United States v. Oladimeji Ayelotan

Case: 17-60397 Document: 00514858253 Page: 1 Date Filed: 03/04/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 17-60397 FILED

March 4, 2019

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff–Appellee,

v.

OLADIMEJI SEUN AYELOTAN; FEMI ALEXANDER MEWASE; RASAQ

ADEROJU RAHEEM,

Defendants–Appellants.

Appeals from the United States District Court

for the Southern District of Mississippi

Before STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.

DON R. WILLETT, Circuit Judge:

Three Africa-based cybercriminals—Oladimeji Ayelotan, Femi Mewase,

and Rasaq Raheem—masterminded a sprawling international romance scam

that stole hearts, and money. Posing as bachelors (and bachelorettes) online,

these Nigerian nationals kindled digital romances with scores of lovelorn

Americans. The fraudsters sat at overseas computers, prowling the Internet

and spinning false promises of love and romance, ultimately duping their

unsuspecting victims into sending money to Nigeria and South Africa.

Many fauxmance swindlers escape scot-free, their victims, broke and

brokenhearted, too embarrassed to come forward. Not this time. A wary target

reported her suspicions, and the scammers didn’t fare as well in court as they

had online. After a 16-day trial, the jury convicted them, and the district court

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imposed lengthy prison sentences. This appeal alleges several errors—the

district court’s imposition of leg restraints during trial; the admission of emails

and a nonoriginal passport; the dismissal of a juror during trial; and the

sentences handed down.

Each argument is meritless, and we AFFIRM.

I. BACKGROUND

The transnational romance scam worked like this: Ayelotan, Mewase,

and Raheem—along with their coconspirators—stole personal information

such as names, Social Security numbers, credit card numbers, and bank

account numbers. They then impersonated their victims—getting cash

advances and transferring funds out of the victims’ accounts.

But they needed a safe way to transfer the fruits of their crimes. Thus

their digital dalliances. Using dating websites like “seniorpeoplemeet.com,”

well-honed conversation scripts, and step-by-step guides, the conspirators

cultivated online relationships, then sweet-talked their “paramours” into

laundering their money. Next, the conspirators would cajole their enamored

victims into becoming money mules, conduits for stolen funds, even providing

prepaid shipping labels for the swindled cash and goods.

Everything was going according to plan until one prospective money

mule grew suspicious. She reported her experience to the police, who ran it by

Homeland Security Investigations (the Department of Homeland Security’s

investigation arm). Agent Todd Williams, posing over email as the target

victim, helped unravel the whole scheme.

The district court held a 16-day trial, during which it put the three

defendants in leg restraints. The court also removed and replaced one of the

jurors.

The jury convicted Ayelotan and Raheem on several counts of conspiracy

to commit mail fraud, wire fraud, and bank fraud; conspiracy to commit

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identity theft, use of unauthorized access devices, and theft of government

property; mail fraud; and conspiracy to commit money laundering.

The jury acquitted Mewase of conspiracy to commit money laundering.

But it convicted him of conspiracy to commit mail fraud, wire fraud, and bank

fraud; and conspiracy to commit identity theft, use of unauthorized access

devices, and theft of government property.

The defendants filed post-trial motions for relief. But the district court

sentenced each defendant to the statutory maximum for each conviction,

running consecutively.

II. STANDARD OF REVIEW

The arguments raised on appeal involve varying standards of review. We

review decisions to shackle criminal defendants, admit evidence, and remove

jurors for abuse of discretion. 1 And it is an abuse of discretion to apply an

erroneous view of the law or to clearly err in assessing evidence. 2 We review

alleged Confrontation Clause violations de novo. 3

As for sentencing, we review fact findings for clear error and application

of the Sentencing Guidelines de novo. 4 And as the Supreme Court requires, we

review the substantive reasonableness of sentences for abuse of discretion. 5

Finally, the Supreme Court directs us to review arguments raised for the

first time on appeal for plain error. 6 In Puckett, the Court elaborated that

under this standard of review, defendants must first establish an error. 7 Next,

1 United States v. Ebron, 683 F.3d 105, 125 (5th Cir. 2012); United States v. Yi, 460

F.3d 623, 634 (5th Cir. 2006); United States v. Hope, 102 F.3d 114, 117 (5th Cir. 1996).

2 United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005).

3 United States v. Morgan, 505 F.3d 332, 338 (5th Cir. 2007) (per curiam).

4 United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007).

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

6 Puckett v. United States, 556 U.S. 129, 135 (2009).

7 Id.

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they must show that it’s clear or obvious. 8 Then, they must prove that the error

affected their substantial rights. 9 And if they satisfy these three prongs, we

may correct the error—if it “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” 10

III. DISCUSSION

Ayelotan, Raheem, and Mewase bring assorted challenges—none

availing—to their convictions and sentences:

• Ayelotan and Raheem—the shackling of their legs during trial

• Raheem and Mewase—the admission of various emails and

Mewase’s nonoriginal passport

• Ayelotan and Mewase—the dismissal of a juror

• All three defendants—their sentences

A. Shackling the defendants at trial was not an abuse of discretion.

Ayelotan and Raheem claim that shackling their legs violated their due

process rights. As the Supreme Court explained 14 years ago in Deck, the Fifth

and Fourteenth Amendments’ due process clauses require courts to have a

“particular reason” for shackling; “only in the presence of a special need.” 11 And

the Court forbids visible restraints altogether unless “justified by an essential

state interest” specific to that trial. 12

What reasons are enough? Some 25 years ago, in Wilkerson, we held that

courts may shackle defendants when there’s a danger of harm or escape. 13 As

we said then, “[w]e do not underestimate the need to restrain dangerous

defendants to prevent courtroom attacks, or the need to give trial courts

8 Id.

9 Id.

10 Id. (cleaned up).

11 Deck v. Missouri, 544 U.S. 622, 626–28 (2005).

12 Id. at 628–29 (quoting Holbrook v. Fynn, 475 U.S. 560, 568–69 (1986)).

13 Wilkerson v. Whitley, 16 F.3d 64, 68 (5th Cir. 2003).

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latitude in making individualized security determinations.” 14 And a few years

before that, in Ellender, we stated that district courts “may rely heavily on the

U.S. Marshal’s advice” in considering restraints. 15

Here, the court had valid reasons: Ayelotan and Raheem posed a danger.

And the facts show that. For example, at Ayelotan’s extradition hearing, he

and other defendants caused such a ruckus that SWAT had to be called in. The

district court stressed this concern. And given the extradition escapades, the

U.S. Marshals expressed unease too—recommending that the court restrain

the defendants at trial. The court had a valid, particularized reason for

shackling the defendants.

Plus, the defendants’ restraints weren’t visible. Neither Ayelotan nor

Raheem even claim that the restraints were visible. Neither defendant raises

any evidence suggesting that the jury saw the restraints. And Raheem asserts

merely that it’s impossible to be sure that a juror never saw him in shackles.

In sum, the district court had compelling reasons for shackling the

defendants, and there’s no evidence the jury even saw the restraints. And so

the district court didn’t violate the defendants’ due process rights.

B. The emails and copy of Mewase’s passport were admissible.

At trial, the Government admitted oodles of emails that the defendants

sent to their romantic targets. These emails all came from Google and Yahoo!

accounts. And they revealed the defendants’ fraudulent activities. They also

included instructions for money mules to send cash and progress updates on

their various schemes. 16 The defendants filed pretrial objections to admission

of the emails. But the district court held that the emails and transmittal

14 Id.

15 United States v. Ellender, 947 F.2d 748, 760 (5th Cir. 1991).

16 Id.

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records, accompanied by Google and Yahoo! records-custodian certificates,

were admissible self-authenticating business records.

On appeal, Raheem and Mewase challenge the admission of these emails

and records under the Federal Rules of Evidence and the Confrontation

Clause. Mewase also contends that admission of a duplicate copy of his

passport identification page violated the Best Evidence Rule. Both challenges

fail.

1. Federal Rules of Evidence

The Federal Rules of Evidence ban hearsay—out-of-court statements

made to prove the truth of what’s asserted. 17 But there are exceptions. Here,

each email represented two “statements” for purposes of the Federal Rules of

Evidence. First was the transmittal certificate—effectively, the email

provider’s statement that one user wrote and sent a message to another user

at the recorded time. Second, the content of each email is also a statement. We

take them in that order.

The Federal Rules of Evidence except business records from hearsay. 18

To qualify, a records custodian with knowledge must testify unless they’re

“self-authenticating.” 19 Records are self-authenticating if they include a

custodian certification that the records “meet[] the requirements of Rule

803(6)(A)–(C).” 20

All the email records from this conspiracy included certificates. The

certificates stated that Google or Yahoo! recorded the transmittal data

automatically when users send emails, as part of the regular practice of a

FED. R. EVID. 801(c) (“‘Hearsay’ means a statement that: (1) the declarant does not

17

make while testifying at the current trial or hearing; and (2) a party offers in evidence to

prove the truth of the matter asserted in the statement.”).

18 FED. R. EVID. 803(6).

19 FED. R. EVID. 803(6); FED. R. EVID. 902(11).

20 FED. R. EVID. 902(11).

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regularly conducted business activity. This satisfies Rule 803(6)’s

requirements for admission. 21 As we explained in our 1991 Wilson decision,

certificates from a records custodian that “track the language of Rule 803(6)

nearly word for word” render the records self-authenticating. 22 Thus, the

district court didn’t abuse its discretion by finding a valid hearsay exception

for the certificates.

The second possible hearsay is the emails’ substantive content: the

messages between the defendants and their coconspirators. But these were

admissible too. The Government didn’t offer these statements to prove the

content of them. 23 Same with the e-mule messages.

Rather, these statements were “the operative words of [the] criminal

action”—what we called “paradigmatic nonhearsay” in our 1981 case Jones. 24

The remaining content in the emails—updates between the coconspirators

about their criminal scheme—was admissible as opposing party and

coconspirator statements under Rule 801(d). 25

21 FED. R. EVID. 803(6) (“The following are not excluded by the rule against hearsay,

regardless of whether the declarant is available as a witness: A record of an act, event,

condition, opinion, or diagnosis if: (A) the record was made at or near the time by—or from

information transmitted by—someone with knowledge; (B) the record was kept in the course

of a regularly conducted activity of a business, organization, occupation, or calling, whether

or not for profit; (C) making the record was a regular practice of that activity; (D) all these

conditions are shown by the testimony of the custodian or another qualified witness, or by a

certification that complies with Rule 902(11) or (12) or with a statute permitting certification;

and (E) the opponent does not show that the source of information or the method or

circumstances of preparation indicate a lack of trustworthiness.”).

22 Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 272 (5th Cir. 1991).

23 FED. R. EVID. 801(c)(2).

24 United States v. Jones, 663 F.2d 567, 571 (5th Cir. 1981).

25 FED. R. EVID. 801(d)(2) (“A statement that meets the following conditions is not

hearsay: . . . The statement is offered against an opposing party and: (A) was made by the

party in an individual or representative capacity; (B) is one the party manifested that it

adopted or believed to be true; (C) was made by a person whom the party authorized to make

a statement on the subject; (D) was made by the party’s agent or employee on a matter within

the scope of that relationship and while it existed; or (E) was made by the party’s

coconspirator during and in furtherance of the conspiracy.”).

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2. Confrontation Clause

Our Confrontation Clause analysis resembles our Federal Rules of

Evidence analysis. And likewise, the district court didn’t misstep in admitting

the emails and records.

In 2004, the Supreme Court held in Crawford that the Confrontation

Clause prohibits admitting out-of-court statements as evidence against

defendants in a criminal case unless they can cross-examine the declarant. 26

But that prohibition applies only if the statements are “testimonial.” 27

And two years later in Davis, the Court explained that statements are

“testimonial” if their “primary purpose . . . is to establish or prove past events

potentially relevant to later criminal prosecution.” 28 Or as the Court explained

in Melendez-Diaz three years after that, business records must be “for the

administration of the [business’s] affairs and not for the purpose of

establishing or proving some fact at trial.” 29

Under this framework, Google and Yahoo!’s transmittal-data records

aren’t testimonial. Consider our Towns decision in 2013. 30 There, we

considered a pharmacy’s prescription-purchase logs. 31 We held that those

weren’t testimonial. 32 Rather, the pharmacy recorded those logs “ex ante to

comply with state regulatory measures, not in response to active

prosecution.” 33 It’s the same with Google and Yahoo! They didn’t create the

26 See Crawford v. Washington, 541 U.S. 36, 51–53 (2004).

27 Id.

28 Davis v. Washington, 547 U.S. 813, 822 (2006); see also United States v. Duron-

Caldera, 737 F.3d 988, 992–93 (5th Cir. 2013) (quoting Davis for that proposition).

29 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009).

30 United States v. Towns, 718 F.3d 404, 411 (5th Cir. 2013).

31 Id.

32 Id.

33 Id.

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records to prove a particular fact at a particular trial—let alone this trial. The

records are admissible as far as the Confrontation Clause goes.

So are the coconspirator statements. Take our 2011 decision in

Jackson. 34 In that case, we explained that—as a general matter—

“coconspirator statements made during the course and in furtherance of a

conspiracy” aren’t testimonial. 35 So the district court didn’t violate the

defendants’ Confrontation Clause rights by admitting this evidence.

3. Best Evidence Rule

Mewase also contends that the passport copy was inadmissible under the

Best Evidence Rule. True, the Federal Rules of Evidence require using “[a]n

original writing, recording, or photograph” as evidence of that item’s contents

at trial. 36 But the Rules clarify that “[a] duplicate is admissible to the same

extent as the original unless a genuine question is raised about the original’s

authenticity or the circumstances make it unfair to admit a duplicate.” 37

Mewase’s original passport went missing during his extradition. And

Mewase acknowledges that it wasn’t the Government’s fault. Even so, he still

claims that relying on the duplicate isn’t fair. And yet he doesn’t explain why.

So the district court didn’t abuse its discretion in admitting the duplicate.

C. The district court properly removed and replaced Juror 20.

Ayelotan and Mewase contend that the district court’s decision to remove

Juror 20 violated their due process rights. We review the removal and

replacement of a juror for abuse of discretion. 38 And as we explained in

34 United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011).

35 Id.

36 FED. R. EVID. 1002.

37 FED. R. EVID. 1003.

38 United States v. Huntress, 956 F.2d 1309, 1312 (5th Cir. 1992).

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Huntress, a court may not dismiss a juror “without factual support or for a

legally irrelevant reason.” 39

The Federal Rules of Criminal Procedure allow a judge to remove jurors

who cannot perform their duties. 40 We explained what that means long ago.

Forty-plus years ago in Smith, we held that “a juror who cannot remain awake

during much of the trial is unable to perform his duty.” 41 And in 2002, we

explained in Edwards that other good reasons for removal include a “lack of

candor” and an “inability or unwillingness to follow instructions.” 42

Here, the district court identified legally relevant reasons for removing

Juror 20. The juror slept through witness testimony; misrepresented this fact

to the district court when asked; didn’t understand, or else didn’t follow, the

jury instructions; and didn’t deliberate.

Ample evidence supported these legitimate reasons. Near the end of the

first day of jury deliberations, the foreperson delivered two notes to the court:

We have one person that is undecided, and we [cannot] get an

answer from him.

One, we have a juror that has admitted that he slept through some

of the testimony; two, he doesn’t believe you can’t go to Western

Union and pick up transaction, his opinion/own notation; three, he

refuses to follow the judge’s instruction.

After reviewing the notes, the court called in the foreperson, Juror 20, and

every other juror one at a time.

When the district court asked Juror 20 about sleeping through the trial,

he admitted that he may have “nodded off.” But he said that if he did, “it was

very minimal.” Yet his fellow jurors testified otherwise. Some said that Juror

39 Id.

40 FED. R. CRIM. P. 24(c) (permitting removal of jurors who are “unable to perform or

are disqualified from performing their duties”).

41 United States v. Smith, 550 F.2d 277, 285 (5th Cir. 1977).

42 United States v. Edwards, 303 F.3d 606, 631–32 (5th Cir. 2002).

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20 admitted that he “was asleep some of the time, so [he] may have missed

things.” And others said he confessed that “he may not have heard everything

he needed to hear” since he fell asleep.

Many jurors even said they saw him sleeping more than just a “minimal”

amount, including his neighboring juror:

I sat next to [Juror 20], I noticed that there was quite a few times,

a lot of times, that I would look over and notice that he was

asleep. . . . It was more than once a day . . . . I do believe that it

was enough to miss key information.

And several other jurors believed that Juror 20 simply couldn’t follow the law.

Juror 19, for example, testified that the jury pointed out specific

instructions to Juror 20, which “he refused to follow”—e.g., “considering only

the evidence presented” and following “the law that’s in the instructions.”

Another juror questioned Juror 20’s comprehension: “He spent three hours

reading [the Court’s] instructions yesterday, and he got to Page 5. We’ve tried

to talk to him, and he just refuses.”

Based on this evidence, the district court removed Juror 20. But Ayelotan

and Mewase argue that the court really removed Juror 20 because he was a

“hold-out”; because he “clearly questioned Mr. Ayelotan’s guilt.” True, Juror 20

resisted convicting. Yet as we noted in Edwards, even “hold-out jurors are not

immune from dismissal based upon just cause.” 43

The district court had legitimate reasons to dismiss Juror 20. And there

was strong factual support for those legitimate reasons. Removing Juror 20

was not an abuse of discretion.

D. Sentencing Challenge

The district court sentenced Ayelotan, Raheem, and Mewase to

practically interminable prison terms. The court calculated the total intended

43 Edwards, 303 F.3d at 634.

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loss of their scheme: over $25 million. At a joint sentencing hearing, the court

heard testimony from a postal inspector and two case agents from Homeland

Security Investigations. They testified on the loss amount and the defendants’

roles.

For Ayelotan, the court imposed a 22-level increase for the intended loss.

And it imposed a 4-level enhancement for his leadership role. This came to a

total Guidelines offense level of 43. Given Ayelotan’s criminal history, his

Guidelines sentence was life imprisonment. The court reduced that to the

within-Guidelines statutory maximum of 95 years. 44 And it sentenced Ayelotan

to that.

For Raheem, the court also assigned a total offense level of 43 for the

intended loss and his leadership role. His initial sentencing range was life

imprisonment too. But the court again decreased it. His within-Guidelines

statutory maximum was 115 years. 45 And the court sentenced him to that.

Finally, for Mewase, the court also applied the same 22-level increase for

the intended loss. The resulting Guidelines range was 262 to 327 months. The

court reduced that to 262 to 300, the statutory maximum. The court then

sentenced him to 25 years.

All three defendants now challenge their sentences on various grounds.

1. Leadership Enhancement

On appeal, Ayelotan and Raheem object to their leadership

enhancements. 46 And Ayelotan says that the court should’ve given him a

minor-role reduction.

As we explained in Hebert, the preponderance of the evidence must show

that the defendant was “the organizer or leader of a criminal activity that

44 See U.S. SENTENCING GUIDELINES MANUAL § 5G1.2(b).

45 See id.

46 Id. § 3B1.1(a).

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involved five or more participants or was otherwise extensive.” 47 We will

reverse the enhancement only if the district court clearly erred. 48

To begin with, the district court found—and the trial evidence

supported—that this was a major criminal undertaking. It involved far more

than five participants. As for leadership, the commentary to § 3B1.1 lists

factors for assessing a defendant’s role:

• 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. 49

The commentary also clarifies that more than one person can qualify as a

leader of the same criminal group. 50

Ayelotan argues that the second superseding indictment proves that his

role was “peripheral in substance” and “peripheral in duration.” He claims that

the only accusation against him was that he emailed shipping-label

information.

But the district court specifically relied on several § 3B1.1 factors in

determining leadership roles. At sentencing, the court heard testimony from

case agent Williams. Agent Williams testified that Ayelotan was among the

“top people within the group of indicted defendants.” Williams asserted that

47 See United States v. Hebert, 813 F.3d 551, 560 (5th Cir. 2015).

48 Id.

49 U.S. SENTENCING GUIDELINES MANUAL § 3B1.1 cmt. 4.

50 Id.

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Ayelotan was a “central hub to a number of other co-conspirators on a daily

basis.” Agent Williams also identified Raheem as one of four coconspirators “at

the top of th[e] hierarchy.”

Williams based this on their time spent on the conspiracy, their day-to-

day involvement, and the number of coconspirators who reported to them. The

district court relied on this testimony. And it determined that Ayelotan “was

involved in almost every scam involved in the offense”; that he “participated in

planning or organizing it”; and that he directly controlled other conspirators.

Similarly, the court credited Williams’s testimony on Raheem’s leadership in

the organization.

The district court did not clearly err considering the evidence before it—

not with Ayelotan and not with Raheem.

2. Eighth Amendment

Now for the first time on appeal, Ayelotan and Raheem raise an Eighth

Amendment argument. They assert that effective life sentences for nonviolent

crimes are cruel and unusual punishment. We review arguments raised for the

first time on appeal for plain error. 51 Although Ayelotan acknowledges the

plain-error standard, he never briefed anything beyond the first step of the

plain-error test: whether an error occurred.

Yet even if Ayelotan had sufficiently briefed the other steps of the plain-

error analysis, he still wouldn’t be entitled to relief. Yes, in extraordinary

cases, term-of-years sentences can be cruel and unusual. In 1992, we held in

McGruder that sentences violate the Eighth Amendment when they’re “grossly

disproportionate” to the convicted conduct. 52

51 E.g., United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).

52 McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992).

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But as we’ve explained before, this review is narrow. In our 2016 case

Mills, we underscored that a reviewing court may not “substitute its judgment

for that of the legislature nor the sentencing court.” 53 And four years before

that, in Looney, we acknowledged that under Supreme Court precedent,

“successful Eighth Amendment challenges to prison-term lengths will be

rare.” 54

Ayelotan maintains that an effective life sentence for a nonviolent,

financial crime is—by definition—grossly disproportionate. Yet he cites no

cases finding that lengthy sentences for financial crimes violate the Eighth

Amendment. He cites only to the Supreme Court’s 2010 decision in Graham 55

and its 1992 decision in Robinson. 56

But in Graham, the Supreme Court limited its decision to life sentences

for minors. 57 And in Robinson, the Court held that a law criminalizing

narcotics addiction was unconstitutional. 58 The Court struck down the law

because its purpose was to stigmatize addicts; not because the sentence was

too long. 59 Neither decision applies here.

Yet our decision in Mills does apply. There, we held that “the Guidelines

are a convincing objective indicator of proportionality.” 60 And in Looney, we

upheld effective life sentences for the nonviolent offenses of possession with

intent to distribute methamphetamine and possession of firearms. 61

53 United States v. Mills, 843 F.3d 210, 218 (5th Cir. 2016) (citations omitted).

54 United States v. Looney, 532 F.3d 392, 396 (5th Cir. 2008).

55 See generally Graham v. Florida, 560 U.S. 48 (2010).

56 See generally Robinson v. California, 370 U.S. 660 (1992).

57 See Graham, 560 U.S. at 81.

58 Robinson, 370 U.S. at 677.

59 Id. at 677 & n.5.

60 Mills, 843 F.3d at 218.

61 Looney, 532 F.3d at 396.

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Ayelotan’s and Raheem’s within-Guidelines sentences didn’t violate the

Eighth Amendment. The district court did not err, plainly or otherwise.

3. Intended Loss Calculation

Raheem and Mewase challenge the intended loss calculation of over $25

million. In 2012, we laid out the rule for calculating intended losses in Hebron:

“The applicable loss is generally the greater of actual loss—which includes only

reasonably foreseeable harm resulting from the fraud—and intended loss—

which includes the harm intended to result from the offense.” 62 And district

courts need only make “a reasonable estimate of the loss” based on the

evidence. 63

We review these calculations for clear error. 64 In Hull, we explained that

we review the foreseeability of the loss for clear error too. 65 Then in Sanders,

we established that we review the loss calculation itself for clear error. 66 We

won’t overturn these factual findings “unless they are implausible in light of

the record as a whole.” 67

Raheem retorts that the record doesn’t show that they “intended to inflict

a loss” of $25 million or more. First, that misstates the standard. The

Sentencing Guidelines don’t require the defendant to have intended the

specific loss amount. 68 Instead, the district court simply has to conclude that

the defendant knew or reasonably should have known that the scheme would

cause the harm. 69

62 United States v. Hebron, 684 F.3d 559, 560 (5th Cir. 2012); see also United States v.

Fairley, 880 F.3d 198, 215 (5th Cir. 2018) (quoting Hebron).

63 Id. (citing U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. n.3(C)).

64 Id.

65 United States v. Hull, 160 F.3d 265, 269 (5th Cir. 1998).

66 United States v. Sanders, 343 F.3d 511, 519 (5th Cir. 2003).

67 Id.

68 U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. 3.

69 Id.

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And the district court relied on testimony that showed this: “Mr. Raheem

and Mr. Ayelotan were directly involved in most, if not all of [the activity used

to calculate the loss amount], and to the extent they were not directly involved,

it was certainly reasonably foreseeable to them as part of the jointly

undertaken criminal activity which was part and parcel to this conspiracy.”

Second, the record does show that the intended loss was over $25 million.

The district court considered the PSR’s calculations. And it heard testimony

from the postal inspector and two case agents. Based on that, the court

calculated the loss at $52 million.

Finally, Raheem disputes the district court’s determination that there

were at least 37,817 credit cards involved in the conspiracy. Rather, Raheem

urges that “there is no information all of the alleged credit cards were real.”

Yet the district court heard specific evidence suggesting that the credit card

numbers corresponded to real accounts. For example, Williams testified that

the first six numbers on the cards—generally identifying the financial

institutions—matched with real institutions; and that the stolen information

included three-digit CVV codes on the back of each card.

In any event, Raheem and his coconspirators’ intended to get their hands

on valid credit card numbers. Otherwise, their scheme could bear no fruit.

Phony credit cards won’t even buy you Monopoly Money—let alone cash

advances. Even if some card numbers were fake, that wouldn’t matter. Again,

their intent dictates the intended loss.

4. Substantive Reasonableness of Sentence

Finally, Raheem and Mewase contend that their sentences are

substantively unreasonable. But in 2009, we reiterated in Cooks that we

presume a within-Guidelines-range sentence is reasonable. 70 And we tend to

70 United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (cleaned up).

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defer to the sentencing court. As we noted in our 2011 decision in Scott, “the

sentencing court is in a better position to find facts and judge their import

under the § 3553(a) factors.” 71

To rebut the presumption, a defendant must show one of three things:

(1) the court failed to consider a factor that it should’ve given significant

weight; (2) the court gave significant weight to an irrelevant or improper factor;

or (3) the court clearly erred in balancing sentencing factors. 72

Raheem argues that his sentence exceeds the aim of the § 3553(a)

sentencing factors. But his sentence was within-Guidelines. So it’s presumed

reasonable. And here, Raheem hasn’t rebutted that presumption.

The district court detailed its justifications and discussed the § 3553(a)

factors. The court noted that Raheem was “a leader or organizer” in “a broad

and wide-reaching and extensive conspiracy involving criminal conduct that

went on for a number of years”; one that “involved the manipulation and taking

advantage of, whether financially or otherwise, a large number of victims.”

Mewase argues that his sentence is unreasonable because of

“unwarranted sentencing disparities” between him and some coconspirators

who pleaded guilty. But this doesn’t rebut the presumption of reasonableness

either. Mewase offers no proof that he was so similarly situated to

coconspirators who received lesser sentences that the disparities are

“unwarranted.” Nor does the PSR suggest that. Rather, many other

coconspirators played much smaller roles, accepted responsibility, or

cooperated with the Government.

In sum, we have consistently declined to merely reweigh the sentencing

factors. Yes, Raheem’s within-Guidelines sentence is severe. But the district

71 United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011) (internal quotation marks

and citation omitted).

72 Id.

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court weighed the appropriate factors. And its sentence isn’t substantively

unreasonable. The district court also grounded Mewase’s sentence in an in-

depth consideration of the § 3553 factors. So neither sentence is substantively

unreasonable.

IV. CONCLUSION

The district court committed no error, and we AFFIRM in all respects.

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