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No. 12-5007
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Marvin J. Garbis, Senior District
Judge. (1:10-cr-00647-MJG-1)
Argued:
Before GREGORY
Circuit Judge.
and
FLOYD,
Decided:
Circuit
Judges,
and
DAVIS,
Senior
sentence.
evidence
for
He
his
affirm
the
violation.
challenges
convictions
sophisticated means.
We
now
and
the
sufficiency
sentencing
of
the
enhancement
for
convictions
However,
and
because
also
the
find
facts
do
no
not
due
process
affirmatively
I.
In June 2010, a confidential informant (CI) contacted law
enforcement to report a man named Olulater identified as the
defendantwho claimed to be a real estate agent looking to sell
counterfeit
identification
documents
for
$7,500.
Upon
(SA)
Marc
Dipaola,
the
CI
informed
Adepoju
that
the
One month
led
Adepoju
president-like
to
believe
position
at
that
a
he
knew
local
Bank
of
woman
in
America
a
who
The
vice
had
Adepoju
CI
could
withdraw
the
funds,
retain
his
portion,
pay
August
31,
2010,
Adepoju
provided
the
CI
with
IRS
birth,
and
social
security
number.
The
CI
contacted
SA
Upon SA
questioned
presented
whether
fabricated
the
accounts
checks,
created
were
by
When Adepoju
open,
law
the
CI
enforcement,
$28,000.
$70,500.
The
second
was
payable
to
T.A.
Trucking
for
After Adepoju
secured
Adepoju
search
and
warrants
arranged
for
time
Adepojus
to
home.
deliver
the
The
withdrawn
day
of
the
planned
exchange,
Adepoju
CI
called
On
the
CI,
check showed the account number but blocked out the name of the
payee.
The
officers
also
found
multiple
copies
of
check
bearing the same number but made out to different payees, one of
whom was Adepojus wife, for different amounts.
Fingerprint
government
under
identity
18
theft
charged
U.S.C.
under
18
Adepoju
1344
and
U.S.C.
with
one
1028A.
two
count
At
counts
of
of
bank
aggravated
trial,
the
CI
in
T.As
name
shortly
before
the
CI
received
his
accounts
all
listed
the
same
Temple
Hills,
Maryland
also
stated
that
he
had
not
authorized
anyone
to
open
were
fraudulent
federally insured.
the
forged
that
the
banks
deposits
were
cashiers
successfully
and
checks
withdrawn
as
been
deposited
result,
the
and
funds
been
bank
would
have
all
counts,
experienced a loss.
After
the
jury
convicted
Adepoju
on
the
the
bank
fraud
convictions,
the
district
court
imposed
the
sentences.
court
imposed
consecutively
to
the
bank
fraud
Relevant
to
this
appeal,
the
court
applied
to
the
bank
At
something
that
an
ordinary
person,
then
asked
defense
counsel
how
who
wasnt
J.A. 649.
acquiring
The
T.A.s
counsel
noted,
opening
bank
Furthermore,
account
requires
not
The government
Specifically,
information
and
that
could
this
have
been
absence
retrieved
reinforces
via
the
district
appropriate
court
based
then
on
the
concluded
effort
6
that
the
required
to
internet
view
that
J.A. 654.
enhancement
obtain
was
T.A.s
J.A. 657.
sentence
for
aggravated
identity
theft.
We
have
II.
Where
defendant
challenges
the
sufficiency
of
the
Substantial evidence is
challenging
the
sufficiency
of
evidence
Cir. 2006).
Challenging the bank fraud convictions, Adepoju cites an
absence of evidence that he opened an account at a federally
7
18 U.S.C. 1344(1).
The
completed
second
is
knowingly
attempted
or
scheme
1344(2).
to
18 U.S.C.
United States v.
The elements of
attempted
scheme
or
artifice
to
defraud
financial
United
States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002); see also
United States v. Flanders, 491 F.3d 1197 (10th Cir. 2007).
The
to
obtain
property
held
by
financial
institution
1115.
United States v. Celesia, 945 F.2d 756, 758 (4th Cir. 1991), or
that the bank suffer any loss, Loughrin, 710 F.3d at 1116.
1344(2)
conviction
does
not
demand
that
the
bank
be
A
the
obtaining
funds
from
bank
while
intending
to
defraud
an
affirmative
misrepresentation
with
respect
to
the
We disagree with
from
both
subsections,
thereby
providing
point,
his
argument
does
not
bear
of
notice
on
Notwithstanding
our
disposition
See
in
is
this
case
supports
guilty
of
committing
9
the
bank
jurys
fraud
conclusion
as
defined
that
by
1344(1).
concedes
that
attempt.
As
the
to
the
evidence
second
shows
element,
this
incomplete
Adepojus
intent
is
arguments
to
the
contrary
are
unpersuasive.
is
tends
to
unnecessary
prove
for
the
1344(1)
requisite
intent
conviction,
under
that
although
it
subsection.
United States v. Swanson, 360 F.3d 1155 (10th Cir. 2004) (risk
of
loss
is
subsumed
under
1344(1)s
defraud
financial
(6th
Cir.
1999)
(risk
of
loss
is
merely
one
way
of
Furthermore,
incomplete
checks,
attempt
Adepoju
to
execute
argues
that
scheme
he
did
involving
not
take
fraudulent
any
steps
His actions,
to
bank,
demonstrated
Adepojus
intent
to
United States v.
A means of
conjunction
with
any
other
information,
to
identify
of
number.
518
F.3d
birth,
. . .
employer
or
taxpayer
identification
234
(4th
Cir.
11
2008)
(explaining
that
the
definition
in
1028(d)(7)
applies
to
1028
and
1028A).
person;
identification
Flores-Figueroa
(2009).
an
accused
refers
v.
to
United
unaware
real
556
the
cannot
U.S.
646,
means
be
of
guilty.
647,
654-55
1202,
whether
person
States,
that
1207
the
person.
(8th
evidence
Cir.
2014).
demonstrated
Adepoju
he
knew
only
T.A.
challenges
was
real
On no less than
T.A.
before
was
real
reiterating
persontwice
this
point
on
during
direct
examination
cross-examination.
This
T.A.
was
real
person.
Therefore,
we
affirm
the
III.
Adepoju argues that the district court erred in applying a
sentencing enhancement for using sophisticated means in a bank
fraud scheme.
de novo.
2006).
we
apply
the
clearly
erroneous
standard.
United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989) (citation
omitted).
means
is
an
essentially
clear error.
factual
inquiry,
thus
we
review
for
conduct
constituted
more
than
minimal
planning);
minimal
or
minor
participant
in
crime
to
be
an
or
U.S.S.G.
especially
other
offenses
involving
2B1.1(b)(10)(C).
complex
or
theft
or
counterfeiting.
Sophisticated
especially
intricate
means
offense
conduct,
means
. . .
accounts
also
ordinarily
indicates
sophisticated
U.S.
36,
38
(1993)
(holding
that
Guidelines
with,
guideline).
or
plainly
erroneous
reading
of,
that
683 F.3d 471, 486 (4th Cir. 2012) (applying sophisticated means
enhancement under U.S.S.G. 2T1.1(b)(2) to tax fraud).
so,
sophistication
requires
more
for
demonstrating
than
Id.
the
the
Even
concealment
or
required
for
is
preponderance
enhancement.
axiomatic
of
evidence
the
the
government
must
applicability
of
prove
a
by
sentencing
identity
that
attempt
fraud
is
beyond
dispute.
Indeed,
includes
unauthorized
information.
acquisition
and
use
of
anothers
violation
form).
Therefore,
of
the
[18
U.S.C.]
realm
of
1344
especial
in
its
simplest
complexities
and
Montano, 250 F.3d 709, 715 (9th Cir. 2001) (finding that because
smuggling necessarily involves concealment, sophisticated means
requires more than what is necessary to commit the crime).
The district court clearly erred by essentially shifting
the burden to Adepoju to disprove sophistication.
See United
States v. Guzman, 318 F.3d 1191, 1198 (10th Cir. 2003) (vacating
a sentencing enhancement where the district court applied the
enhancement
after
finding
defendants position).
lack
of
evidence
supporting
the
acquiring
T.A.s
information
It began by presuming
was
accomplished
by
manner.
means]
enhancement
requires
some
means
of
United
Here, the
States
v.
Llamas,
599
F.3d
381,
389
(4th
Cir.
See
2010)
The
reasoning
for
the
enhancement
here
However, neither
the record nor common sense suggest that names, birthdates, and
16
There
information.
is
no
evidence
Additionally,
of
the
how
Adepoju
government
obtained
conceded
that
that
J.A. 655.
mere presence of the tools of fraud and the attempt to use the
same.
If
Adepojus
current
offenses
did
in
fact
employ
We
conclude
imposing
that
the
but
district
sophisticated
2B1.1(b)(10)(C).
evidence
the
This
from
the
means
result
absence
court
stems
of
clearly
erred
enhancement
not
factual
from
of
weighing
findings
in
where
the
the
See Llamas,
court
existence
find
the
exceptional
brilliance
enhancement.
more
planning.
and,
to
highly
justify
complex
schemes
sophisticated
or
means
of
than
thoughtful
or
potentially
successful
where
1344(1)
is
at
issue,
misrepresentation.
The
such
material
necessarily
amount
to
to
wrongfully
acquire
sophistication.
If
moneys,
does
Adepojus
not
efforts
is
required
to
violate
the
bank
fraud
statute
in
its
To
769, 772-73 (10th Cir. 2008); United States v. Hughey, 147 F.3d
423, 434 (5th Cir. 1998).
18
IV.
Adepoju argues that his right to due process was violated
because the facts supporting the two-year minimum for aggravated
identity theft were not properly presented to the jury.
Alleyne v. United States, 133 S. Ct. 2151 (2013).
Cf.
We apply
in
effect
at
the
time
of
the
contested
proceeding.
must
make
special
mandatory minimums.
findings
as
to
any
facts
increasing
The
transferred,
possessed,
or
identification
could
result
sentence.
only
used
in
anothers
a
means
consecutive
two-year
The jurys
of
No
V.
For the foregoing reasons, we affirm Adepojus bank fraud
and aggravated identity theft convictions.
consecutive
theft.
two-year
minimum
sentence
for
identity
resentencing
without
the
enhancement
and
consistent
with
this opinion.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
20