United States v. Olabimpe Olejiya

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 17, 2014 Decided June 10, 2014

No. 12-3082

UNITED STATES OF AMERICA,

APPELLEE

v.

OLABIMPE M. OLEJIYA, ALSO KNOWN AS BIM,

ALSO KNOWN AS BIMPE,

APPELLANT

No. 12-3090

UNITED STATES OF AMERICA,

APPELLEE

v.

OLUYINKA AKINADEWO, ALSO KNOWN AS OLU BLACK,

ALSO KNOWN AS OLU DUDU, ALSO KNOWN AS OLU,

APPELLANT

Appeals from the United States District Court

for the District of Columbia

(No. 1:11-cr-00150)

2

Lisa B. Wright, Assistant Federal Public Defender, argued

the cause for appellant Akinadewo. Richard Seligman,

appointed by the court, argued the cause for appellant Olejiya.

A.J. Kramer, Federal Public Defender was on brief. Tony

Axam Jr., Assistant Federal Public Defender, entered an

appearance.

Anne Y. Park, Assistant United States Attorney, argued the

cause for the appellee. Ronald C. Machen Jr., United States

Attorney, and Elizabeth Trosman, Suzanne G. Curt and Bryan

G. Seeley, Assistant United States Attorneys were on brief.

Before: HENDERSON and MILLETT, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Olabimpe

Olejiya and Oluyinka Akinadewo both pleaded guilty to one

count of conspiracy to commit bank fraud based on their

participation in a scheme that involved opening fraudulent

bank accounts in the name of unwitting individuals, funding

the accounts with fraudulent checks and wire transfers and

withdrawing funds before the accounts’ fraudulent nature was

detected. They now raise parallel challenges to their

sentences, claiming that the district court erred in calculating

their respective United States Sentencing Guidelines offense

levels by (1) improperly applying an aggravated role

enhancement of three levels for Olejiya and four for

Akinadewo, see U.S.S.G § 3B1.1, and (2) failing to make the

factual findings necessary to support a 12-level increase for

both based on the amount of intended loss involved in the

conspiracy, see U.S.S.G. § 2B1.1(b)(1). For the reasons that

follow, we affirm the district court’s judgments.

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I. Background

As admitted by Olejiya and Akinadewo in their plea

proceedings, the conspiracy lasted from April 2007 to

December 2007. The conspiracy’s goal—enriching its

members—was achieved by the following overt acts. On

September 12, 2007, two checking accounts were opened at

E*Trade via the internet, using the name, birthdate and social

security number of A.S. A.S., however, was unaware of the

accounts and had given no one permission to use his personal

information. In the following months, members of the

conspiracy transferred $109,200 from A.S.’s legitimate

account at the Armed Forces Bank to the two fraudulent

E*Trade accounts set up in his name and withdrew over

$50,000 of that amount before the fraud was detected.

Moreover, beginning as early as July 2007, numerous calls

from a cell phone belonging to Akinadewo were made to both

Armed Forces Bank and E*Trade in an apparent effort to

monitor accounts. Akinadewo did not have a legitimate

account at either bank. On October 6 and 8, 2007, Akinadewo

used a debit card associated with one of the fraudulent E*Trade

accounts to purchase twelve money orders, each worth $500,

from a Walmart in Landover Hills, Maryland. On October 7,

2007, Olejiya purchased four $500 money orders from three

Walmart stores in Laurel, Bowie and Landover Hills,

Maryland.

Another fraudulent checking account in the name of

A.S.—this one at Branch Banking and Trust (BB&T)—was

opened via the internet on August 25, 2007. Although

Akinadewo did not have an account at BB&T, six calls were

made to the bank from his phone during the time of the

conspiracy. On September 11, 2007, Akinadewo made an

initial deposit of $50 in the account at a BB&T branch in the

District of Columbia. Three days later, he made another $50

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deposit at a Maryland branch. On October 3, 2007, using an

ATM in Silver Spring, Maryland, Akinadewo deposited a

$20,000 check, drawn on one of the fraudulent E*Trade

accounts, into the fraudulent BB&T account. The next day,

he attempted to repeat the maneuver with a $30,000 check

drawn on one of the E*Trade accounts but it bounced. All

told, members of the conspiracy successfully withdrew over

$30,000 from the BB&T account by cashing checks drawn on

the account and making ATM withdrawals.

On November 3, 2007, the name, birthdate and social

security number of another unwitting individual, U.J., were

used to open another BB&T checking account via the internet.

That account was funded with $8,000 transferred from yet

another fraudulent account, this one opened with Charles

Schwab in the name of A.S. According to Olejiya, on

November 30, 2007, he contacted Akinadewo and informed

him that another conspirator, Samuel Akinleye, was willing to

cash a check written on the fraudulent BB&T account in the

name of U.J. Akinadewo then met up with Olejiya and

Akinleye, wrote a $4,000 check to Akinleye and signed U.J’s

name. Akinadewo instructed Akinleye to cash the check and

return the money to Akinadewo, which Akinleye did in

exchange for a portion of the proceeds. During his plea

colloquy, Akinadewo denied any recollection of writing the

check on November 30, 2007, instead stipulating more

generally that “during the time period of the conspiracy, [he]

had access to checks in others’ names, and provided some of

these checks to co-conspirators to either cash or deposit.”

4/20/12 Tr. 30–31.

All told, the conspiracy resulted in actual losses of

$90,987.48 before the fraud was detected, which amount

includes all of the funds withdrawn from the fraudulent

accounts. When the funds that passed through the fraudulent

5

accounts are added, the intended loss of the conspiracy totals

$363,939.76.

On May 13, 2011, a grand jury returned a one-count

indictment charging Olejiya and Akinadewo with conspiracy

to commit bank fraud in violation of 18 U.S.C. §§ 1344 and

1349. On March 22, 2012, Olejiya entered a plea of guilty.

Olejiya’s presentence report (PSR) calculated his Guidelines

range at 41-51 months, based on a criminal history category of

II and an offense level of 21. The offense level included a

3-level enhancement, to which Olejiya objected, for his role as

a “manager or supervisor.” See U.S.S.G. § 3B1.1(b). It also

included a 12-level increase for an intended loss from the

offense greater than $200,000, to which Olejiya objected solely

on fairness grounds, asking the district court to grant a variance

from the Guidelines. See U.S.S.G. § 2B1.1(b)(1)(G). At the

sentencing hearing, the district court found that Olejiya

qualified for the 3-level aggravated role enhancement and the

12-level increase and sentenced him to 35 months’

imprisonment.1 He timely appealed.

Akinadewo pleaded guilty on April 20, 2012. His PSR

calculated the applicable Guidelines range at 41-51 months,

based on a criminal history category of II and an offense level

of 21. Akinadewo’s offense level included a 4-level

enhancement for his role as an “organizer or leader,” see

U.S.S.G. § 3B1.1(a), and a 12-level increase for the loss

amount, see U.S.S.G. § 2B1.1(b)(1)(G). Like Olejiya,

Akinadewo objected to the aggravated role enhancement and

made a similar “fairness” objection to the loss amount. At the

1

The district court sentenced Olejiya to a six-month concurrent

term on one count of misuse of a passport in violation of 18 U.S.C.

§ 1544, which charge resulted from Olejiya’s attempt to flee to

Canada to avoid prosecution.

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sentencing hearing, the district court found that Akinadewo

qualified for the 4-level aggravated role enhancement and the

12-level increase and sentenced him to 46 months’

imprisonment. He timely appealed.

II. Aggravated Role

Olejiya and Akinadewo both argue that the district court

erred by enhancing their respective offense levels by three and

four points for their aggravated roles in the offense. “In

reviewing a sentencing decision, we address purely legal

questions de novo, accept the district court’s factual findings

unless they are clearly erroneous, and give ‘due deference’ to

that court’s application of the Guidelines to the facts.” United

States v. Saani, 650 F.3d 761, 765 (D.C. Cir. 2011). The

district court’s fact-specific determination that a defendant was

an “organizer or leader” or a “manager or supervisor” warrants

due deference, see United States v. Quigley, 373 F.3d 133, 138

(D.C. Cir. 2004); United States v. Yeh, 278 F.3d 9, 15 (D.C.

Cir. 2002), a standard which reflects “the recognition that the

district courts should be afforded some flexibility in applying

the guidelines to the facts before them,” United States v. Kim,

23 F.3d 513, 517 (D.C. Cir. 1994); see also United States v.

Tann, 532 F.3d 868, 874 (D.C. Cir. 2008) (due deference

standard survives United States v. Booker, 543 U.S. 220

(2005)).

The Guidelines provide for an increase in the offense level

if the defendant played an aggravated role in the offense:

(a) If the defendant was an organizer or leader of a

criminal activity that involved five or more

participants or was otherwise extensive, increase by 4

levels.

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(b) If the defendant was a manager or supervisor (but

not an organizer or leader) and the criminal activity

involved five or more participants or was otherwise

extensive, increase by 3 levels . . . .

U.S.S.G. § 3B1.1. We consider several factors in applying the

aggravated role enhancement, including

the exercise of decision making authority, the nature

of participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a

larger share of the fruits of the crime, the degree of

participation in planning or organizing the offense,

the nature and scope of the illegal activity, and the

degree of control and authority exercised over others.

Id. cmt. n.4; see also United States v. Graham, 162 F.3d 1180,

1185 n.5 (D.C. Cir. 1998) (although factors distinguish

between 3- and 4-level enhancement, they are relevant to

whether any aggravated role enhancement applies). No single

factor is dispositive. Graham, 162 F.3d at 1185; see also

United States v. Brodie, 524 F.3d 259, 270 (D.C. Cir. 2008);

United States v. Kelley, 36 F.3d 1118, 1129 (D.C. Cir. 1994).

A. Olejiya

Olejiya argues that the district court erred in applying the

“manager or supervisor” enhancement because he did not

exercise “control” over criminally liable subordinates. The

defendant must manage or supervise one or more other

participants in the criminal activity—not simply the property

or assets of the conspiracy, as, according to Olejiya, the district

court concluded—in order to warrant an aggravated role

enhancement. U.S.S.G. § 3B1.1 cmt. n.2. We have said that

“[a]ll persons receiving an enhancement [under § 3B1.1] must

8

exercise some control over others.” Graham, 162 F.3d at

1185; accord United States v. Clark, 747 F.3d 890, 896 (D.C.

Cir. 2014); United States v. Smith, 374 F.3d 1240, 1250 (D.C.

Cir. 2004). We elaborated on this statement in Quigley,

explaining that “[w]e understand the concept of ‘control’ or

‘authority,’ implicit in the notion of ‘management’ or

‘supervision,’ to connote some sort of hierarchical

relationship, in the sense that an employer is hierarchically

superior to his employee.” 373 F.3d at 140.2

During Olejiya’s sentencing hearing, the district court

heard testimony from Special Agent Spencer Brooks of the

Federal Bureau of Investigation (FBI). He explained that

conspirators in this type of bank fraud play different roles.

High-level participants typically control the fraudulent bank

accounts, checkbooks and debit cards and are responsible for

funding the accounts. Low-level participants—often referred

to as “runners”—are typically recruited by high-level

participants to do the front-line work of cashing fraudulent

checks. In exchange, the runners receive a small portion of

the proceeds. Agent Brooks testified that, consistent with this

model, Olejiya recruited runners, including Samuel Akinleye

and Okorie Awa, to the conspiracy. Awa was caught on

camera cashing three fraudulent checks in the amounts of

$3,000, $4,500 and $5,500 and Agent Brooks testified that,

according to Awa, Olejiya gave Awa the checks, told him to

cash them and paid him between $500 and $1,000 for his

2

One judge of this Court has noted tension between Graham’s

suggestion that “control” is required for an aggravated role

enhancement and the fact that control is but one of several

non-dispositive factors listed in the application notes. See Clark,

747 F.3d at 897–99 (Randolph, J., concurring). We need not

explore that tension here, however, because the district court

correctly concluded that both Olejiya and Akinadewo exercised

control over other participants.

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effort. The district court credited Agent Brooks’ testimony

and concluded that, although Olejiya was not the kingpin, he

was also not merely a runner but instead at least a manager or

supervisor.

Seeing no error in the district court’s factual findings and

granting due deference to the district court’s application of the

Guidelines to the facts, we agree that Olejiya was a manager or

supervisor. By recruiting others to the scheme, Olejiya

ensured that he would not perform the risky task of cashing a

fraudulent check but would instead superintend underlings

who performed the task at his behest. His recruitment of

Akinleye and Awa satisfies one of the application note factors

and his supervision of Awa’s check-cashing demonstrates the

existence of others, including decision-making authority and

control exercised over others. See U.S.S.G. § 3B1.1 cmt. n.4.

This case is more similar to those in which we have found the

requisite hierarchical relationship, see, e.g., Brodie, 524 F.3d at

270–71; United States v. Wilson, 240 F.3d 39, 46–47 (D.C. Cir.

2001); Kelley, 36 F.3d at 1129, than it is to those in which the

defendant was “simply a barnacle clinging to the outer hull of

middle management,” Graham, 162 F.3d at 1184.

B. Akinadewo

Akinadewo also argues that the district court erred in

applying the “organizer or leader” enhancement because he did

not exercise control over other conspirators. Akinadewo’s

argument is considerably weaker than Olejiya’s. Akinadewo

stipulated that he had access to the scheme’s checkbooks and

provided checks to co-conspirators to either cash or deposit,

making him the sort of high-level participant that relies on

runners to take the risks. Akinadewo also made several initial

deposits to fund the fraudulent accounts and numerous calls

were made from his cell phone to the banks used in the scheme,

10

from which the district court inferred that he was keeping tabs

on the various accounts. Although Akinadewo contends that

he was merely the account manager, there is ample evidence

that he controlled other participants. At Akinadewo’s

sentencing hearing Agent Brooks testified that, according to

Awa, Akinadewo supervised one of Awa’s trips to cash a

fraudulent check by following in another car; after Olejiya had

collected the money from Awa, Olejiya gave it to Akinadewo.

Agent Brooks also testified that on one occasion—the one

disputed in the plea colloquy—Akinadewo wrote a check to

Akinleye for him to cash; Akinleye did so and returned the

money to Akinadewo in exchange for a portion of the

proceeds. The district court credited Agent Brooks’

testimony and found that there was “compelling evidence” that

Akinadewo was an organizer or leader. At bottom,

Akinadewo asks us to draw an inference from this evidence

other than the inference reasonably drawn by the district court

but, even if Akinadewo’s preferred inference (that he merely

managed the accounts) were plausible, we would nonetheless

defer to the district court’s reasonable application of the

Guidelines. See Yeh, 278 F.3d at 15.

III. Loss Amount

The Guidelines provide that, for certain crimes, the

offense level is to be increased based on the amount of “loss”

involved in the offense, which is defined as “the greater of

actual loss or intended loss.” U.S.S.G. § 2B1.1(b)(1) & cmt.

n.3. The loss amount is one part of the defendant’s relevant

conduct that—in the case of jointly undertaken criminal

activity—includes “all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken

criminal activity.” Id. § 1B1.3(a)(1)(B). Because “the scope

of the criminal activity jointly undertaken by the defendant . . .

is not necessarily the same as the scope of the entire

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conspiracy,” id. cmt. n.2, “the Guidelines expressly require

sentencing courts to determine the scope of each defendant’s

conspiratorial agreement.” United States v. Mellen, 393 F.3d

175, 183 (D.C. Cir. 2004); see United States v. Childress, 58

F.3d 693, 722–24 (D.C. Cir. 1995). “[W]e have not hesitated

to remand for resentencing when the district court has failed to

make these individualized findings.” United States v.

Graham, 83 F.3d 1466, 1479 (D.C. Cir. 1996) (collecting

cases).

The district court increased both Olejiya’s and

Akinadewo’s offense levels by twelve points to reflect the

amount of intended loss involved in the entire

conspiracy—$363,939.76. They now contend that the district

court failed to comply with the “strict procedural mandate,”

Childress, 58 F.3d at 722, to support the increase by making

particularized factual findings regarding the scope of their

conspiratorial agreement.

A. Olejiya

The Government contends that Olejiya waived any

challenge to the loss amount by affirmatively conceding below

that he was responsible for the full amount of the intended loss

involved in the conspiracy. Olejiya contends that he, at most,

forfeited the issue. “Whereas forfeiture is the failure to make

the timely assertion of a right, waiver is the intentional

relinquishment or abandonment of a known right.” United

States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks

omitted). “Forfeiture occurs when silence on the part of the

appealing party has prevented examination by the trial court

and our review is for plain error.” United States v. Laslie, 716

F.3d 612, 614 (D.C. Cir. 2013) (citations and quotation marks

omitted). “By contrast, waiver is intentional, and

extinguishes an error so that there is no review, because the

12

defendant has knowingly and personally given up the waived

right.” Id. (quotation marks omitted). We believe that

Olejiya’s repeated and emphatic concessions, made in written

submissions and at sentencing, constitute a knowing and

intentional waiver.

As noted, the PSR calculated Olejiya’s offense level as 21,

which included a 12-level increase to reflect the full amount of

intended loss involved in the conspiracy. In his supplemental

sentencing memorandum, Olejiya conceded that the PSR’s

Guidelines calculation was correct as to the applicable loss

amount. See Appendix for Appellants (App.) 113 (“The PSR

[] quite correctly . . . adds 12 levels . . . .”). He argued,

however, that the Guidelines “unfairly dictate consideration of

intended loss amounts.” Id. At Olejiya’s sentencing hearing,

the prosecutor noted his uncertainty whether Olejiya was

disputing the Guidelines calculation or simply asking for a

downward variance from the applicable range. See 10/11/12

Sent. Tr. 9–10. 3 After the district court inquired, defense

counsel repeated his concession that “the probation office

correctly calculated the guidelines and that under the

guidelines they can and perhaps should take into account the

intended loss.” Id. at 10. Although defense counsel pressed

the argument that “the way the guidelines work in these fraud

cases . . . [is] not fair,” he repeated that Olejiya was “not

disputing that under the guidelines, the court can add 12

points.” Id. at 12; see also id. at 78 (“Can you legally accept

that? Of course you can. I have admitted that from Day One.

. . . I can’t appeal it.”). As a result of these concessions, the

3

See generally Gall v. United States, 552 U.S. 38, 51 (2007)

(noting difference between “procedural error” of court’s failure to

calculate Guidelines range properly and sentence’s “substantive

reasonableness”).

13

district court treated the loss amount as undisputed. Id. at 56,

96.

We recently held that a defendant who conceded the

propriety of a sentencing enhancement in a plea agreement and

at sentencing waived any challenge to the enhancement

because he

did not merely fail to object to the enhancement; his

decision not to challenge the enhancement was

deliberate. Starting with his plea agreement and

continuing through filings and arguments at his

sentencing hearing, [he] affirmed that the district

court should use the enhancement in calculating his

Guidelines range. His focus was elsewhere, on

persuading the court to sentence him outside of the

Guidelines.

Laslie, 716 F.3d at 614; see also United States v. Jackson, 346

F.3d 22, 24 (2d Cir. 2003) (finding waiver where defendant

conceded applicability of enhancement in letter to sentencing

court and at sentencing hearing). So too here. Although,

unlike Laslie, Olejiya did not plead guilty pursuant to a plea

agreement, he nonetheless conceded that the PSR correctly

calculated his Guidelines range. He instead focused his

efforts on persuading the court to sentence him below that

range.

Whether or not there was a strategic purpose for Olejiya’s

concession is irrelevant so long as it was indeed a knowing and

intentional decision and not a mere oversight: “Even if we

could determine counsel’s reasons for the concession, the

District Court was entitled to rely” on it. United States v.

Moore, 703 F.3d 562, 572 (D.C. Cir. 2012). Moore held that a

defendant who objects to the PSR’s Guidelines calculation but

14

subsequently withdraws the objection has waived the

opportunity to raise it on appeal. Id. at 571–72; accord United

States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014); United

States v. Bowers, 743 F.3d 1182, 1184–85 (8th Cir. 2014);

United States v. Venturella, 585 F.3d 1013, 1018–19 (7th Cir.

2009). The initial objection is significant because it

demonstrates that the defendant did not simply overlook the

issue. See United States v. Zubia-Torres, 550 F.3d 1202,

1204–07 (10th Cir. 2008) (discussing distinction between

waiver and forfeiture in similar case); cf. Olano, 507 U.S. at

733. Although Olejiya did not withdraw an initial objection,

we nevertheless think it plain that he was aware of the relevant

conduct issue and simply chose not to contest it. The

Government’s sentencing memorandum—under a bold-faced

heading labeled “Enhancement . . . for Loss Amount”—cited

Childress for the proposition that only conduct reasonably

foreseeable to the defendant can be attributed to him at

sentencing. App. 86–87. And at the sentencing hearing, the

district court made a point of clarifying that Olejiya’s

acceptance of the loss amount calculation in his sentencing

memorandum was indeed a knowing concession that no

procedural error had occurred. See 10/11/12 Sent. Tr. 9–10.

Just as “[t]his court does not allow parties to reopen issues

waived by stipulation at trial . . . , we will not review a belated

challenge on an issue a party agreed not to dispute in

sentencing proceedings below.” Laslie, 716 F.3d at 615

(citing United States v. Harrison, 204 F.3d 236, 240 (D.C. Cir.

2000)); cf. United States v. Warren, 42 F.3d 647, 658 (D.C.

Cir. 1994) (defendant waived argument that crack cocaine

found in cigarette package should not have been considered in

calculating Guidelines offense level after conceding opposite

below). Olejiya waived any argument that the district court

committed procedural error.

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B. Akinadewo

As noted, Akinadewo did not raise the loss attribution

issue below. The Government contends that he waived his

challenge to the loss amount by conceding that the Guidelines

were correctly calculated. We assume without deciding that

Akinadewo merely forfeited the issue because we conclude

that he cannot establish plain error. See Tann, 532 F.3d at

872.

On plain-error review, the defendant bears the burden of

demonstrating that any error was prejudicial. Olano, 507 U.S.

at 734. In the sentencing context, that burden is “slightly less

exacting than it is in the context of trial errors.” United States

v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994). Nonetheless, the

defendant must “offer some reason to suspect that the District

Court’s error likely resulted in an incorrect sentence.” United

States v. Williams, 358 F.3d 956, 966 (D.C. Cir. 2004).

Akinadewo has not done so.

The Government’s “Flow of Funds” chart, as Akinadewo

concedes, explicitly links him to $126,200 in stolen funds—a

$109,200 wire transfer from A.S.’s legitimate Armed Forces

Bank account to two fraudulent E*Trade accounts and a

$17,000 check drawn on another legitimate account and

deposited in the fraudulent Charles Schwab account. 4

Although that amount is less than the $200,000 necessary for

the 12-level enhancement, Akinadewo has given us no reason

to believe the district court would likely reach a different

sentence. As discussed, Akinadewo played a supervisory role

4

Akinadewo deposited a $20,000 check and attempted to

deposit another $30,000 check, both drawn on the fraudulent

E*Trade accounts. He also purchased $6,000 in money orders

using a debit card associated with the E*Trade accounts.

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in the scheme and had access to the checkbooks for the

fraudulent accounts. From the numerous calls made from

Akinadewo’s cell phone (or his sister’s) to all of the banks

involved in the scheme, the district court inferred that

Akinadewo was checking the balances on the accounts. It was

therefore “reasonably foreseeable” to Akinadewo that more

than $200,000 in fraudulent funds was in fact held in those

accounts and thus involved in the conspiracy. U.S.S.G.

§ 1B1.3(a)(1)(B); see United States v. Wilson, 605 F.3d 985,

1036–37 (D.C. Cir. 2010) (relying in part upon defendant’s

“regular and constant communications with Mr. Franklin about

the quantity of PCP on the street” to establish conspiracy’s

entire amount was foreseeable by, and therefore attributable to,

defendant). Because the balance in the fraudulent accounts

formed the basis for the district court’s loss calculation, we

have no reason to think that the district court would attribute a

lower amount to Akinadewo on remand. See Childress, 58

F.3d at 724 (no plain error where it is not “reasonably likely

that the district court would have assigned [defendant] a

different and lower base offense level if it had made the

requisite findings”).

For the foregoing reasons, we affirm the judgments of the

district court.

So ordered.