the investigative accountant that included more than fifty victims
and listed their individual losses. Given this submission and the totality of the
evidence, the district court reasonably concluded that the people on the list who
sent money to Onwuzulike were actually victims.
C
The district court did not clearly err by determining that the obstruction of
justice enhancement was appropriate. Under the Sentencing Guidelines, a district
court may impose a two-level enhancement on a defendant who “willfully
obstructed or impeded, or attempted to obstruct or impede, the administration of
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justice during the course of the investigation, prosecution, or sentencing of the
instant offense of conviction.” U.S.S.G. § 3C1.1. Application Note 4(d) specifies
that “destroying or concealing . . . evidence that is material to an official
investigation” is an example of conduct covered under this enhancement. In this
case, the London Metropolitan Police Service arrested Onwuzulike and provided
him with written notice that it would be a violation of the law if he were to transfer
any funds out of his bank accounts. After Onwuzulike was released, he withdrew
approximately £110,000 from two bank accounts he controlled. The district court
reasonably concluded that he obstructed justice by making such large withdrawals
because, even if he had not received the notice, he knew that the money would be
subject to forfeiture to repay his victims.
II
The district court did not err by ordering Onwuzulike to pay $3,965,909.97
in restitution as required by the Mandatory Victim Restitution Act of 1996
(MVRA). 18 U.S.C. §§ 3663A, 3664. We review a district court’s factual findings
regarding restitution for clear error and the legality of the restitution order de novo.
United States v. Waknine, 543 F.3d 546, 555 (9th Cir. 2008).
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A
The district court did not clearly err by ordering Onwuzulike to pay
$2,919,258.78 in restitution to his domestic victims. The MVRA requires courts to
order restitution for crimes of violence and certain property offenses, including
crimes of fraud. 18 U.S.C. § 3663A(a); (c). The government’s accountant
analyzed Onwuzulike’s bank accounts and determined that Onwuzulike owed his
domestic victims $2,919,258.78 in restitution. The accountant included only
deposits originating from U.S. banks which were traceable to specific victims. The
government also introduced affidavits from several of Onwuzulike’s victims
describing their financial losses as a result of Onwuzulike’s fraudulent scheme.
Onwuzulike did not provide a legitimate explanation for why any of the
individuals that transferred him money did so other than in response to the
fraudulent scheme. Thus, the district court did not clearly err by determining that
these transfers were fraudulently induced and are subject to restitution.
B
The district court did not clearly err by ordering Onwuzulike to pay
$1,046,651.69 in restitution to his foreign victims. The government’s investigative
accountant prepared a list of foreign victims, which specified their individual
losses, and she also submitted a declaration explaining how she determined these
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losses. This evidence was similar to the evidence the government introduced to
support its restitution order for Onwuzulike’s domestic victims. And, as with his
domestic victims, Onwuzulike did not provide a legitimate explanation for why his
foreign victims would have transferred him this money. Thus, the district court
reasonably determined that these transfers were fraudulently induced.
On appeal, Onwuzulike argues that the MVRA does not apply
extraterritorially. Although we normally review a district court’s interpretation of
a statute de novo, we review this claim for plain error because it was not
specifically raised in the district court. United States v. Benny, 786 F.2d 1410,
1417-18 (9th Cir. 1986). It is not “clear under current law” whether the MVRA
applies extraterritorially, thus the district court did not plainly err even if it
construed the MVRA in this way. United States v. Olano, 507 U.S. 725, 734
(1993).
III
Onwuzulike’s sentence was not procedurally flawed or substantively
unreasonable. The district court did not err procedurally. It correctly calculated
the Sentencing Guidelines range; treated the guidelines as advisory; considered and
explicitly referenced the 18 U.S.C. § 3553(a) sentencing factors on the record;
adequately explained the sentence; and did not presume that the Guidelines range
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was reasonable. United States v Blinkinsop, 606 F.3d 1110, 1114 (9th Cir. 2010)
(citing United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc)).
The district court did not err substantively because Onwuzulike’s sentence
was sufficient, but not greater than necessary, to accomplish the sentencing goals
of § 3553(a). United States v. Crowe, 563 F.3d 969, 977 n. 16 (9th Cir. 2009).
AFFIRMED.
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